Allowed

Ram Yash Sah and Ors. v. the State of Bihar and Ors.

Patna HC22 May 2015CWJC/23005/2011

Case brief

AI extract

What is this about?

Writ petitions by officers and employees of the dissolved Bihar State Agriculture Marketing Board challenging conditions in the absorption resolutions treating their absorption as fresh appointment. The High Court quashed that condition, granted continuity of service, directed equitable fixation of seniority in the merged cadres and directed reconsideration of the condition restricting them to the

What did the court decide?

Condition treating absorption as fresh appointment quashed; continuity of service granted to petitioners and similarly situated employees; respondents directed to fix seniority on equitable principles

Ram Yash Sah and Ors. Vs the State of Bihar… — Pension and Retirement Benefits | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.4452 of 2012

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Ram Surat Singh S/O Late Shankar Singh R/O Village- Chhitratand, P.S.Chenari, District- Rohtas, At Present Posted As Assistant Engineer, In The Office Of Executive Engineer, Rural Works Department, Work Division No.2, Rosara (Samastipur)

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Suresh Prasad Singh S/O Late Uchit Narayan Yadav R/O Village- Keshuli, P.S.- Benipatti, District- Madhubani, At Present Posted As Assistant Engineer, In The Office Of Executive Engineer, Rural Works Department, Work Division No.3, Gaya

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Sudama Sharma S/O Late Birda Sharma R/O At + P.O.- Thakuri, P.S.- Paliganj, Distt.- Patna, At Present Posted As Assistant Engineer, In The Office Of Executive Engineer, Rural Works Department, Work Division No.2, Begusarai

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Nirankar Malviya S/O Late Hargauri Tiwai R/O At + P.O.- Mahdeo Simaria, P.S.- Sikandra, Distt.- Jamui, At Present Posted As Assistant Engineer, In The Office Of Executive Engineer, Yojana And Vikash Vibhag, Work Division No.1, Chapra (Saran)

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Bijendra Prasad Singh Yadav S/O Late Mangal Prasad Singh Yadav R/O At + P.O.- Amari, P.S.- Dharhara, District- Munger, At Present Posted As Assistant Engineer, In The Office Of Executive Engineer, Rural Works Department, Work Division No.3, Gaya

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Anand Gopal S/O Late Ram Bahadur Mishra R/O Village- Pachamba, P.S. & District- Begusarai, At Present Posted As Assistant Engineer, Rural Works Department, Sub-Division, Araria

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Karamchand Sah S/O Late Dwadashi Sah R/O Villge- Tekniwash, P.O.Kachnar, P.S.- Revilganj, District- Chapra (Saran), At Present Posted As Estimating Officer, In The Office Of Superintending Engineer, Rural Works Department, Circle-2, Saharsa

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.... .... Petitioner/s

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Versus

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The State Of Bihar Through The Agriculture Production Commissioner Department Of Agriculture, New Secretariat, Bihar, Patna

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The Agriculture Production Commissioner, Department Of Agriculture, New Secretariat, Bihar, Patna

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The Principal Secretary Finance, Old Secretariat, Government Of Bihar, Patna

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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The Principal Secretary Samanaya Prasashan Department, Old Secretarita, Government Of Bihar, Patna

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The Principal Secretary Road Construction Department, Bishesharaiya Bhawan, Bailey Road, Patna

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The Principal Secretary Rural Works Department, Bishesharaiya Bhawan, Bailey Road, Patna

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The Secretary Department Of Agriculture, New Secretariat, Bihar, Patna

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The Deputy Secretary Road Construction Department, Bishesharaiya Bhawan, Bailey Road, Patna

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The Deputy Secretary Samanaya Prasashan Department, Old Secretariat, Government Of Bihar, Patna

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The Authorized Officer, Finance (P.C.F.C.) Department, Old Secretariat, Government Of Bihar, Patna .... .... Respondent/s

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with

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Civil Writ Jurisdiction Case No. 1717 of 2012

