IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.29 of 2010 1. The State of Bihar through Chief Secretary, Government of Bihar, Patna 2. The Secretary, at present known as Principal Secretary, Personnel and Administrative Reforms Department, New Secretariat, Bihar, Patna 3. Deputy Secretary, Personnel and Administrative Reforms Department, New Secretariat, Bihar, Patna 4. The Finance Commissioner, at present known as Principal Secretary, Department of Finance, New Secretariat, Bihar, Patna 5. The Agriculture Production Commissioner, at present known as Principal Secretary, Department of Agriculture, New Secretariat, Bihar, Patna 6. The Special Secretary, Department of Agriculture, New Secretariat, Bihar, Patna 7. The Administrator, Bihar State Agriculture Marketing Board (abolished), Pant Bhawan, Bailey Road, Patna …………….. Respondents / Appellants Versus Nandu Singh, son of late Ram Kathin Singh, resident of Village – Bajitpur, Police Station – Ghoshi, District – Jehanabad …………….. Petitioner/Respondent ----------- For the Appellants : Mr. Parul Ranjan, A.C. to A.A.G. IX For the Respondent : Mr. Jai Prakash Verma, Advocate Present THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE DR. RAVI RANJAN O R D E R (22.03.2010) As per Dr. Ravi Ranjan, J.- I.A. No. 90 of 2010: This application has been filed for condoning the delay of about 25 days in preferring this appeal. - 2 - 2. Heard the parties. 3. On being satisfied with the statements made in this application explaining reasons due to which the delay has occurred in preferring this appeal, this interlocutory application is allowed and the delay is hereby condoned. L.P.A. No. 29 of 2010 4. Now we proceed to consider this appeal on its merit. 5. The State of Bihar and others on being aggrieved by the order dated 12.10.2009 passed by a learned Single Judge in C.W.J.C. No. 13405 of 2009, have preferred this appeal. 6. Shorn of all unnecessary details, the facts which would be necessary for consideration of this appeal are detailed as follows:- 7. The writ petitioner – respondent was appointed on temporary basis as Laboratory Attendant (Class IV post) vide office order no. 925, memo no. 1573 dated 24.9.1979 (as contained in Annexure 2 to the writ petition). Thereafter he was - 3 - appointed on the post of Care Taker on ad hoc basis on 5.3.1990. However, his appointment was challenged in C.W.J.C. No. 1967 of 1990. The aforesaid writ petition was disposed of by a Division Bench of this Court vide order dated 1.2.1991 (as contained in Annexure 4 to the writ petition) holding that the ad hoc arrangement is purely temporary and no right is accrued to any body on the basis thereof. Accordingly, it was directed that the impugned order shall not be operative from 6.3.1991 as the stand of the Bihar State Agriculture Marketing Board (hereinafter referred to as “the Board”) was that the appointment was not by way of promotion rather was ad hoc one and the period was going to expire on 5.3.1991. It was also observed that it would be open to the Board to take steps for regular appointment on the post of Care Taker. Subsequent thereof the writ petitioner-respondent was once again appointed at the post of Care Taker on 19.8.1992. However, again such appointment was challenged in C.W.J.C. No. 8923 of 1992 and vide - 4 - order dated 25.2.1994 the aforesaid appointment was quashed by this Court. The Board through its Managing Director again issued a general notice on 5.12.1994 for filling up the post of Care Taker and invited applications from the employees, who had requisite qualification detailed therein. Pursuant to such notice the writ petitioner – respondent also applied for the post of Care Taker and, vide Annexure 5 to the writ petition, the Establishment Committee took a decision for his appointment. Pursuant thereof, the writ petitioner-respondent was appointed on the post of Care Taker by the order dated 29.6.1995 of the Board as contained in Annexure 6 to the writ petition. On 17.6.2002 the Board vide resolution no. 22 of the Board of Directors accepted the recommendation of Establishment Committee for converting the post of writ petitioner – respondent to the post of Market Secretary Grade – B and, thereafter, vide Annexure 9 to the writ petition dated 17.7.2002, the post of writ petitioner – respondent’s was converted to the post - 5 - of Market Secretary Grade – B. Thereafter, the Bihar Agriculture Produce Market (Repeal) Act, 2006 (hereinafter referred to as “the Repeal Act, 2006”) came into existence with effect from 01.9.2006 and as per the provision as contained in Section 3 of the