State Of Jharkhand & Ors vs Kamal Prasad & Ors

4. The respondent-employees (the writ petitioners before the High Court), were initially appointed in the year 1981 in the posts of Junior Engineers in the Rural Development Department in the erstwhile State of Bihar in respect of which the recommendation of the Bihar Public Service Commission (for short “the BPSC”) was not required. It is the case of the respondent-employees that they have continuously discharged their duties in the above posts honestly and diligently to the satisfaction of their employer. They were subsequently appointed on ad-hoc temporary basis as Assistant Engineers in the pay-scales of [pic]1000-50-1700 P.Ro-10-1820/-, with certain conditions on the basis of recommendation made by the BPSC against temporary posts from the date of notification. Their services as Assistant Engineers on ad-hoc basis were entrusted to work in the Road Construction Department where they were required to contribute their work within the stipulated period. The relevant condition No. 2 in the said notification No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is extracted hereunder:-

8. The correctness of the same was challenged by the appellants before the Division Bench in the Letter Patent Appeal No. 256 of 2011 and other connected LPAs. The learned senior counsel for the parties were heard at length. After considering the rival legal contentions and noticing the relevant facts of these cases it was held by the Division Bench of the High Court that 200 posts have been created by the erstwhile State Government of Bihar in Rural Engineering Organization of the Road Construction Department and the said posts have been advertised by the department in Advertisement No. 13 of 1985 and against those posts the respondent-employees and other similarly placed employees were appointed after selection to the posts of Assistant Engineers on ad hoc basis with permission of the BPSC and they continued as such in the said posts. On 15.11.2000, the State of Jharkhand was created by bifurcation of the State of Bihar by the Act of Bihar Reorganisation Act, 2000. It is the case of the respondent-employees that as per Section 72 of the Act of 2000, the persons who were working in the posts falling in the territory of the State of Bihar were to continue in the posts in the State of Jharkhand. It is not in dispute that the said employees continued in the employment in the State of Jharkhand after creation of new State. Thereafter, an order was passed by the High Court on 22.3.2010, in the Writ Petition No. 1001 of 2010 filed by Kamal Prasad & Ors. which is produced on record as Annexure-15 in the L.P.As. On the basis of the said order, the State Government of Jharkhand unilaterally decided that the appointment of the respondent-employees were not valid and accordingly it had directed that they should go back to the State of Bihar. The said action of the State of Jharkhand was found fault with by the High Court. The High Court, in the case of Ram Swarath Prasad v. State of Jharkhand & Ors.[1] has held that the said power was not available with the State Government of Jharkhand i.e. to pass unilateral order directing the respondent-employees to go back to the State of Bihar, which action of it is not in consonance with Section 72 of the Bihar Reorganisation Act, 2000. This aspect was also observed by the learned single Judge in his judgment impugned in the LPAs filed by the respondent employees. However, it was observed that it is open to the appropriate authorities having power to take reasonable decision after issuing show-cause notices to the employees with regard to the final allocation of the cadre to the State of Jharkhand in accordance with law. The State Government of Jharkhand had interpreted the order dated 22.3.2010 as a direction to it and it had proceeded to terminate the services of these employees. The State Government took a decision to terminate the services of all such engineers including the respondent- employees in these appeals and notices were issued to them and the same were stayed in the interlocutory application filed by the respondent- employees and status-quo order dated 9.9.2010 was passed as per Ann.-18 in the Writ Petition(S)No.2087 of 2010. Finding the said situation, the State Government submitted that they are keeping the order of termination of services of the respondent-employees and similarly situated employees in abeyance. The State Government rejected the representations of the respondent-employees and terminated their services vide separate but similar orders dated 24.8.2011. The orders of termination were questioned by the respondent–employees by filing interlocutory application in the Letters Patent Appeals questioning their propriety, correctness and legality of the orders of termination passed against them and action taken by the State Government of Jharkhand against them. In the Letters Patent Appeals, the Division Bench of High Court on 13.9.2011 passed an interim order directing the appellants to maintain status-quo and the respondent- employees were allowed to work in the posts. The Division Bench accepted the factual and legal submissions urged on behalf of the employees that they were appointed as back as in the year 1981 in the posts of Junior Engineers which were not illegal or even irregular and they are qualified persons and eligible to hold the posts. They rendered their services satisfactorily and therefore, the State Government of Bihar has appointed them in the posts of Assistant Engineers by the order of the Government dated 27.6.1987 and continued them in their services as such till the orders of termination passed against them on 24.08.2011, that too during pendency of the Letters Patent Appeals before the Division Bench of the High Court. It is observed by the Division Bench that the respondent- employees have been in service independent of any interim order passed by the court. The State Government was in need of Junior Engineers, therefore, the State Government of Bihar allowed the services of the respondent-employees in the posts. Thereafter, the State Government of Bihar has decided to appoint them in the posts of Assistant Engineers and it was under the impression that their names will be recommended by the BPSC. After accepting the case of the respondent-employees that since 1987 till 2011 when the orders of termination of service were passed, they continued in service and their salaries were paid with other service benefits including increments and they were duly transferred from the State of Bihar to the State of Jharkhand when it was formed and they were treated as regular appointees for which the Jharkhand State Government did not object their continuance in their services. The Order dated 22.3.2010 passed by the High Court in the writ petitions referred to supra seems to have been interpreted by the officers of the Jharkhand State Government as a direction to it to proceed with to terminate the services of the respondent-employees. The Division Bench of the High Court after referring to the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors.[2], has clearly held that if a person has served for 10 years or more, then it is the duty of the State Government to consider his case for regularization in the post. The said conclusion came to be reached by relying on Articles 309, 14, 16 of the Constitution of India. Relying upon Umadevi & Ors. (supra), the High Court has further referred to the judgment in the State of Karnataka & Ors. v. M.L. Kesari & Ors.[3] which is considered by this Court and this Court has clearly held that the case of Umadevi & Ors. (supra) cast a duty upon the State Government to take steps to regularize the services of those irregularly appointed appointees, who had served for more than 10 years without the benefit or protection of any interim order. Further in the said case, this Court has declared that it has been clearly ordered that one time settlement/measure should be taken within six months i.e. from 10.04.2006. With reference to the aforesaid decision the learned senior counsel appearing on behalf of the respondent-employees placed reliance upon Article 142 of the Constitution in support of the submission that order of the Supreme Court be respected and implemented by its true meaning and spirit. Therefore, the Division Bench of the High Court accepted the same and came to the conclusion that the claims of the respondent-employees for regularization in their posts are fit cases and they became unfortunate only because of the creation of the State of Jharkhand over which the employees had no control and could not have prevented creation of the State of Jharkhand and because of that reason only, one State cannot take a different stand with respect to the employees appointed by same process. The State Government cannot throw the employees jobless after 30 years of their continuous service in public employment guaranteed under Article 16 of the Constitution, which would result in great injustice since their source of income will be taken away and thereby the employees and their families will suffer due to the arbitrary action of the State Government of Jharkhand which deprived a person of life and liberty guaranteed under Articles 19 and 21 of the Constitution of India.

18. With reference to the above said rival legal contentions, urged on behalf of the parties the following points would arise for consideration in these Civil Appeals :-

22. In view of the foregoing reasons, we are inclined to conclude that the High Court was legally correct in extending the benefits of Uma Devi’s case to the respondent-employees. Therefore, we answer point nos. 1 and 2 in favour of the respondent-employees.

23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden.