IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4797 of 2011 1. BIRENDRA KUMAR SINGH son of Sri Jagdish Singh, resident of New Mainpura Kharanja Road, Danapur, District- Patna. 2. Sudhir Kumar Singh, son of Sri Bindeswar Singh, resident of Royal Military Public School, New Mainpura, Pragati Nagar, Danapur Cantt., District- Patna-801503. 3. Prithwiraj Pandey, son of Sri Narendra Pandey, resident of village- S.K. Puran, Lane No.7, RPS More, Danapur, District- Patna- 801503. 4. Govind Tiwary son of Sri Ram Krishna Tiwary, resident of Bunglow No.3, Circular Road, Anand Bazar, Danapur Cantt. District-Patna-801503. 5. Abhay Kumar son of late Sri Phagu Lal Yadav, resident of village- Masumganj, P.O. & P.S. Chapra, District- Chapra (Saran). 6. Yogendra Upadhyay son of Sri Sidh Nath Upadhyay, resident of village- Barka Dhakaich, P.O.Barka Dhakaich, District- Buxar- 802133. 7. Din Bandhu Prasad son of Shiv Lagan Mahto, resident of village- Kayam Nagar, P.O. Kayam Nagar, District-Bhojpur-802314. 8. Lakshman Yadav, son of Sri Baleshwar Yadav, resident of village- New Mubarakpur, P.O. Danapur, District- Patna-801503. 9. Braj Bhushan Prasad Singh, son of late Dewanand Singh, resident of village-Nagatola, Goria Asthan, P.O. Bayapur, District- Patna- 801502. 10. Ajay Kumar Singh, son of late Sarjug Prasad Singh, resident of village Balaji Nagar, P.O. Danapur Cantt. District- Patna-801503. 11. Arjun Kumar Singh, son of late Jay Narayan Singh, resident of C/o Ajit Kumar, village-Kaliket Nagar, Near D.P.S. Bailey Road, P.O. Danapur, District-Patna 801503. 12. Kameshwar Dubey son of late Lal Mohar Dubey, resident of village and P.O.Barka Dhakaich, District- Buxar-802133. 13. Om Prakash Singh son of late Deo Nath Singh, resident of village Pakriya Bar, P.O.Chandawa, District-Bhojpur. 14. Surendra Prasad Yadav son of late Rameshwar Rai, resident of village & P.O.Nayagaon, District- Chapra (Saran). 15. Sheo Narayan Singh, son of Bhokali Singh, resident of villagge New A.G. Colony, Near Blue Bells School, Khagaul Road, P.O. Danapur, District-Patna-801503. 16. Upendra Prasad Yadav, son of late Basudeo Prasad Yadav, resident of village Panapur, P.O.Kanahauli, District-Vaishali-844122. 17. Munna Prasad, son of Deo Lal, resident of village Kothawan, P.O.Khagaul, District- Patna-801105 - 2 - 18. Mahendra Singh, son of Rameshwar Singh, resident of C/o late Dina Nath Singh, village Tara Chak, P.O.Danapur Cantt., District- Patna-801503. 19. Md. Irsad Alam Mallik, son of late Bari Mallik, resident of village Mainpura, Rajapul, P.O.-GPO,District-Patna-800001. 20. Shiv Ratan Prasad, son of late Mahesh Mahto, resident of village- Tara Chak, P.O. Danapur Cantt.,District- Patna-801503. 21. Krishna Mohan Singh, son of late Madhuvan Singh, resident of village New Manpura (Saguna) P.O. Danapur, District- Patna. 22. Bimleshwar Kumar, son of Ganauri Sharma, resident of village- Banauli, P.O.Banauli, District- Patna. 23. Vijay Singh son of Tipan Prasad Singh, resident of village Aklu Chak, P.O.Sahpur, District- Patna-801503. 24. Sanjay Kumar son of Sakal Deo Prasad Verma, resident of village Korawan, P.O. Korawan, District-Patna. 25. Ram Nath Singh son of Sita Ram Singh, resident of village North Nawada, P.O.Nawada, District- Bhojpur. 26. Arun Kumar Sharma, son of late Raj Narayan Thakur, resident of village Indrapuri Colony, Road No.2, P.O. Ramana, District- Muzaffarpur. 27. Lalji Prasad, son of late Bhagwan Ram, resident of village Kesheriya, Purani Bazar, P.O. Kesheriya, District-East Champaran- 848504. 28. Prahalad Dubey son of late Suresh Dubey, resident of village and P.O.Barka Dhakaich, District-Buxar-802133. 29. Ram Swarth Choudhary son of late Ram Lagan Choudhary, resident of village and P.O.Jorpura, District-Samastipur-848504. 30. Kaulesh Kumar, son of late Jamuna Singh, resident of village Moriyawan, P.O.Hazrat (Sai), Dhanrua, District- Patna-804451. 