aforesaid Repeal Act, 2006, the Bihar Agriculture Produce Market Act, 1960 (hereinafter referred to as “the Act of 1960”) and the Rules of 1975 framed under such Act stood repealed. As a result of Section 4 of the Repeal Act, 2006, the entire assets and liabilities of the Board or of the Market Committees or Bazar Samiti existing under the earlier Act of 1960 had been vested in the State of Bihar. The relevant provision for absorption of officers and employees of the Board / Market Committee / Bazar Samiti stands enunciated in Section 6 of the Repeal Act, 2006. Under the aforesaid provision, the State Government has been empowered to constitute a Committee of three Secretaries to prepare detailed scheme of absorption, retirement, compulsory retirement or voluntary - 6 - retirement as well as other service conditions of officers and employees of the Board and such scheme prepared by the group of Secretaries aforesaid has to be placed before the State Government for its approval. Such scheme was eventually prepared by the Committee of the three Secretaries and the same was approved by the State Government on 15.3.2007 and vide memo no. 2627 dated 21.6.2007 a decision had been taken for absorption of 1710 employees of the Board and Committee. However, post of Market Secretary Group – B was not recommended by the Administrator before the group of Secretaries for their absorption under the State Government services. The writ petitioner – respondent, being aggrieved by the aforesaid decision, approached this Court by filing a writ petition bearing C.W.J.C. 10306 of 2008, which was disposed of by a learned Single Judge of this Court directing the Administrator of the Board to send the name of the petitioner to the Committee with or without his - 7 - comment. Committee was directed to take a decision as to whether the petitioner was entitled for absorption or not. The Committee of Secretaries eventually took a decision as contained in memo no. 4116 dated 20th August, 2009 (Annexure 13 to the writ petition), holding that the writ petitioner – respondent was not fit to be absorbed. The aforesaid order had been challenged by the writ petitioner – respondent by filing C.W.J.C. No. 13405 of 2009. The learned Single Judge, by the order dated 12.10.2009 allowing the writ petition, directed the respondents – appellants to consider the adjustment of writ petitioner – respondent in accordance with provisions of Repealing Act after finding a suitable position for him commensurate to his current status within a specified period of three months. 8. The respondents – appellants (State of Bihar & ors.) have preferred this appeal challenging the aforesaid decision of the learned Single Judge. 9. Heard the parties. 10. It had been submitted on behalf of - 8 - the respondents – appellants that the learned Single Judge has committed grave error in allowing the writ petition on the ground that the Repeal Act, 2006 no where give the Committee of three Secretaries an option of inquiry into the initial appointment made several years back and then disentitle the employee from absorption and/or other benefits as contemplated in Section 6(2) of the Repealing Act. It was asserted that the power to prepare scheme of absorption would definitely include within its power to prepare a scheme for non absorption also if the appointment of the concerned employee was found to be illegal and further, since the scheme prepared by the aforesaid Committee was duly approved by the State Government as per the provisions contained in Annexure 6 of the Repealing Act, such scheme would have the statutory force in the eye of law. According to the appellants, as per the scheme prepared under the statute, all the employees whose appointment were made illegally or irregularly would have to be terminated. It had also been - 9 - submitted that the employees of the Board / Committee were to continue in service on the same terms and conditions up-till a scheme under the Act is prepared and thereafter their absorption by a decision or otherwise was to be taken in accordance with scheme itself. It had further been submitted that since there was no requirement of Market Secretary Group – B, the conversion of the post of Care Taker to Market Secretary was irregular and, thus, a correct decision had been taken by the Committee by refusing to absorb the writ petitioner – respondent. 