IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8684 of 2006 JALANDHAR PRASAD YADAV Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner:- Mr. Shailendra Kumar Jha, Advocate For the State:- Mr. Satish Kr. Sinha, AC to SC I 10 16.03.2011 Heard counsel for the petitioner and the counsel appearing for the State. Prayer of the petitioner in this writ application is for a direction to the respondent to treat the petitioner in service since 1981 and for quashing letter No. 54 dated 20.10.1998 issued under signature of Junior Engineer, P.H.E. (Mechanical Section) Jamalpur Respondent no.5, whereby petitioner was terminated from his service. Further prayer of the petitioner is for allowing all consequential benefits for which a Government servant is entitled during the tenure of his service. Petitioner’s case is that he was initially appointed on Daily Wages in the Public Health Engineering (Mechanical Division) Department, Purnea in the year 1980. In the year 1983, he was shifted to work charge establishment. In the year 1997, a termination notice was issued to him by the respondent No.5 as he refused to pay illegal gratification. Since petitioner refused to oblige him, as 2 such by issuing letter No. 54 dated 20.10.1998 he was terminated from his service by respondent no.5. Petitioner filed one CWJC No. 12181 of 2001 for payment of his dues salary in which he also alleged that a forged termination letter dated 20.10.1998 had been issued against him by the Junior Enegineer, Respondent no.5, since, he refused to oblige him by paying Rs.25,000/- as illegal gratification. During the pendency of the writ application a direction was issued for conducting an enquiry with regard to the allegation made by the petitioner, giving proper notice to the petitioner who had made allegation and the Junior Engineer against whom the allegation was made. Proper enquiry was conducted and final outcome of this enquiry was that the allegation made by the petitioner regarding demand of Rs. 25,000/- by Junior Engineer for making payment of his entire salary dues was baseless. Petitioner could not prove such allegations. Petitioner thereafter has filed this application for a direction to the respondent to treat him in service since 1981 and for quashing of letter no. 54 dated 20.10.1998, whereby he has been terminated from service. Letter No. 54 dated 20.10.1998 has 3 been challenged by the petitioner on the ground that the Junior Engineer, PHE (Mechanical Section) Jamalpur was not authorized to issue any termination letter, it could have been issued only the Superintending Engineer, Respondent no.3. It has also been stated that this is the forged letter as no such letter is there in the Department. In the counter affidavit allegation made by the petitioner has been denied, stating that the termination letter no. 54 dated 20.10.1998 was just a communication made by the Junior Engineer to the petitioner. Termination order had been passed by the competent authority and on the direction of the Executive Engineer, the Junior Engineer had communicated the order of termination to the petitioner. Another ground for challenging the termination letter by the petitioner is that he started working on Daily wages in the year 1981. In the year 1983 he was shifted to work charge establishment, as such termination on the ground that his appointment is subsequent to the appointed date i.e. January, 1988 is incorrect. There was no ground for his termination. In reply to it, details of petitioner’s engagement as daily wages employee and dis- 4 engaged on different occasions has been given in the counter affidavit, in order to show that petitioner had been engaged and dis-engaged on many occasions in between 1983 to 1988, prior to issuance of final termination letter in the year 1998. So far petitioner’s claim that he was shifted to work charge establishment in the year 1983 is concerned, it has been stated that Annexure-1 shows that one Jalendra Prasad Yadav was shifted to work charge establishment. The order was not issued in favour of writ petitioner, namely, Jalendhar Prasad Yadav, who has filed this writ application. It has also been stated that in the year 1983, petitioner was engaged as daily wages and in between 1983 to 1988, trice he was dis- engaged. He was re-engaged in the year 1993 and continued up to 1998 when by letter no. 54 dated 20.10.1998 he was finally terminated. The plea taken by the respondents in the counter affidavit is that the service records of the petitioner indicate that he has not continuously worked since 1981 till 1998. There is no document in support of petitioner’s claim that he started working as daily wager in the year 1981. In the supplementary counter affidavit filed by the respondents, subsequent developments, which 5 took place has