31. Anil Kumar, son of Tulshi Mahto, resident of village Bhirha, P.O.Amarpur, District- Lakhisarai. 32. Ram Naresh Singh, son of late Jagdeo Singh, resident of village Manopur, P.O.Manopur, District- Chapra. 33. Jayant Prakash son of late Jagdish Chaudhary, resident of village Thana Road, Shyam Bag, P.O. Sultanganj, District- Bhagalpur- 813212. 34. Mahendra Singh, son of Sri Radha Kishan Singh, resident of village Kolhai, P.O. Akorigola, District- Rohtas. 35. Prahalad Singh, son of Sri Bachu Singh, resident of village Hiraman Bigha, P.O.Sarta, District- Jehanabad. 36. Siya Sharan Sahu, son of late Guru Charan Sahu, resident of Mohalla-Arya Niketan, Near Guaria Math, Gardanibagh, P.O.GPO,District- Patna. - 3 - 37. Shrawan Kumar Lal Karn, son of late Nokhe Lal, resident of Satguru Electrical Jandaha Road, Paswan Chowk, Hajipur, District- Vaishali. 38. Mukti Nath Mishra, son of Sri Diwakar Mishra, resident of Vpo, Sughrain, District- Darbhanga. 39. Mohan Jha, son of late Rama Kant Jha, resident of Gaya Sagar, South of Marwari College, Lal Bagh, District-Darbhanga. 40. Dinesh Singh, son of Sri Paras Singh, resident of Lekha Nagar (Behind Devi), Khagaul Road, P.O.Khagaul, District-Patna- 801105. 41. Ravindra Prasad Roy, son of Sri Ram Chandra Roy, resident of Milkipur, P.O.Kamla Gopalpur, P.S. Bihta, District- Patna. 42. Shiv Narayan Singh, son of late Bhujangi Singh, resident of Shreepur, P.O. Maniamor, P.S.Naugachhia, District- Bhagalpur- 853204. 43. Lalan Prasad Singh, son of late Amarlal Singh, resident of village- Huylasi Tola, P.O. Hulasi Tola, District-Patna. 44. Vijay Prasad Singh, son of late Garbhu Prasad Singh, resident of village Ambedkar Path, near Tenpulva Chandpur Bela, P.O.GPO, District- Patna-800001. 45. Rabindra Sharma, son of late Bibhuti Prasad Singh, resident of Road No.25, Rajiv Nagar, P.O.Keshri Nagar, District- Patna- 800024. 46. Sidheshwar Prasad Sharma, son of late Gaya Singh, resident of village Rampur, P.O. Sherpur, District-Patna. 47. Vishnu Kindo son of late Sunsa Kindo, resident of village Braj Kumba Toli, P.O. Hewel, District-Ranchi. 48. Madhaw Tiwary son of late Nityanand Tiwary, resident of village Amnour Agnawan, P.O.Amnour, District-Chapra. 49. Sheo Narayan Yadav, son of late Harihar Rai, resident of village Amnabed, P.O. Katesar Palia, District-Patna. 50. Ram Singhashan Tiwari son of late Ranadhar Tiwari, resident of Mohalla-Defence Colony, Sahpur, District-Patna. 51. Awadhesh Kumar son of Ram Balak Ram, resident of village Dhanauti, P.O.Masaurhi, District- Patna.800052. 52. Umeshwar Sao son of late Prasadi Sao, resident of village Ghugari Tar, near Masjid, P.O. Chand Choura Civil Lines, District-Gaya. 53. Ramakant Sharma son of late Brijnandan Sinha, resident of village Bhawanpur, P.O. Ark Dhibaria, District-Patna. 54. Satish Kumar Verma son of late Basudeo Prasad Verma, resident of village Maranchi, P.O. Parayea, District-Gaya. 55. Bali Prasad Singh, son of late Bindeshwar Singh, resident of village Darbhanga, P.O.Teldiha,District- Aurangabad. 56. Syed Md. Lattipullah son of Syed Abub Md. Ibrahim, resident of village-Aliganj, P.O.Karimganj, District-Gaya. - 4 - 57. Balendra Prasad Sharma, son of Anirudh Sharma, resident of village Semira Jamsad, P.O.Bhodwa Bazar, District-Aurangabad. 58. Bindeshwari Singh, son of late Sipahi Singh, resident of village Shawajpur Dhewai, P.O. Ingure, District-Arwal. 59. Rajeev Nayan son of late B.N. Singh, resident of village Ghostana, P.O.Ghostana, District- Nawadah. 60. Sudhir Prasad Singh, son of late Arjun Singh, resident of village Chandanpur, P.O.Muktapur, District-Muzaffarpur. 61. Amrendra Kumar Rai, son of Sri Raj Narayan Rai, resident of village- Makharan via Manhalpur, P.O.Makharan, District-Kaimur. 62. Bharat Singh son of Keshwar Singh, resident of village Puraini Kola, P.O. Hitwarajpur, District- Buxar. 63. Chandeshwar Das, son of late Ram Dyal Das, resident of village- Kosihan, P.O.Khangesh, District- Bhojpur. 