CIVIL WRIT JURISDICTION CASE No.5210 OF 2003 With CIVIL WRIT JURISDICTION CASE NO.5292 OF 2003 WITH CIVIL WRIT JURISDICTION CASE NO. 5211 OF 2003 WITH CIVIL WRIT JURISDICITON CASE NO.5894 OF 2003 ____ In the matter of applications under Article 226 of the Constitution of India. ____ In CWJC No.5210 of 2003 1. Dinesh Sharma son of late Baban Sharma, resident of village – Khanpura, P.S. Paliganj, District – Patna. 2. Ganauri Rajak son of late Hari Rajak, resident of village – Harnichak, P.S. Phulwari Sharif, District – Patna. 3. Amrendra Narain Singh son of Sri Panchan Singh, resident of village – Katipathar, P.S. & District – Banka. 4. Ram Babu Singh son of late Gopal Singh, resident of Village – Sipara, P.S. Phulwarisharif, District – Patna. 5. Jai Shankar Prasad Singh son of late Rajeshwar Prasad Singh, resident of village – Nagrah, P.S. Naugachhia, District – Bhagalpur. 6. Sudhir Kumar Jha, son of late Ganesh Jha, resident of Village – Chainpur, P.S. Bangaon, District – Saharsa. 7. Bhagwan Singh, son of Sri Nathun Prasad, resident of Mohalla – Mosaallahpur, P S Kadamkuan, District-Patna. 8. Braj Bhushan Prasad Sinha son of late Ram Chandra Prasad Sinha, resident of Village – Gidha P S – Koilwar, District- Bhojpur. 9. Ramayan Prasad Sah son of late Jag Narain Sah, resident of village – Shivivahar, P.S. Suryapura, District – Rohtas. 10. Ram Nandan Sharma, son of Sri Krishna Nand Sharma, resident of Village – Baduri, P.S. Bikram, District – Patna. 11. Hare Ram alias Hare Ram Kumar, son of late Nathuni Kumar, resident of village – Dumari, P S – Simari, District – Buxar. 12. Kamleshwar Pandey son of Sri Sheojee Pandey, resident of village – Pandey Chhapra, P S – Rasoolpur, District – Saran. 13. Baiju Devi, wife of late Prabdhash Kumar Pathak, resident of Karnpura, P S and District – Supaul. 14. Smt. Baiju Devi daughter of late Chhataharia Ram, resident of Village – Kunouli, P S – Birpur, District – Saharsa. 15. Sushil Kumar Jha son of sri Dineshwar Jha, resident of village – Bhagwanpur, P.S. Bathanaha, District – Sitamarhi. 16. Kartik Prasad Singh son of late Ripohan Prasad Singh, resident of village – Bhotia, P S – Simari Bakhatiarpur, District – Saharsa. 17. Madan Prasad Singh son of Sri Laxmi Prasad Singh resident of village Panchgachhiya, P S – Tol Gaharwar, District- Saharsa. 18. Arjun Paswan son of Sri Saryu Paswan resident of village Agna, P S – Asthawan, District – Nalanda. 19. Randhir Kumar Sinha son of late Jagdish Prasad at present resident of Saketuri, Road No.5, P S – Patrakarnagar, District – Patna. 20. Bhagirath Singh son of Sri Mogal Singh resident of village Umdha P.S. Mofussil Chhapra, District – Saran. 21. Shyam Bahadur Singh son of Sri Dehari Singh resident of village Umedha P S Mofussil Chhapra, District – Saran. 22. Jitendra Prasad Singh son of Sri Janardan Prasad Singh, resident of village Rauni, P S Rajpur, District-Buxar. 2 23. Yugeshwar Paswan son of Sri Sonelal Paswan, resident of village Monika Masti, P S Begusarai Mofussil, District Begusarai. 24. Sachchida Nand Singh son of late Ram Bilas Singh resident of village Sirnawan, P S – Bena, District – Nalanda ______ Petitioners Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Water Resources Department, Bihar, Patna. 2. The Under Secretary, Water Resources Department, Bihar, Patna. 3. The Deputy Secretary, Water Resources Department, Anisabad, Patna. 5. The Chief Engineer, Planning and Monitoring, Water Resources Department, Bihar, Patna. 6. The Chief Engineer, Water Resources Department, Purnea. 7. The Chief Engineer, Water Resources Department, Siwan. 8. The Superintending Engineer, Punpun Flood Protection Circle, Anisabad, Patna. 9. The Superintending Engineer, Design Planning and Monitoring, Water Resources Department, Patna. 10. The Executive Engineer, Punpun Flood Protection Division, Patna. _________ Respondents In CWJC No.5292 of 2003 1. Bhartendu Singh alias Bhartendu Prasad Singh, son of late Janardan Singh, resident of village – Saidavpur, P.S. Fatwa Gouri Chak, District – Patna. 2. Upendra Prasad Singh alias Upendra Kumar Singh, son of late Janardan Singh, resident of village – Saidavpur, P S – Fatwah, Gauri Chak, District- Patna. ______ Petitioners Versus 1. THE STATE OF BIHAR through the the Secretary cum Commissioner, Water Resources Department, Bihar, Patna. 2. The Under Secretary, Water Resources Department, Bihar, Patna. 3. The Deputy Secretary, Water Resources Department, Anisabad, Patna. 4. The Chief Engineer, Water Resources Department, Patna. 5. The Superintending Engineer, Punpun Flood Protection circle, Anisabad, Patna. 6. The Executive Engineer, Punpun Flood Protection Division, Patna. _______ Respondents In CWJC No.5211 of 2003 Md. Zafar Kalim son of Md. Abdul Hai, Quarter No.22/A, Khagaul Road, Gardanibagh, Post-Anisabad, District-Patna, employed as Typist cum clerk in the office of Superintending Engineer, Flying Squad Circle no.2, Water Resources Department, Patna, at present working on deputation in the office of Law Officer, Water Resources Department, Patna. ________ Petitioner Versus 1. THE STATE OF BIHAR through Commissioner and Secretary, Water Resources Department having his office in Sinchai Bhawan, Bailey Road, Police station – Shastrinagar, District-Patna. 3 2. The Deputy Secretary to Government of Bihar, Water Resources Department, Sinchai Bhawan, Bailey Road, Patna. 3. The Under Secretary to Government of Bihar, Water Resources Department, Sinchai Bhawan, Bailey Road, Patna. 4. The Chief Engineer, Water Resources Department, Anisabad, Patna. 5. The Superintending Engineer, Punpun Flood Protection Circle, Anisabad, Patna. 6. The Superintending Engineer, Flying Squad Circle No.2, Water Resources Department, Patna. 7. The Executive Engineer, Punpun Flood Protection Division, Punpun, Anisabad, Patna, Police station – Gardanibagh, Patna. 8. The Law Officer, Water Resoruces Department, Vishashwaraiya Bhawan, Bailey Road, Patna. _________ Respondents In CWJC No.5894 oF 2003 1. Moti Lal Singh son of Daya Nath Singh, resident of village Sobhi Dumra, Police Station – Arrah Mofussil, District – Bhojpur. 2. Braj Kishore Prasad son of late Maheshwar Prasad, resident of village Mohanpur, Police Station – Kurhani, District – Muzaffarpur. _____ Petitioners Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Water Resources Department, Bihar, Patna. 2. The Under Secretary, Water Resources Department, Bihar, Patna. 3. The Deputy Secretary, Water Resources Department, Bihar, Patna. 4. The Chief Engineer, Water Resources Department, Anisabad, Patna. 5. The Superintending Engineer, Punpun Flood Protection Division, Patna. 6. The Executive Engineer, Punpun Flood Protection Division, Anisabad, Patna. 7. The Executive Engineer, Water Ways Division, Biharsharif, Nalanda. 8. The Executive Engineer, Saran Canal Division, Daraunda Camp, Chapra. __________ Respondents For the petitioners : M/S. Rajendra Prasad Singh, Sr. Advocate, Dilip Kumar Tewari, Rajendra Narain, Naseem Yahya and Anju Narain. For the State: M/S. Prabhat Kumar Singh (SC-21), Amitabh Bhardwaj and Md. Fazal Rahman (GP-6). P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi, J. I.A. No. 5258 of 2005 and I.A. No.3982 of 2007 are for substitution of petitioner No.5 and 3 namely, Jai Shankar Prasad and Amrendra 4 Narain Singh (of CWJC No.5210 of 2003), who during the pendency of the writ application have died leaving behind their wife namely, Sandhya Devi and Manju Devi respectively as legal heirs. Let the name of Sandhya Devi be substituted in place of petitioner No.5 Jai Shanker Prasad and Manju Devi in place of petitioner No.3 Amrendra Narain Singh. Both the Interlocutory Applications are allowed. 2. I.A. No. 2863 of 2003 is for impleading Chief Engineer, Water Resources Department, Anisabad, Patna as respondent No.4. Let the same be allowed. 3. All these writ applications have been heard together as they were tagged together since similar questions of fact and law have emerged. They all happen to be dismissed employees, based on separate orders which have come to be passed by the respondents i.e the Department of Water Resources, Government of Bihar. The termination orders related to the year 2003 and all those orders came to be challenged in these writ applications. 4. When the mater was taken up on 25.7.2003, learned Single Judge stayed the orders of termination till further hearing in the matter. Subsequently the writ applications came to be admitted for final hearing. 5. There is a long story behind the appointment/engagement of these petitioners starting some time in the year 1978-79. According to the 5 narration in the writ applications, in the Water Resource Department two circles came to be created, which included a circle for Punpun Flood Protection. When the circles were created, necessary infrastructure was not there. The Executive Engineer was given liberty or leeway to make adhoc appointments as a stop-gap arrangement. It is not in dispute that most of these appointments came to be made at the level of Class-III or Class-IV and was for a period of 3 months. It is another story that three months appointments have carried on for 30 years now, due to various intervening circumstances which includes some decision taken by the State authorities and some judicial orders as well, which came to be passed in the matter or similar matters on an earlier occasion. 6. One thing, however, which emerges is that all these petitioners came to be regularized at one point of time, which would be evident from the notifications annexed in CWJC No.5210 of 2003 as Annexure-16 series. Majority of them came to be confirmed from 1.8.1989 though a few left over persons have also been accommodated on subsequent dates by subsequent notifications. 