IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6183 of 2008 SHEO KUMAR SHUKLA Versus W i t h CWJC No.14576 of 2007 AWADHESH KUMAR W i t h CWJC No.17195 of 2008 HARI KUMAR PATEL W i t h CWJC No.767 of 2008 BISHWA RANJAN W i t h CWJC No.6163 of 2008 RAMDEO RAI W i t h CWJC No.6275 of 2008 AWADHESH MAHTO W i t h CWJC No.3914 of 2008 PRADIP SAH W i t h CWJC No.15897 of 2008 1. RAM UDAGAR PASWAN 2. KANHAIYA SINGH W i t h CWJC No.11550 of 2007 1. KESHRI NANDAN DWIVEDI 2. Girish Kumar Singh 3. Ram Niranjan Singh, 4. Nawal Kishore Chaudhary 5. Rakesh Kumar Sharma 6. Bishwanath Prasad W i t h CWJC No.4451 of 2008 1. BINAY PRASAD SINGH 2. Pramod Kumar I 3. Kapildeo Prasad Singh 4. Devendra Lal 5. Ram Prasad Mahto 6. Radha Krishna Ram W i t h CWJC No.4452 of 2008 1. BINDESHWAR RAI 2. Nand Kishore Thakur 3. Anil Kumar Singh 4. Devendra Prasad Thakur 5. Pramod Kumar W i t h CWJC No.4453 of 2008 1. BHUNESHWAR PRASAD THAKUR 2. Dharmendra Kumar Singh 3. Shatrughan Pandit 4. Bijay Kumar Srivastava 5. Binod Kumar 6. Kapileshwar Rai Versus 1. THE STATE OF BIHAR, through the Commissioner-cum- Secretary, Public Health Engineering Department, Government of Bihar, Patna. 2 2. Engineer-in-Chief-cum-Special Secretary, Public Health Engineering Department, Government of Bihar, Patna. 3. Chief Engineer, Public Health Engineering Department, Government of Bihar, Patna. 4. Superintending Engineer, Public Health Engineering Mechanical Circle, Muzaffarpur. 5. Executive Engineer, Public Health Engineering Mechanical Division, Muzaffarpur. For the Petitioners: 1. Mr. Banwari Sharma. 2. Mr. Basant Kr. Choudhary. 3. Mr. V.K. Singh, Adv. 4. Mr. Shiv Kumar. 5. Mr. Singh Rajesh Kumar, Adv. For the State : Mrs. Nivedita Nirvikar, G.P. 16. Mr.Anil Kumar Singh, J.C. to G.P. 16. Mr.AMARESH KUMAR SINHA, A.C. to G.P. 15. Mr.Pancha Nand Pandit, A.C. to AAG-IX. Mr. Amarendra Kumar, A.C. to AAG-4. ----------- 3/ 18/03/2009 Heard learned counsel for the petitioners and learned counsel for the State in this batch of writ applications. The issues involved are common. Counter affidavits have been filed in some of the writ applications and which are sufficient to enable this Court to appropriately consider the stand of the State in the matters. Learned counsel for the parties have no objection to the disposal of this batch of writ applications by the present common order. The facts are being culled out from the pleadings of the parties in C.W.J.C. No.6183/08 and which are sufficient for delimiting issues of law to be considered. The only differentiating factor is the separate dates of the original daily wage appointment of 3 the petitioners. The petitioner was appointed as a daily rated worker on 1.6.1981 as a Pump Khalasi under the Public Health Engineering Department. On 14.3.1988 he was absorbed in the regular work-charge establishment. His service-book and G.P.F. accounts were also opened with effect from 13.1.1988. Deductions from his salary for deposit in his G.P.F. account also commenced. On 17.6.1996 by a decision of the Divisional Establishment Committee he was brought into the regular establishment as a Pump Operator on a vacant post. The petitioner in this manner continued to work. A show cause notice was then issued to him on 13.4.2002 as to why he should not be reverted back to his status of a daily rated worker because his absorption in the work-charge establishment was itself contrary to the resolution of the Finance Department dated 23.10.1987. Thereafter followed an order dated 22.8.2002 reverting him to the status of a daily wage employee. The petitioner questioned his reversion in C.W.J.C. No.7359/02 (heard with analogous cases) when this Court on 13.7.2006 noticing the controversy referred the matter for consideration by a committee of the State Government. Thereafter the petitioner was 4 again regularized/absorbed in the regular establishment on the post of Pump Operator by an order dated 6.12.2006. In pursuance of the same, deductions commenced from his salary towards his G.P.F. contribution from December, 2006 till January, 2008. On 1.2.2008 followed an order that the petitioners being fresh appointees after 1.9.2005 shall come within the purview of the Contributory Provident Fund Scheme and they have been required to open their accounts for that purpose leading to stoppage of their salary. On 31.8.2005, the State Government issued an order in pursuance of a decision of the central government. Clause-3 of this order of the State Government is relevant for the purposes of present controversy fixing a cut-off date of 1.9.2005. Learned counsel for the petitioners have urged that the petitioners are not fresh appointees after 1.9.2005. Tracing back their appointment as daily wagers followed by work-charge establishment and induction into the regular establishment since long years, it is submitted that the relationship between the State and the petitioners never came to be severed. The State has not found any error in their daily wage appointments. What has happened by the decision 5 dated 6.12.2006 is only a re-affirmation of the original status of the petitioners. Even if it be conceded that the petitioners were considered afresh, their re-induction was nothing but a re-appointment in terms of paragraph-3 of the circular dated 31.8.2005. Learned counsel for the State urged that the initial induction of the petitioners into the work-charge establishment in 1988 was contrary to the law. Notices to show cause were issued after consideration of the same and that the petitioners were covered by the policy decision being appointees before 1.8.1985 they were taken into the work-charge establishment on humanitarian grounds. Otherwise, the petitioners were fit to be ousted. Referring to an order dated 22.8.2002, it is submitted that an option was given to the persons like the petitioners that in the facts and circumstances an offer was being made to them that they could come back to the daily wage status. There was no compulsion on them to do so. They could have easily declined it and chosen a different new path for themselves. Once they accepted the offer to be inducted to the daily wage status, they loose all their previous benefits and stand as fresh appointees after 1.9.2005. Having accepted being relegated to the status of daily wage in that capacity they cannot now be permitted to assail the 6 same to assert that there is a continuance in their service. On facts what emerges is, that the petitioners have been in the service of the State Government for years since 1979 to 1981. They were inducted into the work-charge establishment as far back as the year- 1988. They continued to work in that capacity from 1988 for long years till 2002. They were treated as regular government servants for all effects and purposes. Their service books and G.P.F. accounts opened, deductions made from their salary for deposit in their G.P.F. account. If a citizen is expected to act with promptitude, the State is also expected to act with promptitude. A person who gets an employment in the Government builds up his whole life on basis of the terms of his employment, balances his life, makes his investments etc. If the State wishes to interfere, the State is expected to act promptly. It cannot be permitted to wake up at its own leisure. Declare a citizen to be an illegal entrant into the government arena and then in stead of throwing him out, urging compassion to bring him back into government service, imposing conditions that as the lord and master the Government was bestowing a grace on him and he had no jurisdiction to 7 question the grace. No material has been brought on record in the counter affidavit as to why it took long years from 1988 to 2002 to discover the alleged illegality when all along the petitioners were in service and the officers who scrutinized their records were also in the office discharging duties. The State itself has acknowledged that even if induction of the petitioners into the work-charge establishment and subsequently into the regular establishment was bad, nonetheless, they were still coming within the purview of another government policy being appointees prior to the cut-off date to continue in government service. The State cannot have it both ways. Either there is a severance of link between the employer and the employee or there is no severance of link. The State cannot be permitted to urge that there shall be a continuance of the link for certain purposes, but not for other purposes. When the committee constituted by the respondents considered the case of the petitioners, all that was done was to put back the petitioners in a situation where they stood earlier. The recital in the order dated 6.12.2006 that they were absorbed on newly created posts can at best amount to their reinstatement/re-induction in terms of Clause-3 of the 8 order dated 31.8.2005. The respondents were themselves under no misconception with regard to the applicability of Clause-3 thereof to the petitioners. This is more than evident from the fact that again from December, 2006 till January, 2008, their G.P.F. accounts continued and deductions continued to be made from their salary. What is sought to be urged by the order dated 1.2.2008 to subject them to the Contributory Provident Fund Scheme, was an issue already available to the respondents in December, 2006. This Court has no hesitation in arriving at the conclusion that the act of the respondents was not an unthoughtful act, but a well considered one in continuing with the G.P.F. accounts of the petitioners making deductions from their salary. In any view of the matter, the order dated 1.2.2008 only refers to the fact that the petitioners had been re-inducted on the fresh vacancies. The fact that the link between the petitioners and the respondent State commenced in 1988 or may be even earlier in 1979-1981 never came to be severed, has not been considered at all. This Court finds it difficult to hold that the petitioners are fresh appointees after 1.9.2005. The facts of the case have to be seen in its entirety. They 9 have not entered the portals of the Government after the cut-off date. They have been there since much earlier even when relegated from their superior posts their relationship with the Government was never severed. The Government then decided to re-induct them to the posts that they were earlier holding. The continuity clearly survives. This Court, therefore, holds that the petitioners are appointees prior to 1.9.2005 and are, therefore, covered by the G.P.F. scheme already in existence with regard to them. They are not required to open their accounts as covered by the Contributory Provident Fund Scheme. The State shall continue to make deductions from their G.P.F. accounts and credit the same to their benefit. The writ application stands allowed. At this stage, it was pointed out that some of the petitioners have not received salaries after re- induction. They shall be at liberty to file representations for that purpose which the respondents are required to consider and dispose of expeditiously, in accordance with law. KC ( Navin Sinha, J.)