64. Ranjeet Singh, son of late Bhola Nath Singh, resident of village Najana, P.O.Mahua, District- Vaishali. 65. Ram Kishore Singh, son of late Ram Sharan Singh, resident of village-Makarpur, P.O. Tarar, District- Bhagalpur. 66. Niranjan Prasad Singh, son of Shiv Nandan Singh, resident of village Saligram Sadan, near Geeta Press, Upar Tola Jogsar, District- Bhagalpur. 67. Bijay Kumar Yadav, son of Bhuwaneshwar Yadav, resident of village Kamkhoria, P.O.Kamkhoria, District- Bhagalpur. 68. Shiv Dayal Mahto, son of Bhuwaneshwar Prasad Mahto, resident of village Rajgaon, P.O.Barwaria, District- Bhagalpur. 69. Harendra Kumar Tiwari, son of late yogendra Tiwari resident of village-Sheopur, P.O. Sheopur, District- Rohtash. 70. Sanjay Kumar son of Shivjit pandey, resident of village Makundpur, P.O.Makundpur, District- Bhojpur. 71. Birendra Kumar Singh, son of Prem Lal Singh, resident of village- Katharain, P.O.Manikpur, District- Buxar. 72. Jagnnath Singh son of Trilok Nath Singh, resident of village Bhikhanpura, Jagatpuri Colony, District- Muzaffarpur. 73. Amar Nath Jha, son of late Auodhya Nath Jha, resident of village Lenin Chowk, Majhaulia Road, P.O. & District-Muzaffarpur. 74. Sudhir Kumar son of Sri Anandi Thakur, resident of village Lahladpur Patahi, P.O. Patahi, District- Muzaffarpur. 75. Hirdyanand Singh, son of late Raj Grishi Singh, resident of village Barauna, P.O.Ossaee, District- Bhojpur. 76. Anand Bihari Tiwari, son of late Baikunth Tiwari, resident of village Bariswan, P.O. Bariswan, District- Bhagalpur. 77. Surendra Prasad, son of late Jageshwar Prasad Mehta, resident of village Laundh, P.O. Sirdaha, District- Nawada. 78. Krishna Nand Singh, son of Jang Bahadur Singh, resident of village Bishai, P.O.Manikpur, District- Munger. - 5 - 79. Raj Kumar Yadav, son of late Jagdish Yadav, resident of village Kamugama, P.O.Sangrampur, District- Munger. 80. Bindeshwari Prasad, son of Mahabir Prasad, resident of village and P.O. Lohchi, P.S. Haveli Kharagpur, District- Munger. 81. Pratap Mandal Akela son of late Sadho Mandal, resident of villagte & P.O.Gaurabdih, P.S.Sangrampur, District- Munger. 82. Sita Ram Singh, son of late Bhavesh Chandra Singh, resident of village & P.O. Jamalpur, P.S. Jamalpur, District- Munger. 83. Kapildeo yadav, son of late Bhuto Yadav, resident of village & P.O.Lakna Parsa, P.S. Tarapur, District-Munger. 84. Santosh Kumar son of Sri Ramdeo Sao, resident of village Mohiuddinpur, P.O. Beswak, P.S.Islampur, District- Nalanda- 801303. 85. Satya Narain Singh, son of Sri Giriwardhari Singh, resident of village-Mansoorpur, P.O.Sarai, District- Vaishali. 86. Siya Ram Singh, son of late Nawadeep Chandra Singh, resident of village Painapur, P.O.&P.S.Bikram, District- Patna. 87. Girindra Kumar, son of late Sukhdeo Mahto, resident of village & P.O.Dobhi, District- Gaya. 88. Ashok Kumar Singh, son of Ram Dhari Singh,resident of Mohalla- New Mainpur, Danapur Cantt., District- Patna-801503. 89. Yadu Nandan Yadav, son of late lalit Yadav, resident of village & P.O. Kamta, P.S. Parasi, District-Arwal-804428. ………………………………………… Petitioners Versus 1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar, Patna. 2. Principal Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna. 3. Principal Secretary, Finance Department, Government of Bihar, Patna. 4. Principal Secretary, Energy Department, Government of Bihar, Patna. 5. The Bihar State Electricity Board through its Chairman. 6. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 7. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 8. The General Managers-cum- Chief Engineers of all Electric Supply Undertaking working in different areas in the State of Bihar under the aegis of Bihar State Electricity Board, Patna……………….. … .. Respondents ----------- For the petitioners: Mr. Y.V. Giri, Senior Advocate - 6 - Mr. Sanjeev Kumar, Advocate Mr. Nikhil Agrawal, Advocate For B.S.E.B.: Mr. Anand Kumar Ojha, Advocate For the State: Mr. Md. Shahid Siddique A.C. to A.A.G.IX. --------------- 2. 