IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7346 of 2009 Mahesh Prasad Singh, Son of Shri Ramdeo Singh, Resident of Village- Birhima, P.S. Baruraj, District Muzaffarpur ...... Petitioner VERSUS 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna 2. The Principal Secretary, Department of Agriculture, Government of Bihar, Patna 3. The Principal Secretary, Department of Personnel and Administrative Reforms Department, Government of Bihar, Patna 4. The Group of Secretaries, through its Chairman, Principal Secretary, Department of Finance, Old Secretariat, Patna 5. The Bihar State Agriculture Produce Marketing Board (Dissolved), through the Administrator, Pant Bhawan, Bailey Road, Patna (herein after referred to as “the Board) 6. The Administrator, Bihar State Agriculture Produce Marketing Board (dissolved), Pant Bhawan, Bailey Road, Patna (herein after referred to as “the Administrator”) 7. The Deputy Secretary, Agriculture Deptt. Bihar, Patna ...... Respondents WITH CWJC No.7365 of 2009 1. Dinesh Prasad Singh son of late Ram Narain Singh, resident of mohalla Prithvipur Chiraiyatand, Lane no.1, P.S. Kankarbagh, Distt. Patna 2. Amrendra Kumar son of late Ram Sarekh Singh, resident of mohalla New Area Sikandarpur, Akhara Ghat, Road P.S. Muzafffapur Sadar Distt. Muzaffarpur ..... Petitioners VERSUS 1. The State of Bihar, through the Secretary Personnel and Administrative Reforms, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna 2 4 9 .12.2009 3. The Agriculture Produce Commissioner, Bihar, Patna 4. The Principal Secretary, Agriculture Department, Government of Bihar, Patna 5. The Finance Commissioner, Government of Bihar, Patna 6. The Bihar State Agriculture Produce Marketing Board (Repealed) through its Administrator, Pant Bhawan, Bailey Road, Patna (herein after referred to as the “Board) 7. The Administrator, The Bihar State Agriculture Produce Marketing Board (Repealed), Pant Bhawan, Bailey Road, Patna 8. The Three Men Committee of the Government of Bihar, Patna ..... Respondents -------- For the Petitioners : M/s Abhay Kumar Singh, Basant Kr. Chaudhary, Sr. Advocates & Kripa Nand Jha, Advocate For the State : M/s Rajendra Prasad, AAG 1 &. S.Arshad Alam, SC IV For the Marketing Board : Mr B.K.Singh Chauhan, Advocate ------- These two writ petitions were heard together with some other writ petitions for the purpose of disposal at the stage of admission itself. On account of substantial variance in the facts as well as on issues of law, these two writ petitions which are almost identical, were separated and are being disposed of by a separate judgment. For the sake of convenience, most of the facts and documents will be referred from the records of CWJC NO.7346/09. 2. When these two writ petitions were filed on 3 1st July, 2009, there was no order passed terminating the service of either Mahesh Prasad Singh, a junior engineer (petitioner in CWJC No.7346/09) or Dinesh Prasad Singh and Amarendra Kumar, both Assistant Engineers (petitioners in the other writ petition) and at that stage they had challenged the decision of group of Secretaries dated 31.10.2007 whereby case of Mahesh Prasad Singh was separated and he was absorbed in government service on the ground that against him and some others, an inquiry had been initiated as to whether their initial appointment was irregular / ad hoc. A similar decision by the group of Secretaries was taken / reiterated in its meeting dated 11.1.2008 (Annexure -8 in CWJC No.7365/09) and the same was impugned in the other writ petition because cases of the two writ petitioners in this case were also made subject matter of inquiry like in the case of Mahesh Prasad Singh. At that stage the main grievance of the petitioners was that 1709 similarly situated employees of the Board had been absorbed in the service of the State Government but they had been left out due to arbitrary and malafide reasons. Subsequently, by order dated 17.7.2009 4 a learned single Judge after noticing another judgment in the case of some daily wage employees, felt the necessity of authoritative decision on the point involved and hence, these writ petitions along with six others were referred to Division Bench where they have been heard in detail for final disposal. 3. During the course of hearing the inquiry pending against the petitioners concluded leading to orders of termination from service passed on 9.10.2009, a copy whereof has been annexed as Annexure-26 to IA No.6477 of 2009 filed on behalf of Mahesh Prasad Singh. Similar orders of termination of same date have been challenged in the other writ petition also through IA No.6458 of 2009. 4. 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 5 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 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. 