1. The petitioner has preferred this application against the order No. 810, dated 13 July, 1999, whereby and whereunder giving reference to Finance Department's Circular No. 5074, dated 20 September, 1990, the Chief Engineer, Subernarekha Multipurpose Project, Jamshedpur, while rejected the application of petitioner for grant of regular scale, terminated his service.
2. The case of the petitioner is that he was engaged on daily-wage as driver on 11 October, 1980 and was deputed to perform duty under S.D.O, Dalbhum, Jamshedpur. Subsequently, he was given appointment as jeep driver in the regular scale in the work charged establishment vide Office Order No. 2359, dated 31 December, 1985, issued by the Chief Engineer, Subernarekha Project, Jamshedpur. He was transferred to Subernarekha Canal Division., Gangudi vide order, dated 7 February, 1997, and was also allowed annual increment vide Office Order No. 89, dated 7 February, 1997 and Memo No. 828, dated 29 October, 1999.
3. The Bihar Rajya Nadi Ghati Ebam Sinchai Karmachari Sangh preferred a writ petition before this Court, being C.W.J.C No. 644/97(R) for regularisation of service of jeep driver of Water Resources Department. It was disposed of on 26 June, 1997 with direction to concerned respondents to decide the representation.
The petitioner also represented for taking him in the regular establishment but it was rejected by impugned Memo No. 810, dated 13 July, 1999.
The Chief Engineer, Jamshedpur, has shown number of grounds to reject the application vide impugned Memo No. 810, dated 13 July, 1999. One of the grounds taken that the persons were appointed after 21 October, 1984, though there was bar of appointment made by Circular No. 5074 dated 20 September, 1990. The other ground to reject the claim was based on reference of Water Resource Department's letter No. 309, dated 30 January, 1997.
4. The case was taken up on 19 September, 2000 when it was brought to the notice of the Court that the State of Bihar framed condition of service in respect to work charged employees vide F.D Memo No. 1344, dated 4 February, 1949, having force of rule framed under Proviso to Art. 309 of the Constitution of India, in view of the State Government's Notification No. 2555/3127/50, dated 15 April, 1950. In terms of the aforesaid statutory rule of 1949, if a post in work charged establishment continues for a number of years, to be taken in permanent establishment and the incumbent having more than one year of satisfactory work is entitled to be taken in the permanent establishment. Counsel for the State of Bihar was directed to obtain instruction as to why in terms with 1949 Rule, the service of the petitioner be not taken in the regular establishment of the State, having worked in work-charged establishment since long.
5. The respondent Nos. 1 to 6 filed a counter-affidavit opposing the prayer made in the writ petition. According to them, the petitioner worked as work charged driver from 1 January, 1986 to 23 July, 1999 on ad hoc basis and in terms with the direction of the Court, the representation was considered and rejected vide impugned order, dated 13 July, 1999. One or other fact stated and certain ground though taken. The question on which it was asked to reply vide order, dated 19 September, 2000, has not been dealt with.
6. The fact not in dispute that the petitioner was engaged in the work-charged establishment since 1 January, 1986 and continued till impugned order was issued.
The only question arises as to whether he accrued certain right to be taken in the regular establishment and the ground given in the impugned order are good or not.
Admittedly, there are two establishments under the respondents, one work-charged and the other regular.
The respondents-State of Bihar issued guidelines from time to time laying down conditions of service of work-charged employees including the manner in which they are to be taken in the regular establishment.
7. The State Government from Finance Department issued Memo No. 1344, dated 4 February, 1949, laying down condition of service of work-charged employees, as set out hereunder:
(Quoted from Page 137 of Malhotra Bihar P.W.D Code)—
“Vide F.D Memo No. 1344, dated 4 February, 1949. Subject-revised conditions of service of work-charged establishment.
The existing distinction of service of work charged establishment temporary and permanent establishment and daily labour as given in the P.W Code and P.W.D Accounts Code will be maintained but the conditions of service of work-charged establishment will henceforth be identical with those of temporary Government servants.