29.4.2011 Heard learned counsel for the petitioners and learned counsel for the respondent Bihar State Electricity Board as also learned counsel for the State. The petitioners, who are Ex-Armymen employed on contract basis in the respondent Board for the purpose of meter reading, etc. as Electric Consumption Assessment Worker ( E.C.A.W.) and Electric Consumption Assessment Spervisor (E.C.A.S.), seek quashing of letter dated 13.1.2011 issued by the respondents, by which all General Managers-cum- Chief Engineers of different Electricity Supply Areas were directed not to take work from the petitioners, and the consequential orders passed pursuant to the same. They further seek permanent absorption in the Board as class-III employee. In the years 1999 and 2001, advertisements were issued and again in the year 2003, requisitions from the Employment Exchange were made to take the services of Ex- Armymen/Ex-Army(Non Commissioned) Officer/ Ex-Army Officers on contract basis for improving the efficiency of meter reading, timely services of bills, consumers’ grievance redressal - 7 - and inspection of disconnected premises. The petitioners after an interview were engaged on a contract basis initially for a period of two years with stipulation that the same may be extended by one year for E.C.A.W. and two years for E.C.A.S. However, the petitioners continued to be engaged even beyond the said period, as their services were extended by the Board from time to time without any break, the last extension having been granted by office order dated 22.11.2010 till 30.6.2011. On 13.1.2011, the impugned circular letter was issued to all the General Managers-cum- Chief Engineers of different Electric Supply Areas stating that the Board has decided to outsource the work of meter reading and bill distribution by handing over the said work to private Agency in different Supply Areas/Circles/Divisions and in the said changed circumstance, there was no justification for taking work from ECAW and ECAS and their services were not required any more. Accordingly, it was requested that the work should not be taken from them and in terms of clause 3 of the contract action be taken. Pursuant to the same, various letters were issued to different petitioners stating that in terms of their contract, their services were terminated after giving 15 days’ notice. Aggrieved by the same, the petitioners have approached this Court. - 8 - Learned counsel for the petitioners submits that the right of the Board to terminate the services of the petitioners after giving 15 days’ notice would only apply for a period of three years in terms of the advertisement and for the subsequent period when the services of the petitioners had been extended by the office order, the terms and conditions of the earlier contract with respect to termination without assigning any reason after giving 15 days’ notice would not be applicable, as no such stipulation was made in the orders granting extension. It is further submitted that lastly the services of the petitioners had been extended by order dated 22.11.2010 till 30.6.2011 and it is not open to the authorities of the respondent Board to terminate the services of the petitioners before the end of June in terms of the said office order. It is also the contention of learned counsel that the duties and responsibilities of E.C.A.W. and E.C.A.S. are not confined to meter reading only, but they are also required to perform other duties like making entries in the consumer meter reading card, giving a meter status report, to make an assessment by making total connected load of the consumers and energy consumption assessment every six months, receiving consumer’s complaint regarding meter, bill, payment, collection other - 9 - problems in supply and submitting them to A.E.E./E.E.E. and they were also required to visit