11. On the other hand, it was contended on behalf of the writ petitioner - respondent that in terms of Section 6(1) read with Section 6(4) of the Repeal Act, 2006, the Committee concerned had no jurisdiction to inquire into the validity of initial appointment. It had only to ascertain as to whether at the time of dissolution of the Board in terms of the Repealing Act, the writ petitioner – respondent was an employee of the Board or the Market Committee or not. If a person was found to be an - 10 - employee, he was first entitled to continue with same remuneration and, thereafter, had to be absorbed / adjusted. The writ petitioner – respondent had produced a copy of order dated 9.12.2009 passed by a Division Bench of this Court in C.W.J.C. No. 7346 of 2009 heard with C.W.J.C. No. 7365 of 2009. It was submitted that in identical matter the Division Bench approved the views of the learned Single Judge expressed in the order under challenge in this appeal. As such, it was contended, that this appeal, thus, is destined to fail. 12. For proper appreciation of this case, it would be apt to quote the relevant provision i.e. Section 6 of the Repeal Act, 2006 as under:- 6. Absorption of officers and employees of Bihar Agriculture Marketing Board/ Market Committee/ Bazar Samiti. – (i) On and from the date of repeal of the Act, all officers and employees of the Board, shall remain in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such time State Government has taken such final decision as is provided hereafter. (ii) The State Government shall constitute a committee of Secretaries consisting of three Secretaries who shall prepare detailed scheme of absorption, - 11 - retirement, compulsory retirement or voluntary retirement, other service conditions of officers and employees of the Board and the Committee. Scheme prepared by group of Secretaries shall be placed before the State Government within two months from the date of enforcement of the present Act. The State Government shall thereafter approve the scheme : Provided that it shall be open to the State Government to modify, amend or suggest modification or amendment and the scheme thereafter shall be made operational in such form and intent as finally approved by the State Government. Scheme approved by the State Government shall be considered as statutory scheme framed under this Act. (iii) After the scheme approved by the State Government is enforced it shall be fully implemented in its form and intent within three months from the date of its enforcement. (iv) Group of Secretaries constituted under Sub Section (ii) above shall be competent to decide utility and deployment of offices and employees of the Board or the Committee during transition period and it shall not be open to any officer or employee to question decision of group of Secretaries. (v) Scheme framed under this Act shall have effect, notwithstanding any other Act, Ordinance, Rule, regulation, direction, order or instruction and condition of service of officers and employees of the Board or the Committee, shall be governed and regulated under the scheme to the extent provision has been made in the scheme : Provided further that it shall be competent for the State Government to amend, modify, alter or substitute the scheme so framed for removal of difficulties in implementation of the scheme.” - 12 - 13. A Division Bench of this Court in its aforesaid judgment rendered in C.W.J.C. No. 7346 of 2009 (Mahesh Prasad Singh v. The State of Bihar & ors.) and C.W.J.C. No. 7365 of 2009 (Dinesh Prasad Singh & anr. V. The State of Bihar & ors.) had found following issues involved therein. “ The issues raised in these cases are (1) whether the group of Secretaries in exercise of power under Section 6 of the Bihar Agriculture Produce Market (Repeal) Act 2006 exceeded their power in suggesting a scheme for terminating the service of some of the employees and officers of the dissolved Bihar State Agriculture Produce Marketing Board and whether the State Government also exceeded its jurisdiction and violated Section 6 of the Repeal Act 2006 in approving the proposed scheme, particularly paragraph 3.1 thereof (ii) whether clause 3.1 of the approved scheme, even if it be presumed to be valid, permits the respondents to enquire and declare appointments of the petitioners in the Board service to be illegal on grounds other than the three indicated therein (iii) whether appointment of the petitioners could be declared to be illegal after they had served as regular employees of the Board long before its dissolution on account of regularization orders passed by competent authority against available vacancies and on finding them fulfilling the qualifications for appointment (iv) whether the impugned orders of termination have been passed - 13 - arbitrarily ignoring the regularization of the services of the petitioner and by placing wrong and impermissible reliance upon regulation 58(2) of the Board’s Regulations and by wrong insistence on the requirement of approval by the Bureau of Public Enterprises to the appointment of the petitioners.” 