IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10243 of 2006 1. VIDYANAND JHA 2. SADANAND JHA 3. RAJ KISHORE PRASAD JAISWAL 4. MAHENDRA PRASAD 5. RAMA SHISH PANDIT 6. RAJ KISHORE PRASAD SINGH --------- PETITIONERS Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioners:- Lalan Kumar Singh, Advocate For the Respondents:- Mr. P. Tekriwal, G.A.I 7 09.03.2011 Petitioners have challenged the orders of their conversion/reversion from work charge establishment in regular pay scale to a daily wages employee and for a direction to respondents for their absorption in the permanent establishment. Petitioners’ prayer is for quashing of a letter Nos. 1299,1331,5218,5221, 5216, 5217 dated 2.9.2002 and 19.8.2002 (Annexure-6 series), whereby petitioners have been reverted from work charge establishment to daily wagers employees. These termination orders have been issued Placing reliance on the finance Department’s resolution No. 8954 dated 23.7.1975 as well as Finance Department’s resolution no. 3058 dated 22.10.1984. Impugned letters have been challenged by the petitioners on the ground that reversion orders have been passed in violation of Rule 59(3) of the P.W.D. Code. It has also been stated that 2 since petitioners were absorbed in the regular scale of pay in the work charge establishment on the basis of the decision of a duly constituted departmental Selection Committee with the approval of the superior authorities, they could not have been reverted to the status of daily wagers after 22 years when the nature of the work is perennial and the petitioners have remained in work charge establishment for more than one year, as such eligible for their absorption in the permanent establishment. Petitioners were initially appointed as Nalkup Khalasi, which is a Class IV post, on daily wage basis in the year 1980-82 by a competent authority against the sanctioned vacant strength. They continued to work against these posts as daily wager till the year 1987. The duly constituted Departmental Selection Committee took a decision on 11.12.1987 that daily wages employee appointed prior to 1.4.1982 and continuously working for 240 days should be taken in work charge establishment in the regular scale of pay. Accordingly, petitioners were taken into work charge establishment in the regular pay scale vide memo no. 51 dated 19.1.1988 and Memo no. 571 dated 21.12.1989. Since, then petitioners were being paid 3 their salary in the regular scale of pay, their service books were opened. G.P.F., Gratuity and LIC amount were also being deducted from their monthly salary, like other regular employees of the State Government. Suddenly payment of salary of petitioner Nos. 3,4,5 and 6 was stopped, as such they preferred CWJC No. 3163 of 1992 for redressal of their grievance. The writ application was disposed off directing the respondents to make payment of salary and in the light of the direction issued by the High Court the Engineer-in-Chief-cum- Special Secretary, P.H.E.D. issued direction to competent authority to start making payment of salary to petitioner nos. 3,4,5 and 6. It seems that in different Government departments appointments of daily wagers as well as appointment in the work charge establishment made in mass scale by the authorities was noticed by the Government. By memo no. 8954 dated 23.7.1975 the Finance Department took away power vested in the Officer to create posts in the work charge establishment. However by another resolution No. 3058 dated 22.10.1984 a provision was made that employees appointed in the work charge 4 establishment up to 21.10.1979 and continuing satisfactorily for five years should be absorbed. Some of the departments faced difficulty in implementing the subsequent resolution dated 22.1.1984 and on the face of the earlier resolution dated 23.7.1975 the Government relaxed the resolution dated 23.7.1975 with a view to implement the resolution dated 22.10.1984. The Government thereafter issued another resolution dated 20.9.1990, whereby the question of absorption of the employees was considered and it was resolved that employees who have completed five years satisfactory service in the work charge establishment as on 22.10.1984 i.e. who have been appointed on or prior to 23.10.1979 in terms of resolution dated 22.10.1984, they will be absorbed. Subsequently another instructions of Department of Personnel contained in Memo no. 5940 dated 1.8.1985 was issued which provided that no person working on daily wages, who has not been continuously engaged for 240 days prior to 1.8.1985 should be continued to be engaged. All persons appointed on daily wages after 1.8.1985 was deemed to have been illegally appointed and the departments were directed to disengage those persons. 