at least 100 consumers’ disconnected premises in every month and submit report to the AEE/EEE. It is, thus, urged by learned counsel that outsourcing work regarding meter reading and bill distribution, which is the reason for the disengagement of the petitioners, does not take care of the entire functions of the ECAW and ECAS Thus, the same is not a good ground for putting the services of the petitioners to an end. It is also the contention of learned counsel for the petitioners that although the contract stipulates termination without assigning any reasons after giving 15 days from either side but the same has no relevance, as the Board and the petitioners do not enjoy equal bargaining power. It is urged that the said condition must be held as void and unenforceable. In support of the same, learned counsel for the petitioners relies upon the decision of the Supreme Court in the case of Central Inland Water Transport Corporation Limited and others vs. Brojo Nath Ganguli and another: (1986) 3 SCC 156 in which a term in contract of employment as also service rules of the company providing for termination of services of permanent employees without assigning reasons by giving for three months’ - 10 - notice or pay in lieu thereof on either side was held on facts as unconscionable, arbitrary and opposed to public policy, hence, void under Section 23 of the Contract Act as also violative of Article 14 of the Constitution. Learned counsel for the petitioner also relies upon a decision of this Court in the case of M/s. Shakti Cold Storage and another vs. Bihar State Electricity Board and others 2011 (1) PLJR 264, in paragraph Nos. 23 and 24 of which it has been held as follows:- “23. So far as the reliance placed by both the parties in Central Inland Water Case (supra) is concerned, learned counsel for the petitioners harps upon the question of unequal bargaining power, whereas learned counsel for the Board relies upon the observation that the principle may not apply where both the parties are businessmen and the contract is a commercial transaction. It is evident from a close reading of the said decision that it clearly applies to a situation in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the - 11 - terms imposed by the stronger party or go without them. It also applies where a man has no choice, or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. It is evident that the contract dated 11.6.2008 cannot be considered a mere commercial transaction where both the parties are businessmen. The Bihar State Electricity Board is a State created monopoly being the sole supplier of electricity to the petitioners/consumers. The petitioner had no choice but to obtain electricity from the Board on terms and conditions stated by it. If the petitioners had not complied with the demands of the Electricity Board, which in the present case appears to be wholly illegal, they would have no choice but to face disconnection of electric supply as a consequence of which the - 12 - entire stock of potatoes stored in its Cold Storage by the farmers would become rotten resulting in claims for damages of huge amounts. The situation itself was such that they had no option but to succumb to the demands of the Board and act in a manner so that their electrical supply would not be disrupted. 24. In the said circumstances, this Court is constrained to hold that the so-called agreement dated 11.6.2008 was entered into between the petitioners and the Board in a situation in which the petitioner had no option but to accept the electric supply on the terms and conditions imposed by the Board unreasonably. In that view of the said contract cannot be allowed to stand and it is, accordingly, quashed.” Learned counsel also relies upon the decision of the Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi and others: 2006 (2) PLJR 363 (S.C.), in paragraph No.44 of which it has been held as