14. While answering the issues the Division Bench had come to the conclusion that under Section 6 of the Repeal Act, 2006, it is not possible to infer any power in the group of Secretaries or in the State Government that they could go back into the service records or affairs of the Board to find out as to whether the appointment process adopted by the Board was lawful or not. While coming to aforesaid conclusion, the Division Bench aforesaid, had noticed and affirmed the views of learned Single Judge taken in the order dated 12.10.2009 passed in C.W.J.C. No. 13405 of 2009, which is under challenge in this appeal. It would be apt to quote the relevant passage as under:- “x x x x x In fact, case of another employee of the Board, Nandu Singh involved similar question and has been recently allowed by a learned single Judge by judgment and order dated 12.10.2009 passed in CWJC No.13405 of 2009. We are - 14 - also of the same view that once it is not in dispute that the petitioners were employees of the Board at the time of passing of the Repeal Act 2006, the respondents must prepare suitable scheme to take care of their adjustment also like other officers and employees of the Board. They have no power to further classify officers and employees of the Board on any criteria such as length of service or regularity or irregularity in appointment or regularization.” 15. The aforesaid Division Bench has also observed that the persons who were in admitted employment of the Board for number of years and have been treated to be regular employees of the Board cannot be bifurcated into two categories – legally appointed and the irregularly or illegally appointed. The aforesaid Division Bench had come to following conclusion:- “ x x x x x Hence, in our view, the respondents have failed to show that they had any power to go into the legality or irregularity of appointment of the officers and employees of the dissolved Board. The stand of the respondents would require reading much more in Section 6 (ii) of the Repeal Act 2006 than what the Legislature has actually provided. The words “officers and employees of the Board” will need to be qualified by the words- “legally and validly appointed”. Besides that it will have to be presumed that by implication the respondents have also been given power to hold inquiry - 15 - and take action for dismissal of the officers and employees of the erstwhile Board on the ground that they were not validly appointed by the Board.x x x x x” 16. In the aforesaid case also the issues were raised by the State authorities questioning the power of the Boards for regularization of the employees and it had been held that Board was statutory authority and under that statute there was no provision empowering the State Government to give direction to the Board in the matter of appointments and service conditions of its employees. In the present case also it is an admitted position that the petitioner was appointed as Care Taker by the Board and the Board subsequently had converted the post of Care Taker into the Market Secretary Grade – B. This order, passed by the Board was neither challenged nor needed any approval by the State Government as has been observed by the Division Bench of this Court in C.W.J.C. No. 7346 of 2009 (Mahesh Prasad Singh v. The State of Bihar & ors.) and C.W.J.C. No. 7365 of 2009 (Dinesh Prasad Singh & anr. V. The State of Bihar & ors.). Not only - 16 - that the views of the learned Single Judge expressed in the impugned order, already stands approved in the aforesaid case. We are also having similar views. 17. Thus, it is held that under the provisions of the Repeal Act, 2006, the Committee of the Secretaries of the State of Bihar did not have any power to go into the illegality or irregularity of appointment of officers and employees of the dissolved Board. Only course open was to absorb the petitioner, as admittedly he was an employee of the Board at the time of coming into existence of the Repeal Act. Thus, there is no reason warranting interference in the impugned order passed by the learned Single Judge in this intra Court appeal. 18. As a result this appeal fails and, accordingly, is dismissed. However, there shall be no order as to costs. I agree. Patna High Court The 22nd March, 2010 NAFR Sanjay (Dipak Misra, C.J.) (Dr. Ravi Ranjan, J.)