5 Counsel for the petitioners has submitted that admittedly the petitioners were appointed as daily wagers in the year 1980-82 and had continued for more than 240 days prior to 1.8.1985, as such there was no reason for considering their appointment as an illegal appointment and disengaging them from their service. It has also been submitted that legality and validity of absorption of daily wagers appointed prior to 1.1.1988 and absorption in the time scale of pay in the work charge establishment was examined by the State Government and categorical decision vide memo no. 389 dated 28.8.1998 was communicated by the Secretary to Government to all the Executive Engineer of Public Health Engineering Department intimating the Government decision to this effect that on reconsideration of the matter the State has taken a decision to the effect that all work charge employees, who were appointed after 1.1.1988, their salary and pay shall be withdrawn by the drawing and disbursing Officer and before sending the cheque/bills in the treasury the order of competent authority relating to their absorption in the work charge establishment from daily wages post shall be taken. It has also been stated that that the Commissioner-cum-Secretary of 6 the Finance Department dated 21.3.1998 had recommended that the daily wager, who were absorbed in work charge establishment after 1.1.1988, their service could not be terminated and for making payment of their salary sufficient money will be required. Petitioners’ grievance is that despite the fact their absorption was duly approved by the Cabinet. The Commissioner-cum-Secretary vide order contained in Annexure-6 series reverted them back from work charge establishment to a daily wager employees. This order was completely illegal and without jurisdiction as the decision taken at Ministerial level could have been recalled or set aside by the Cabinet itself and not by an executive order issued by the Commissioner. It has also been submitted that admittedly the nature of work is perennial which is apparent from the fact that petitioners have continued in service since 1980-82 and instead of terminating them from service they have been reverted to the post of daily wagers. In this way there was no legal and good reason for passing such order. Counter affidavit has been filed on behalf of the State in which reliance has been placed on the 7 Finance Department’s memo No. 8954 dated 23.7.1975 and Finance Department Resolution No. 3058 dated 22.10.1984. Through these two letters the Government has decided that such employees of the work charge establishment, who have completed five years satisfactorily in the work charge establishment on 22.10.1984 and appointed prior to 23.7.1975 in terms of resolution No. 3058 dated 22.10.1984 and resolution No. 6394 (2) dated 23.10.1987 could only continue in the work charge establishment. So far others are concerned; their appointment in work charge establishment is illegal. In support of the stand taken by the State, several decisions passed in writ application as well as by the LPA Bench have been annexed as Annexures F and G series to the counter affidavit. On perusal of these decisions, I find that the writ petitioners in all those cases were appointed as daily wager subsequent to 1985. On this ground only their absorption in work charge establishment was found illegal. Since, initial appointment of such employees as daily wager itself being subsequent to appointed date i.e. 1.8.1985, they could not have been absorbed in the work charge establishment. So far these petitioners are concerned, 8 they were appointed in year 1982-84. In the year 1987 they were shifted to work charge establishment as employees in permanent scale under the recommendation of the Departmental Committee constituted for such selection. The State has not chosen to dismiss these petitioners, even upon finding that they were shifted to work charge establishment subsequent to 22.10.1984 but they have been shifted to the status of daily wager which is disadvantageous to the employee and advantageous of the State. Counsel for the petitioners has placed reliance on the judgment reported in 2005(4) 505 ( Triveni Mahto and anothers Vs. The State of Bihar and Others), wherein under similar circumstances noticing that the work was perennial in nature their appointments could not have been interfered with. The judgment passed in this case was challenged in LPA No. 1242 of 2001 by the State but the same was dismissed by the Division Bench by order dated 27.2.2002. Counsel for the petitioners have also placed reliance on a decision reported in 2010 (3) PLJR 459 (Ram Tapeshwar Sah and others vs. the State of Bihar), the facts of that case is identical to the facts of 9 the present case. The Division Bench considering the Supreme Court’s judgment directed to form a committee for regularization of all eligible persons giving age relaxation etc. Counsel for the petitioners has also produced the order of the Apex Court passed in Civil Appeal No. 3486 of 2006 ( Dinbandhu Pandey Vs. the State of Bihar & ors), whereby in the similar circumstances in respect of employee of the same very department the Supreme Court held that reverting the petitioners as daily wages worker is not proper and they would be treated as regularized with full pecuniary benefits. Considering all these facts and the earlier decisions of this Court, I find that the petitioners are entitled for similar relief as has been allowed by the Apex Court in Civil Appeal No. 3486 of 2006 (Dinbandhu Pandey Vs. State of Bihar & ors.). The order contained in Annexure-6 series reverting petitioners as daily wage workers are quashed. Respondents are directed to treat the petitioners as work charge employees with effect from the date they were absorbed in the work charge establishment. Petitioners will also be paid all pecuniary benefits for the period they were reverted back as daily wagers. 10 The respondents will also consider the case of the petitioners for treating as employees in permanent establishment. The direction of this Court must be completed within three months from the date of production/communication of this order. A. Kumar ( Mridula Mishra, J.)