IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7178 of 2010 1. RAM KRISHNA TANTI, S/O LATE RAJESHWAR TANTI, R/O VILLAGE-TUNIYAHI, P.O - PURIKH (PURUSHOTTAMPUR) P.S.- BIHRA, DISTRICT- SAHARSA. Versus 1. THE STATE OF BIHAR, THROUGH THE COMMISSIONER CUM SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 2. THE COMMISSIONER CUM SECRETARY, PUBLIC HEALTH AND ENGINEERING DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE ENGINEER IN CHIEF, PUBLIC HEALTH AND ENGINEERING DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE CHIEF ENGINEER, PUBLIC HEALTH AND ENGINEERING DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE SUPERINTENDING ENGINEER, PUBLIC HEALTH AND ENGINEERING DEPARTMENT, GOVT. OF BIHAR, PATNA. 6. THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, MUNGER. 7. THE SUB DIVISIONAL OFFICER, PUBLIC HEALTH DIVISION, KHARAGPUR, DISTRICT-MUNGER. 8. THE EXECUTIVE ENGINEER, PUBLIC HEALTH, RURAL WATER SUPPLY DIVISION, JAMUI. 9. THE SUB DIVISIONAL OFFICER, PUBLIC HEALTH DIVISION, KHARAGPUR, DISTRICT-MUNGER. ----------- For the Petitioner : Mrs.Shashi Priya Pathak, Adv. For the State : Mr.R.B.N.Singh, AC to SC-XIII. ------------- 2 02.02.2011 It is not disputed that the petitioner’s services stands absorbed in regular service, vide Annexure-6 dated 06.12.2006, along with many other persons, in class-IV. The grievance of the petitioner is that this absorption is with effect from 28.11.2006, and services rendered by the petitioner with the respondents under work 2 charge establishment have been completely wiped out. The prayer for a direction to the respondents to count his services, rendered with the respondents under the work charge establishment, for the purposes of seniority, pay scale etc. As per the case of the petitioner, he was appointed under a work charge establishment under the Department by an order dated 28.03.1988, as contained in Annexure-1. Petitioner joined his services and was placed at the basic stage of regular pay scale of the post and continued as such. Thereafter, petitioner filed representations from time to time for his regularization and promotion. However, in 2002, vide Annexure-5, a notice was issued to the petitioner that since his appointment under the work charge establishment was found non est he could continued on daily wages only with the respondents for which he was asked to give his consent. As disclosed in the counter affidavit similar matters came up before this Court in CWJC No.7359 of 2002 and other cases. The matters were heard, and in the light of the resolution no.639 dated 16.03.2006, the writ 3 applications were disposed of by a Division Bench by order reported in 2010 (3) PLJR 459. The Division Bench considered the submissions on behalf of some of the petitioners that since they were appointed in the work charge establishment and as there was no illegality in such appointment, they could not be reverted to the status of a daily wager. The respondents had contended that they have only issued notices to such appointees under work charge establishment and no final order had been issued. The Division Bench thereafter noticed the judgment of the Constitution Bench in the case of Uma Devi (3) Vs. Secretary, State of Karnataka, reported in 2006 (2) PLJR (SC) 363, and directed the respondents to constitute a three Man Committee of high officials and consider the facts of all such employees in terms of paragraph 44 of the said Constitution Bench judgment and take a decision in their respect. In the counter affidavit, it is accepted that, in terms of the orders of the Division Bench, Committee was constituted and services of large number of employees were considered and were finally absorbed by different orders, one of which is admittedly 4 Annexure-6, which was slightly modified by Annexure-7 in respect of the names and places of postings etc. To deny the benefits of past services, the respondents rely upon Clause 3(1) and Clause 5 of paragraph 2 of the said letter no.639 dated 16.3.2006 issued by the Personnel Administrative Reforms Department of the Government, a copy whereof is Annexure-A with the counter affidavit. This Clause mentions that the daily wage employees shall not be entitled for counting of their past services upon they being absorbed in regular service in terms of the said letter. Learned counsel for the petitioner submits that since the petitioner was initially appointed under work charge establishment the circular of the Government, no. 1344 dated 4.2.1949, shall apply in his case, according to which, on completion of 12 months of regular service in work charge establishment, an employee gets the status of a temporary employee under the Government. She relies upon the judgment of a learned Single Judge in the case of Tulsi Prasad Singh Vs. State of Bihar and Others, reported in 2001 (3) PLJR 15, to contend that, in view 5 of the notification of the Government dated 15.4.1950, the said letter of the Department dated 4.2.1949 has a force of Rule in terms of proviso to Article 309 of the Constitution. Therefore, no executive instructions of the Government can supersede the provisions of the said letter dated 4.2.1949. She submits that, since, in terms of the said letter, the petitioner had by operation of law become temporary employee of the respondents and had continued as such resulting in his absorption/regularization, he shall be entitled to all the benefits on the basis of his past services with the respondents. She also submits that the letter of the Department of 2002, as contained in Annexure-5, was only a notice, and identical notices issued to large number of employees were under consideration before the Division Bench and considering the entire aspects of the matter, the Division Bench had disposed of the matter directing the respondents to consider the cases of the petitioners in the light of paragraph 44 of the Constitution Bench judgment. Now that the services of the petitioner stands regularized in the light of past services rendered by him with the 6 respondents, petitioner is also entitled for consideration of his past services for the purposes of seniority, pay scale etc. Earlier, repeatedly time was granted to the learned counsel for the respondents to produce any valid Government decision superseding the said letter no. 1344 dated 4.2.1949. However, learned counsel for the respondents has failed to produce any valid Government decision which could nullify the effect of the said letter dated 4.2.1949. Therefore, this Court has proceeded and considered the matter on the basis of materials available on record and produce by learned counsel for the petitioner during the course of hearing. In the light of the said judgment of a learned Single Judge in Tulsi Prasad Singh’s case it cannot be disputed that the effect of the said letter dated 4.2.1949 is of a Rule framed under the proviso to Article 309 of the Constitution of India. Therefore, clearly the same has to prevail upon any executive instructions issued by any Department. Hence, in terms of the said letter, petitioner, after one year of service in the work charge establishment, has to be 7 treated as temporary employee of the respondents under a regular establishment. Learned counsel for the petitioner has also rightly submitted that Annexure-5 was merely a notice and not a final order of reversion of the petitioner as daily wager. One more aspect of the matter needs to be clarified. In terms of paragraph 44 of the Constitution Bench, respondents had the liberty to take up the matter of daily wage employees for regularization, if only they found their appointments as irregular, and not illegal. Clear distinction was made by the Constitution Bench in respect of the scope of consideration of the cases of the incumbents by their employer. Hence, if the respondents acted under the said paragraph 44 of the Constitution Bench Judgment and decided to regularize the services of the petitioner and others, definitely that will amount to an admission on their part that the services of the petitioner and others were only irregular not illegal. Now that the services of the petitioner and others have been regularized/absorbed they are definitely entitled for counting of their past services for seniority and pay scale etc., from the 8 date of their regularization/absorption, notwithstanding the said clauses of the said letter dated 16.3.2006 of the Personnel Administrative Reforms Department, as contained in Annexure-A, which clearly deals with only the daily wages appointees and not a work charge establishment employee. In the circumstances, the writ application is allowed. The respondents are directed to consider the past services of the petitioner rendered in the work charge establishment for the purposes of seniority and pay scale etc. The consequential orders in respect of benefits flowing from this order shall be issued within two months from the date of receipt/production of a copy of this order. Arvind/ ( J. N. Singh, J.)