follows:- - 13 - “44.One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly - 14 - sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” It is urged by learned counsel on the basis of the aforesaid decision that there are approximately 300 vacancies of class-III posts and the petitioners can easily be absorbed on the said posts and their services can be regularized in terms of the decision in Uma Devi’s case (supra). The further submission of learned counsel is that the - 15 - Government of Bihar by Circular letter dated 6.5.2008 has taken a decision to give priority to Ex-Armymen in the appointment to class-III and Class-IV posts. It is urged that the Board being a public undertaking of the State Government should also take the said Circular into account and accordingly fill up class III posts, which are vacant. Learned counsel in this context points out another circular dated 6.3.1990 of the State Government in the Personnel and Administrative Reforms Department in which it is stated that in the matter of appointment of Ex-Armymen, their cases should be considered, if they do not exceed 53 years of age on the date of application. It is also the contention of learned counsel for the petitioners that several Data Entry Operators/Computer Support Staff had been appointed similarly on contractual basis by the Board in the year 2008, but subsequently their services have been regularized and they have been absorbed in the Board, whereas discrimination is being meted out to the petitioners. Learned counsel for the respondent Board, on the other hand, submits that the appointment of ECAW/ECAS was purely on contract basis for meter reading and it was clearly provided both in the advertisement as also in the subsequent letter of appointment that their services can be terminated after giving - 16 - fifteen days’ notice without any reason to the other party. It is also urged by learned counsel that the advertisement itself makes it clear that the payment was to be made on the basis of the quantum of meter reading and allied works performed by them with fall back wages of Rs. 2000/- per month for 800 meter reading and there was also provision for deduction of Rs. 4.50 per short fall in the same. Incentive for meter reading above 800 at different higher rates for higher slabs had also been provided and thus the petitioners had not been appointed as regular employees in the Board on any scale of pay. It is also contended that at no point of time any assurance was given to the petitioners for their absorption/regularization in the Board. Since the original appointment of the petitioners was on the basis of contract, the extension from time to time was given on the basis of the same contractual terms and there was nothing in the order of extension, which modified the mutual rights of the parties. It is further submitted by learned counsel that the petitioners were not doing the work of class-III post and thus, there is no question of their being absorbed/regularized as class- III employees in the Board. With respect to the appointment of Data Entry - 17 - Operators, it is submitted by learned counsel for the Board that the services of computer support staff appointed on contract basis had not been regularized/absorbed in the Board, rather when the Board decided to make regular appointments with respect to the work which was being performed by them, they were given an opportunity to compete with all others in that regard and on the basis of their performance in the selection process, they have been appointed. Learned counsel also relies upon the decision of the Apex Court in the case of Uma Devi (supra) by relying upon the observations of the Apex Court in paragraph Nos. 34, 35 and 39 in which it has been held that if it is a contractual appointment, the appointment comes to an end with the end of the contract; further that there is no fundamental right in those who have been