been brought on record. The developments took place on account of an order passed by Division Bench of High Court in CWJC No. 7359 of 2002, Ram Tapeshwar Sah and others vs. State of Bihar and Others, along with 164 analogous cases. A direction was issued by the High Court to constitute a Committee of three High Officials to consider cases of all such persons, who claimed to have workd on Daily Wages or work charge establishment continuously for a substantial longer period. Direction was that after giving them opportunity to place their respective claims, the issue of their regularization should be decided afresh, in the light of the Apex Court Judgment, in the case of Secretary, State of Karnataka Vs. Uma Devi and ors. The State of Bihar, Department of Personnel and Administrative Reforms took a policy decision regarding regularization of such employees against sanctioned vacant posts through resolution no 639 dated 16.3.2006. Three Men Committee presided over by the Secretary, PHED, Government of Bihar was constituted and the Committee took a resolution for regularization of such employees/work charge employees,, terminated earlier, against sanctioned 6 vacant posts. So far petitioner is concerned, he was also permanently absorbed under regular establishment against sanctioned vacant posts vide order No. 798 dated 26.10.2007 and Office order No. 169 dated 31.10.2007 was issued by respondent no.4 to the petitioner informing the decision taken by the Department. Petitioner despite such intimation, did not join his duty in the Mechanical Sub-Division, Munger, though, he was asked to join on the post of Pump Operator within a week vide letter no. 320 dated 7.5.2008. Counsel for the petitioner submits that intimation sent by the respondents have been received by the petitioner. Still, he has not joined, for the reason, that writ applications filed by him were pending before the High Court. In these writ applications, petitioners has has claimed continuity in service since, 1981. He was waiting for conclusion of the writ applications, with this expectation that if it is allowed, he will get benefit of continuity in service since 1981 and also be held entitled for all consequential benefits, for all these periods. Considering the pleadings of the parties and the documents which have been brought on record, I 7 find that the petitioner’s claim for continuity in service since 1981 is not supported by any of the documents, rather it is apparent that petitioner started working as Daily wages since 1983 but on different occasions he was dis-engaged and re-engaged. Lastly he was engaged in the year 1993, so the claim of the petitioner regarding continuous discharge of his duty since 1981 is not supported by any of the documents. That prayer cannot be allowed. So far termination letter no. 54 is concerned, that was challenged by the petitioner on the ground that due to malice, it had been issued by the respondent no.5 but this could not be proved by the petitioner in the enquiry held in the light of the order passed by this Court. Now, this ground is not available to the petitioner. So far the allegation regarding order of termination being without jurisdiction, in the counter affidavit, it has specifically been stated that competent authority had taken such decision of termination. The Executive Engineer was informed and directed to communicate it to the concerned Junior Engineer for it’s communication on the direction of the Executive Engineer, respondent no.5 Junior Engineer, simply communicated it to the 8 petitioner. Termination order actually had not been issued by the Junior Engineer. For all these reasons, I do not find any substance in the allegation made by the petitioner. Petitioner has already been regularized as per the policy decision of the State Government and the resolution taken by the three men Committee. He was intimated in the year 2008 to join on the post of Pump Operator, within the time stipulated in that order. Admittedly the time has expired and the petitioner did not join on this post. However considering the facts and circumstances of the case, respondents are directed to accept the joining of the petitioner on the post of Pump Operator, for which he was intimated vide letter no. 320 dated 7.5.2008 issued under the signature of respondent no.4. Petitioner is directed to join on the post within a period of four weeks from today. In case within this period, petitioner approaches the authorities for his joining, it must be accepted. However, if the period expires, it will be open to the respondents either to accept or not to accept the joining of the petitioner. Let the original record connected with the 9 case be returned to Mr. Satish Kumar Sinha, Assistant Counsel to Standing Counsel No.I. A. Kumar ( Mridula Mishra, J.)