IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7340 of 2010 1. Nagendra Prasad S/O Sri Ghana Singh R/O Vill +P.O.Raghopur, P.S.Jurawanpur, Distt-Vaishali 2. Saiyad Shah Hasnain Ali Hassami S/O Late Saiyad Shah Hasaan Alia Hassani R/O Moh +P.O.Khajekla Ghat, Patna City, Distt-Patna Versus 1. The State Of Bihar Through The Commissioner -Cum-Secretary, Public Health Engineering Department Bisheshwariaya Bhawan, Bailey Road, Patna 2. The Engineer-In-Chief Cum -Special Secretary Public Health Engineering Department Bisheswariaya Bhawan, Bailey Road, Patna 3. The Chief Engineer (Mechanical), Public Health Engineering Department Bisheshwariaya Bhawan, Bailey Road, Patna 4. The Chief Engineer (Civil) Public Health Engineering Department Bisheshwariaya Bhawan, Bailey Road, Patna 5. The Superintending Engineer , Public Health Engineering Circle Patna 6. The Executive Engineer , P.H.E. Division Hilsa , Distt-Nalanda ----------- For the Petitioners: - Mr. Lalan Kumar Singh, Adv. For the State: - Mr. Shambhu Nath, Adv. ------------ 3. 26.09.2011 Heard learned counsel for the petitioners and the State. The petitioners were appointed on 22.8.1987 and 22.9.1987 respectively against the vacant post of Work Circar and Pipe Line Inspector. Learned counsel for the petitioners submits that both are Class-III posts. The petitioners continued to work in that capacity till they were terminated on 13.4.2002. They came to this Court in C.W.J.C. No. 7363 of 2002 assailing their termination. It came to be disposed off with a batch of analogous writ applications led by C.W.J.C. No. 7359 of 2002 directing the respondents to constitute 2 a committee and examine their claims in light of their assertions that there was no illegality in the appointment including the aspect that they had worked for more than 10 years in light of the directions contained in Secretary, State of Karnataka & Others Versus Uma Devi (3), 2006 (4) SCC 1. The respondents on 26.10.2007 have passed fresh orders appointing them on newly created posts of Khalasi and Keyman-cum- Chowkidar which are Grade-IV posts. The relief sought is twin in nature. (a) to appoint them against Class-III posts (b) to treat them as appointees prior to 1.9.2005 when the new C.P.F. scheme came into being by counting the earlier period of service rendered making them amenable to the old G.P.F. scheme. Counsel for the State submitted that the petitioners had been illegally appointed. The fact that there is no finding on the legality of the appointment of the petitioners is not relevant. It is apparent from the order dated 26.10.2007 that they have been appointed afresh on newly created sanctioned posts. If the posts were not available earlier, the question of absorbing them on any Class- III post or treating them as fresh appointees does not 3 arise. The thrust of the submission was on question of availability of vacancies. The petitioners have not placed the termination order dated 13.4.2002 on record. The respondents have done no better by not placing it on record also much less disclosing in their counter affidavit how the appointment made in 1987 was contrary to the law. The appointment letter of the petitioners in no uncertain terms states that they were appointed against sanctioned vacant post of Work Circar and a Pipe Line Inspector. Therefore on the first impression they cannot be classified as illegal appointees outright but shall have a limited claim based on the fact of their appointment against a vacant sanctioned post. The capacity in which they came to be appointed is not considered relevant at this stage. The petitioners were terminated on 13.4.2002. The reasons are not available before the Court. They questioned it in C.W.J.C. No. 7363 of 2002. A Division Bench then directed the constitution of a committee to decide their claims after giving them an opportunity to place their case. Learned counsel for the petitioner has relied upon an order of this Court in a similar controversy passed in C.W.J.C. No. 4 14952 of 2009. The Court observed that no finding was returned with regard to the validity or invalidity of the termination by the committee. The question of absorption, the post, the relevant date, has all necessarily to be considered from the date of termination. Different consequences would ensue depending upon whether the termination was sustainable or not. The termination order of the petitioners stood merged with the reference made by the Court to the three man committee. There had to be a finding by the committee affirming the termination dated 13.4.2002 and then inducting them into the fresh establishment. There cannot be a simultaneous situation of no illegality in the appointment and still denying them the benefit of the past services treating them as fresh appointees. Even otherwise counsel for the petitioners has rightly relied upon another order of this Court in C.W.J.C. No. 5803 of 2010 disposing a similar claim with directions to the respondents to consider the claims of a work charged employee in light of the dismissal of S.L.P. (Civil) No. 18380 of 2008 by the Supreme Court confirming the Division Bench order in C.W.J.C. No. 16060 of 2004 with regard to the claims and status of a work charged employee and 5 his induction into the regular establishment. The determination by the respondents in that background shall substantively determine his claim for absorption against a Class-III post and which shall consequently and necessarily affect his claim to be considered as an appointee prior to 1.9.2005 reckoning the period of service spent in the work charged establishment automatically for purposes of pensionable service also. Let such consideration be done and a fresh reasoned and speaking order disclosing full application of mind to all aspects including that discussed in the present order be passed so that judicial review, should the need arise is facilitated. Let such appropriate decision be taken by the respondent no. 1 within a maximum period of four months from the date of receipt/production of a copy of this order. It shall be open for the petitioners to bring to the attention of the respondent no. 1 as the other and further orders of this Court or the Supreme Court as they may be advised in support of his claims. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)