The posts in work-charged establishment which are of permanent nature, that is required for 12 months in the year and for long and indefinite period will be made permanent and included in permanent establishment and the men employed on these posts, having one year's approved service will be included amongst permanent Government employees. Details in this connection are being worked out and till this is done the conditions of service applicable to temporary Government servants will apply to all work-charged posts.”
The aforesaid circular was made a rule under proviso to Art. 309 of the Constitution of India vide Government of Bihar Resolution No. 17, dated 26 April, 1950, issued from Political and Appointment Department, which reads as follows:
“Bihar Gazette P.T 2(ii) No. 17 dated 26th April, 1950 Political and Appointment Department Notification, dated 15 April, 1950, No. 3555-3L27/50A.
In exercise of the power conferred by the proviso to Art. 309 of Constitution of India, the Governor of Bihar is pleased to make the following rules, namely:
‘All enactments, rules and orders, which are made under any enactment or otherwise, which regulated the recruitment and condition of services of persons appointed through public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which were enforced immediately before 26 January, 1950, shall, until provision is made by or under any Act of the State Legislature to regulate such recruitment and conditions of service, be in force as if they had been made by virtue of the power under the said proviso.’
By the order of the Governor of Bihar
L.P Singh
Chief Secretary.”
Thus, in terms with rule, dated 4 February, 1949, if a work-charged establishment is of permanent nature, required for 12 months in a year for long and indefinite period, is to be made permanent and included in the permanent establishment. Similarly, the persons employed on those posts, having one year's approved service to be included amongst permanent employees.
The Circular No. 5074, dated 20 September, 1990, of which reference given in the impugned order, dated 13 January, 1999, fell for consideration before this Court in the case of Puran Chandra Mahto v. State of Bihar (unreported), [C.W.J.C No. 3781 of 1998 (R)]. A Bench of this Court in its judgment and order, dated 21 September, 2000, took into consideration that the State of Bihar by aforesaid Circular No. 5074, dated 20 September, 1990, merely directed to regularise the services of the work-charged employees engaged prior to 21 October, 1984 and not the employees engaged thereafter. There was no bar made for appointment after 21 October, 1984, nor any direction was given to terminate the services of those appointed in the work charged establishment after 21 October, 1984.
The aforesaid Circular No. 5074, dated 20 September, 1990, has been enclosed by the respondents as Annexure 8 wherein while giving direction to regularise the services of those appointed prior to 21 October, 1984, it was ordered not to regularise the services of those work-charged employees appointed after 21 October, 1984.
8. It is not in dispute that the instrument, dated 4 February, 1949, is a statutory rule framed under proviso to Art. 309 of the Constitution of India. There is no bar made in respect to work-charged employees to take them as regular employees in the permanent establishment, except in cases where approved service of a person is less than one year and if the post against which such person is working is not required for 12 months and for long and indefinite period. In absence of such bar, the respondents cannot exclude the work-charged employees who are otherwise entitled in terms with 1949 Rules to be taken in the regular establishment on the basis of a cut-off date i.e, 21 October, 1984 as laid down vide Resolution No. 5074, dated 20 September, 1990. The resolution, dated 20 September, 1990, cannot override the statutory 1949 Rule framed under proviso to Art. 309 of the Constitution of India.
9. The respondents have not enclosed the copy of Water Resources Department letter No. 309, dated 30 January, 1997, of which reference has been given in the impugned order, dated 13 July, 1999. In any case, such letter No. 309, dated 30 January, 1997, cannot override the 1949 statutory rule framed under proviso to Art. 309 of the Constitution of India.
10. For the reasons aforesaid, the impugned order, dated 13 July, 1999 having issued on wrong presumption that no appointment could have been made after 21 October, 1984 in the work charged establishment and the order having issued without taking into consideration the 1949 Rule and without application of mind, the impugned order No. 810, dated 13 July, 1999, is set aside.
The respondents are directed to consider the case of petitioner for taking his service in the regular establishment/permanent establishment in the light of 1949 Rule, as quoted and referred above, within six months from the date of receipt/production of a copy of this order.
11. The writ petition is allowed, with the aforesaid observations.