5. In order to appreciate the issues raised on behalf of the petitioners and the submissions of the parties, it will 6 be useful to notice in brief the relevant facts and the legal position. The State Legislature passed the Bihar Agriculture Produce Market (Repeal) Act, 2006 (the Repeal Act 2006) effective from 1.9.2006. As a result of Section 3 of the Repeal Act 2006, the Bihar Agriculture Produce Market Act, 1960 (hereinafter referred to as „the Act of 1960‟) and the Rules of 1975 framed thereunder stand repealed but certain decisions rendered earlier as well as disciplinary proceedings initiated or pending against the employees of the Board are saved. Under Section 4, the assets and liabilities of the Bihar Agriculture Produce Marketing Board or of the Marketing Committees or Bazar Samiti constituted under the Act of 1960, have vested in the State Government. The State Government by virtue of Section 5 has power, authority and jurisdiction to issue necessary directions or orders to secure the object of the Repeal Act 2006. Section 6 which is relevant for the purpose of these cases provides for absorption of officers and employees of Bihar Agriculture Marketing Board / Market Committee/ Bazar Samiti. 6. For the sake of convenience and easy reference, 7 Section 6 is extracted herein below. 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, 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 8 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.” 7. So far as facts are concerned, petitioner- Mahesh Prasad Singh has asserted that on 23.10.1980, 93 posts were created in the Engineering Cell of the Board and they were sanctioned by the Board on 29.11.1984. He was appointed initially on daily wages for three months on the vacant and sanctioned post of Junior Engineer, a class III post as he had the requisite qualification for appointment. His initial appointment on daily wages made on 23.7.1987 was extended and by order dated 19.4.1988 (Annexure-2) the extension was made till further orders. It has been pleaded that following absorption of 159 Junior Engineers in the Road Construction Department under the orders of State Cabinet dated 23.5.1988 (Annexure-3) the Board of Directors of the dissolved Board in a meeting held on 10.11.1989 under Agenda no.2 decided to absorb the services of the petitioner along with other daily wage employees of the Board on ad hoc basis for six months. 9 That decision was issued vide memo dated 21.11.1989 (Annexure-4). There is no dispute that Board of Directors was the highest body and it had power under Section 33 of the 1960 Act to appoint, promote or to dismiss the employees of the Board. Petitioner -Mahesh Prasad Singh has claimed that in the light of Annexure-4 office order no.928 dated 22.11.1989 was issued regularizing the service of the petitioner and some others in regular pay scale. The regularization was described as an ad hoc appointment for six months and was made dependent upon approval of Bureau of Public Enterprises. After such regularization, his service was extended till receipt of approval from Bureau of Public Enterprises vide order dated 20.8.1990 (Annexure-6). Thereafter, he was treated as a regular employee and sent on deputation to work as Junior Engineer of the Board with the Minister of Mines, Government of Bihar as per order dated 1.9.1997 (Annexure-7). 8. According to petitioner- Mahesh Prasad Singh, subsequently the Board appreciated the legal position that it was not required to work under the dictates of Bureau of 10 Public Enterprises. This was in view of a Division Bench judgment of this Court which was also upheld by the Apex Court as is mentioned in a letter of the then Managing Director of the Board dated 23.3.2000 (Annexure-8) whereby the Agriculture Produce Commissioner, Agriculture Department, Bihar was requested by the Managing Director of the Board to accept the position that the Board was, in the eye of law, free from control of the Bureau of Public Enterprises. Thus, on the basis of joint reading of facts mentioned in Annexure-5, 6 and 7 and in the light of law relating to power of Bureau of Public Enterprises mentioned by the Managing Director of the Board in Annexure-8, the stand of the petitioner- Mahesh Prasad Singh is that he was not only regularized in the service of the Board long back in the year 1989 on the basis of precedent set by the Government of Bihar and accepted by the Board of Directors of the Board but was also treated as a regular employee of the Board since then without any question. According to him, even letters issued by the Administrator of the dissolved Board during the pendency of the present dispute contained in 11 Anenxure-20, accept and admit his service to be valid and fit to be absorbed. 9. The factual profile of petitioners- Dinesh Prasad Singh and Amarendra Kumar (CWJC No.7365/09) is almost similar except that they were appointed earlier on 20.10.1984 and 2.5.1985 initially as Junior Engineer on daily wage basis after notice board advertisement, by the competent authority. Their case is that they were absorbed on vacant and sanctioned posts of Assistant Engineer under orders of the Managing Director of the Board dated 22.11.1989 for a period of six months. The Board of Directors decided to extend their service until further orders or till the approval of the Bureau of Public Enterprises and accordingly, office order dated 4.8.1990 (Annexure – 2) was issued. They have also relied upon stand of the Managing Director of the Board in his letter dated 23.3.2000 that the Board was not required to seek approval of the Bureau of Public Enterprises or of the State Government in absence of any provision under the Act of 1960 vesting such power in the State Government. The case of these petitioners is similar that they have been 12 appointed against vacant and sanctioned posts by the competent authority and they have the requisite qualification. 10. It is not in dispute that in exercise of power under Section 6 of the Repeal Act 2006, the Government of Bihar approved the scheme prepared by the group of Secretaries and accordingly a resolution was issued by the Agriculture Department, Government of Bihar vide memo no.1108 dated 15.3.2007. Petitioners have raised serious objection to paragraph 3.1 of the said resolution contained in Annexure-12. It reads thus : “3.1 ftu dfeZ;ksa dh fu;qfDr voS/k vFkok vfu;fer rjhds ls dh xbZ gS] mUgsa fcuk fdlh {kfriwfrZ Hkqxrku ds rqjUr lsokeqDr dj fn;k tk;sxkA fcuk fjfDr gksrs gq, dh x;h fu;qfDr] fcuk fofgr vgrkZ ds gksrs gq, dh x;h fu;qfDr vFkok fcuk l{ke izkf/kdkj ds vuqeksnu ds dh x;h fu;qfDr vcS/k@vfu;fer fu;qfDr ekuh tk;xhAÞ There is no ambiguity in the meaning of paragraph 3.1. It provides that those employees who were appointed illegally or irregularly shall be relieved from service forthwith without any compensation. Appointments made without vacancy, without requisite qualification or without 13 approval of the competent authority shall be treated as illegal/ irregular. 11. On behalf of the petitioners the arguments advanced are thus : The power being exercised by the group of Secretaries or the State Government against the petitioners must flow from the Repeal Act 2006, particularly Section 6 but that Section confines their power only to prepare detailed scheme of absorption and various kinds of retirement and to lay down other service conditions of concerned officers and employees. There is no power vested by the Repeal Act 2006 to hold any inquiry into the past events for screening and classifying officers and employees of the dissolved Board with a view to categorize them into legally appointed and illegally/ irregularly appointed employees. 12. The reply on behalf of the respondents is vague and instead of showing such power under the provisions of the Repeal Act 2006, it was asserted that power to prepare scheme of absorption will have within itself power to prepare a scheme for non-absorption also if on inquiry it is found that in respect of process of 14 appointment in the Board, its officers and employees do not stand on same footing and if appointment of some is found to be illegal. 13. In our view, the argument advanced on behalf of the petitioners has merit. A plain reading of the provisions of the Repeal Act 2006 makes it clear that unlike several Acts for take over of schools or colleges by the State with provisions for holding of inquiry to find out validly appointed employees of the taken over institutions, and thereafter for determining their service conditions, in the Repeal Act 2006 the group of Secretaries or the State Government has not been given such power. Under Section 6 of the Repeal Act 2006, the officers and employees of the Board, as a whole, have been allowed to continue in employment on the same salary and allowances as payable on the date of repeal of the Act as if the Act had not been repealed till the State Government takes a final decision in respect of scheme prepared by group of Secretaries. An employee of the Board who was on daily wages, will continue only on daily wages and, therefore, may be disengaged by not taking work on 15 which he will be disentitled for any salary and allowance by virtue of his previous status. But for any class of officers and employees of the Board, 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 whether the appointment process adopted by the Board was lawful or not. Those who were in admitted employment for any number of years and have been treated to be regular employees of the Board cannot be bifurcated into two categories- legally appointed and the illegally or irregularly appointed. In fact, there have been judgments in the past rendered by this Court that once, under a policy decision employees have been regularized, they cannot be removed from service on the ground of earlier irregularity in appointment. No doubt, the law was subsequently reconsidered and made very strict against illegally appointed employees as per judgment of the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (3), 2006 (4) SCC 1. However, in that judgment also in paragraph 53 while directing for 16 taking up cases of more than 10 years old employees appointed only irregularly and not illegally for regularization, the Court clarified thus “we also clarify that regularization, if any, already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement ....”. 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 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. In fact, case of another employee of the Board, Nandu Singh involved similar question and has 17 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 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. 14. Since arguments were advanced at length on behalf of parties whether the appointment / regularization of the petitioners in service of the Board could be treated to be illegal or irregular in the light of provisions in clause 3.1 of the approved scheme, we would like to express our views on that issue also. Even if it was to be held that respondents have the power as claimed by them in paragraph 3.1 of the approved scheme, the said paragraph clearly defines illegal/ irregular appointments to be only such appointment which was either made without 18 availability of any post or without the approval of the competent authority or in absence of the appointee having the requisite qualification. Although in the termination orders the respondents have alleged that the regularization of petitioners‟ services was against rules, they have failed to point out any rules/ regulations governing regularization which appear to have been done by following precedent set by the State Government in respect of its daily wage employees. However, the termination orders take note of the three requirements of clause 3.5 of the scheme and in order to show compliance and conformity it has been alleged that the appointment was bad because it was in disregard of requisite qualification and was without the approval of the competent authority. There is no discussion as to how the two conditions were actually attracted. Even during arguments nothing was shown and no attempt was made to suggest that petitioners did not have requisite qualification for the post on which their services were regularized by the Board. There is categorical assertion by the petitioners supported by orders contained in various annexures to show that their 19 regularization was by the approval of the highest authority of the Board i.e. the Board of Directors. 15. No doubt, there was a condition mentioned that the regularization would continue till it was approved by the Bureau of Public Enterprises, but from judgments mentioned in Annexure-8 as well as from the letter of the Managing Director of the Board dated 23.2.2000 as contained in that annexure, it is clear that the Board was a statutory authority and under that statute there was no provision empowering the State Government or the Bureau of Public Enterprises created by it to give any direction to the Board in the matters of appointment or service condition of its employees. Hence, even if paragraph 3.1 of the scheme would have been valid and even if the respondents had necessary power to scrutinize the appointment process of employees and officers of the Board, the three conditions laid down in that clause are not attracted in the case of the petitioners so as to render their appointments illegal or irregular in terms of clause 3.1 of the scheme. 16. In our view, the other issues raised or submissions 20 advanced by the parties in this case do not need any consideration or determination in view of discussions made above and findings indicated. 17. As a result of aforesaid discussions and findings, it has to be held that respondents have wrongly treated petitioners as a different class of employees of the Board for the purpose of denying them absorption / adjustment allowed to other employees of the Board in terms of the approved scheme. It is also found that respondents have wrongly issued orders terminating the services of the petitioners and those termination orders are illegal, arbitrary and fit to be quashed. The termination orders are accordingly quashed. The writ petitions are allowed and respondents are directed to treat the case of the petitioners on same footing as other officers and employees who have been absorbed against suitable position, commensurate to their status and other relevant factors governing their service as employees and officers of the dissolved Board. They shall be reinstated in service forthwith and shall be entitled to receive all