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Vijay Kumar Singh S/O Ram Sawroop Singh R/O New Patna Colony, Beur, Anisabad, Distt.- Patna, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Agriculture Office, Sasaram

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Binod Kumar S/O Sri Madan Prasad Singh R/O F/39, Vijay Nagar, Hanuman Nagar, Kankarbagh, Distt.- Patna, At Present Posted As Vegetable Extension Officer, In The Office Of District Horticulture Office, Jehanabad

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Lilly Kutty Abraham W/O Mr. K.T. Abraham Kavumkal House, Kanjeetum Kara, P.O.- Ayroor South, Distt.- Pathanamthitta, State Of Kerala, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Agriculture Office, Danapur, District- Patna

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Ramjanam Pandit S/O Sri Ram Bilas Pandit R/O Village And Post- Madhopur Nijhama, Vaya-Mahua, P.S.- Mahua, Distt.- Vaishali, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Agriculture Office, Masaurhi, Distt.- Patna

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Aftab Alam S/O Late Md. Moinuddin R/O Mohalla- Rauja Ara, Post- Ara Chauk, Distt.- Bhojpur, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Agriculture Office, Ara, Distt.- Bhojpur

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Ramanand Singh Yadav S/O Hari Narayan Singh Yadav R/O Village- Bareji,

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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Post- Lahna, Vaya-Satramganj Bazar (Bhadaura), Distt.- Bhojpur, At Present Posted As Field Assistant, In The Office Of Sub-Divisional Agriculture Office, Buxar, Distt.- Buxar

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Ram Badan Singh S/O Sri Shivbachan Singh R/O Village- Karmi, PostKukudha, Distt.- Buxar, At Present Posted As Field Assistant, In The Office Of Sub-Divisional Agriculture Office, Buxar, Distt.- Buxar

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Ram Vinay Sharma S/O Late Mundrika Singh R/O Village- Nima, PostNadwan, Distt.- Patna, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Office, Jehanabad, Distt.- Jehanabad

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Binod Bihari S/O Late Laxman Prasad R/O Purnendu Nagar, Phulwari Sarif, Patna, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Office, Bihar Sarif, Distt.- Nalanda

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Nawdip Singh S/O Late Ambika Prasad Singh R/O Birkuarsing Nagar, Janta Road, Distt.- Patna, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Office, Ara, Distt.- Bhojpur

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Naresh Mohan Jha S/O Late Vidyanath Jha R/O Village & Post-Mangrauni, Pachhwari Tola, Distt.- Madhubani, At Present Posted As Farm Assistant, In The Office Of Sub-Divisional Office, Sasaram

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.... .... Petitioner/s

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Versus

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The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna

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The Principal Secretary Department Of Finance, Old Secretariat, Patna, Bihar

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The Principal Secretary Samanaya Prashasan Department, Old Secretariat, Patna, Bihar

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Deputy Secretary Samanaya Prashasan Department, Old Secretariat, Patna, Bihar

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The Agriculture Production Commissioner Department Of Agriculture, New Secretariat, Patna, Bihar

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The Secretary Department Of Agriculture, New Secretariat, Bihar, Patna

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.... .... Respondent/s

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with

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=========================================================== Civil Writ Jurisdiction Case No. 23005 of 2011

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Ram Yash Sah S/O Yougeshwar Sah R/O Village-Rambhelahi, P.S.-Parihar, Distt.-Sitamarhi, At Present An Emplyee Of Energy Department, Govt. Of

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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Bihar, Patna And Presently On Deputtion As Junior Engineer, Electrical Estimating Division No. 1, Building Construction Department, Disheshraiya Bhawan, Patna

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Rama Kant Singh S/O Late Guteshwar Singh R/O Village-Kapasia, P.S.Kandawa, Distt. Chandauli, State Of U.P. At Present Posted As Junior Engineer, Energy Departent, Govt. Of Bihar, In Electrical Works Section Gaya Under Electrical Works Division, Bhagalpur.