7. But the issue did not rest at that because the question of the so-called illegal appointments on adhoc basis and continuance of certain employees so appointed after 18.10.1978 was raked up as an issue, 6 which would be evident from Annexure-22 dated 1.4.2003. Annexure-22 is a communication issued by the Under Secretary addressed to the Chief Engineer, Water Resources Department. The letter gives the background to such appointments, the policy of the government and the need to remove such employees from service came to be issued and the order of termination followed. Thereafter these writ applications were filed challenging the decision of the respondents. 8. Counsels representing the petitioners submit that even though their initial appointment was for a period of three months but there is an indication that they were allowed to continue by the policy decision, which came to be taken by the government from time to time. Whatever be the circumstances under which such policies were decided and even the High Court in CWJC No. 3224 of 1981 had expressed its desire to ensure that the cases of the petitioners would be taken up for regularization and till it is done, they would not be removed. The notifications regularizing the services of the petitioners thereafter came to be issued, which are Annexure-16 series. In this background it is submitted that whether it is open to the respondents to label the appointments of these petitioners to be illegal or irregular or whatever it may be termed in this regard. Another significant aspect is that taking the 7 background to the prolonged dispute with regard to the status of these employees, the High Court had passed an order of stay against the order of termination. The order of stay has continued to work in favour of these petitioners and they still continue to be in service. In this background whether it will be equitable on the part of the Court to allow the respondents/ State to terminate their services and send them home when they are only inches away from the age of superannuation. 9. Learned counsel representing the State has vehemently opposed the writ applications on the ground that the very entry of these petitioners in the service of the State was for a fixed tenure of three months and that too without following any procedure or guidelines for such appointments. What was illegal at the inception will continue to be illegal even at this stage and the petitioners have no special right to continue in service. The order of termination is required to be upheld. Even, according to some of the documents brought on record by the petitioners, there is a communication that the government has been rather firm in matters of such appointments and a terse kind of communication has been issued to one and all at the level of the Chief Secretary to ensure that no appointment on daily wage is made in any office without following the procedure for such appointments. 8 10. The stand taken by the State would have merited consideration provided they were not party to the decision for such appointments and the continuance of these petitioners. Whatever be the circumstances, the fact stands that the three months appointment has continued for almost 30 years now and there are notifications of the department concerned conferring a kind of permanency upon these petitioners and those notifications cannot be wished away merely because the government woke up in the year 2003 and discovered that the appointments or the continuance of these petitioners are said to be illegal. 11. The Court has intentionally restrained itself from adjudicating all the dimensions and the disputes on the question of illegality of the appointment of the petitioners or their continuance including the circumstances under which Annexure-16 series came to be issued. But taking into consideration that the petitioners have continued to be attached with the system or the department for many a years and the order of termination did not take effect because of the order of stay passed by the High Court in the year 2003, it would indeed be inequitable now to allow dismissal of the petitioners, to be left to fend for themselves and their family at the fag end of their life. There are certain circumstances to indicate that even though the appointments of these petitioners may not be strictly within the parameters 9 of the guidelines issued for such appointments or the touchstone of Articles 14 and 16 of the Constitution of India but then the situation is also a creation of the State and it will amount to giving the State an unfair advantage on their conduct as well who have allowed things to drift from one decade to the next and thereafter. 12. In the totality of the circumstances, the impugned orders of termination passed against the petitioners are hereby quashed and the writ applications are allowed. (Ajay Kumar Tripathi,J) Patna High Court: The 14th September, 2010. NAFR (R K Pahtak)