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Raj Narayan Upadhaya S/O Late Baidya Nath Upadhaya, R/O VillageKazipura, P.S.-Doriganj, Distt.-Chapra, At Present An Emplyee Of Energy Department, Govt. Of Bihar Patna And Presently On Depution As Junior Engineer, Elecrical Estimating Division No. 2 Building Construction Department, Bisheshraiya Bhawan, Patna

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Kaushal Kishore Mandal S/O Late Dahogi Mandal, R/O Village-Kamal Nagar Colony, P.S.-Mojahitpur, Distt.-Bhagalpur, At Present An Employee Of Energy Department Govt. Of Bihar, Patna And Presently On Depution As Junior Engineer, Electrical Estimating Division No. 2, Building Constructon Department, Bishesheshraiya Bhawan, Patna.

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.... .... Petitioner/s

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Versus

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The State Of Bihar Through The Chief Secretary, Government Of Bihar, Patna

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The Principal Secretary, Department Of Finance, Old Secretariat, Patna, Bihar

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The Principal Secretary, Samanaya Prashasan Department, Old Secretariat, Patna, Bihar

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Deputy Secretary, Samanaya Prashasan Department, Old Secretariat, Patna, Bihar

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The Agriculture Production Commissioner, Department Of Agriculture, New Secretariat, Patna, Bihar

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The Principal Secretary, Energy Departement, Old Secretariat, Patna, Bihar

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The Secretary To The Government, Building Construction Department, Bisheshraiya Bhawan, Bailey Road, Patna

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The Joint Secretary, Building Construction Department, Bisheshraiya Bhawan, Bailey Road, Governement Of Bihar, Patna

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The Administrator, Bihar State Agriculture Marketing Board (Dissolved), Pant Bhawan, Bailey Road, Patna

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.... .... Respondent/s

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with

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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=========================================================== Civil Writ Jurisdiction Case No. 6156 of 2012

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Mithlesh Kumar S/O Late Mathura Sharma Resident Of Village-Sultanpur, P.S. Hulasganj, District-Jehanabad. At Present Posted As Head Clerk, SubDivisional Agriculture Office (Extension), Hilsa, District-Nalanda

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Braj Bhushan Singh S/O Late Gaya Prasad Singh R/O Girija Nagar, Suresh Colony, P.O. And P.S. Sadar, Hazaribagh, Distt.-Hazaribagh. At Present Posted As Head Clerk, In The Office Of Joint Director, Agriculture, Patna

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Bhupendra Narayan Singh S/O Rameshwar Prasad Singh R/O VillageMaldiyarpur Tola (Mokamah), P.S. Mokamah, Distt.-Patna. At Present Posted As Head Clerk, In The Office Of Deputy Director, Agriculture, Arrah

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Dilip Kumar Sinha S/O Late Tapeshwar Prasad Sinha At + P.O. Farbisganj, Mohalla-Post Office Chouk, Distt.-Araria, At Present Posted As Head Clerk, Sub-Divisional Agriculture (General) Office, Hilsa (Nalanda)

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Ram Raja Prasad S/O Late Ganesh Prasad R/O Village-Torwa, P.S. Jharaukhar (Ghorasahan), Distt.-East Champaran, At Present Posted As Head Clerk, District Agriculture Office, Arrah, Bhojpur

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Amrendra Kumar S/O Late Bundi Ram At + P.O. Wazirganj, Distt.-Gaya. At Present Posted As Head Clerk, In The Office Of Project Executive Officer, Kasba, Distt.-Purnea

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Satya Narayan Sharma S/O Late Singheshwar Singh R/O Village-Mokamah (Sarkarwar Tola), P.S. Mokamah, Distt.-Patna

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Ram Babu Singh S/O Late Gorakh Singh R/O Village-Mohanpur, Via-Rajaura, Mufasil, Begusarai, Distt.-Begusarai. At Present Posted As Head Clerk, SubDivisional Agriculture Office, Madhubani

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Dinkar Jha S/O Late Vedanand Jha R/O Village-Bhawanipur, VayaNaugachhia, Distt.-Bhagalpur. At Present Posted As Head Clerk, SubDivisional Agriculture Office, Distt.-Bhojpur

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Sanjeev Kumar-1 S/O Late Nand Kumar Prasad Flat No.1-2, Block-A, Paradise Apartment, New Area, Kadamkuan, Distt.-Patna. At Present Posted As Head Clerk Sub-Divisional Agriculture Office, Barh, Distt.-Patna

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Sanjeev Kumar-11 S/O Late Arjun Prasad R/O Village-Fatahpur, P.O. & P.S. Gogri Jamalpur, Distt.-Khagaria. At Present Posted As Head Clerk, Block Development Office, Barh, Distt.-Patna

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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Lalan Prasad S/O Late Ram Nath Prasad At-Sandha Khewaji Tola, P.O. Sandha, Distt.-Saran (Chapra), At Present Posted As Head Clerk Sub-Divisional Agriculture Office, Nawada, Distt.-Nawada

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Rabindra Kumar S/O Late Mathura Prasad At-Mandiri, Post-G.P.O. P.S. Budha Colony, Distt.-Patna. At Present Posted As Head Clerk, In The Office Of Joint Director Agriculture, Patna

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Binod Prasad Saha S/O Dhan Lal Sah R/O Village-Tikapur, P.S.-Kasba, Distt.Purnea, At Present Posted As Head Clerk, In The Office Of Project Executive Officer, Korha, Distt.-Katihar

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Bhubneshwar Lal Mandal S/O Late Arjun Lal Mandal At + P.S. Kasba, Distt.Purnea. At Present Posted As Head Clerk, Project Executive Officer, Araria, Distt.-Araria

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Md. Sarif S/O Late Abdul Kasim At Present Posted As Head Clerk SubDivisional Agriculture Office (General), Sitamarhi

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Indra Kant Jha S/O Late Ram Chandra Jha At + P.O. Goghardiha, Distt.Madhubani. Superannuated From The Post Of Head Clerk, While In The Office Of Joint Director Agriculture, Gaya

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Jitendra Pandey S/O Late Haribansh Pandey R/O Village-Daud Nagar, Distt.Aurangabad. At Present Posted As Head Clerk, Project Extension Office, Mohania, Distt.-Kaimur

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.... .... Petitioner/s

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Versus

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The State Of Bihar Through The Chief Secretary, Government Of Bihar, Patna

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The Agriculture Production Commissioner, Department Of Agriculture, New Secretariat, Bihar, Patna

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The Principal Secretary, Finance, Old Secretariat, Government Of Bihar, Patna

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The Principal Secretary, Samanaya Prasashan Department, Old Secretariat, Government Of Bihar, Patna

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The Secretary, Department Of Agriculture, New Secretariat, Bihar, Patna

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The Deputy Secretary, Samanaya Prasashan Department, Old Secretariat, Government Of Bihar, Patna

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.... .... Respondent/s

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with

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=========================================================== Civil Writ Jurisdiction Case No. 21887 of 2012

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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Tula Kant Jha S/O Late Rajeshwar Jha R/O Village- Nawkarhi, P.S. Benipatti, Dist.- Madhubani. At Present Posted As Assistant Engineer In Rural Works Department, Works Division-Imamganj, Dist.- Gaya

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.... .... Petitioner/s

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Versus

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The State Of Bihar Through The Agricultural Production Commissioner, Department Of Agriculture, New Secretariat, Bihar, Patna

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The Agriculture Production Commissioner, Department Of Agriculture, New Secretariat, Bihar, Patna

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1. The Principal Secretary, Finance, Old Secretariat, Government Of Bihar, Patna

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The Principal Secretary, Samanaya Prasashan Department, Old Secretariat, Government Of Bihar, Patna

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The Principal Secretary, Road Construction Department, Bishesharaiya Bhawan, Bailey Road, Patna

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The Principal Secretary, Rural Works Department, Bishesharaiya Bhawan, Bailey Road, Patna

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The Principal Secretary Rural Works department Bishesharaiya Bhawan, Bailey Road Patna.

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The Secretary, Department Of Agriculture, New Secretariat, Bihar, Patna

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The Deputy Secretary, Road Construction Department, Bishesharaiya Bhawan, Bailey Road, Patna

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The Deputy Secretary, Personnel And Administrative Reform Department (At Present Known As Samanay Prasashan Department), Old Secretariat, Government Of Bihar, Patna

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.... .... Respondent/s

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with

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===========================================================

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Civil Writ Jurisdiction Case No. 8725 of 2007

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Gopal Chaudhary son of late Jugeshwar Chaudhary, resident of MohallaYarpur, Road No. 1, P.S. Gardanibagh, District-patna. At present posted as market Supervisor in the Agriculture Produce Market committee, Daud nagar, District-Aurangabad.

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Bijendra Kumar Jha, son of Uma Nand Jha, resident of village-Silaut P.s Muffasil, Samastipur, District-Samastipur, at present posted as Market

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Supervisor in the Agriculture produce Market Committee Muzaffarpur, District-Muzaffarpur.

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.... .... Petitioner/s

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Versus

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The State of Bihar Through The Chief Secretary, Old Secretariat, Government of Bihar Patna

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Sri Naveen Kumar, Commissioner, Department of Finance, Old Secretariat, Government of Bihar, Patna.

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Sri M.S. Madhawan, Agriculture produce Commissioner, Department of Agriculture, New Secretariat, Government of Bihar Patna.

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Sri Amit Subhani, Secretary personnel and Administrative Reforms Department old secretariat Government of Bihar Patna.

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Sri C.K. Anil, Special Secretary Department of Agriculture, New secretariat Government of Bihar, Patna.

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The Administrator, Bihar State Agriculture Marketing Board (Abolished), Pant Bhawan, Baily Road, Patna. .... .... Respondent/s

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with

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=========================================================== Civil Writ Jurisdiction Case No. 3036 of 2012

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Nawal Kishore Prasad Singh Son Of Late Prasadi Mandal Resident Of Village - Mozaffara, Bardih, P.S. Islampur, District - Nalanda, At Present Posted As Assistant Engineer/Estimating Officer In The Rural Works Department, Office Of Executive Engineer, R.W.D. Works Division No. 1 (Sherghati), District - Gaya

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.... .... Petitioner/s

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Versus

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The State Of Bihar , Through The Chief Secretary, Government Of Bihar, Patna

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The Principal Secretary, Department Of Finance , Old Secretariat, Patna, Bihar

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The Principal Secretary, Samanaya Prashasan Department, Old Secretariat, Patna, Bihar

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Deputy Secretary, Samanaya Prashasan Department, Old Secretariat, Patna, Bihar

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The Agriculture Production Commissioner, Department Of Agriculture, New Secretariat, Patna, Bihar

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The Secretary, Agriculture Department, New Secretariat, Bihar, Patna

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The Principal Secretary, Rural Works Department, Bishesharaiya Bhawan,

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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Bailey Road, Patna

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The Administrator, Bihar State Agriculture Marketing Board (Dissolved), Pant Bhawan, Bailey Road, Patna

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.... .... Respondent/s

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=========================================================== Appearance : (In CWJC No. 4452 of 2012) For the Petitioner/s : Mr. Y.B. Giri, Sr. Adv. Mr. Jai Prakash Verma, Adv. For the State : Mr. Manoj Kumar Jha, Ac to G P-26 (In CWJC No. 1717 of 2012) For the Petitioner/s : Mr. Jai Prakash Verma, Adv. For the Respondent/s : Mr. Kundan Bahadur Singh, GP-22 (In CWJC No. 23005 of 2011) For the Petitioner/s : Mr. Umesh Singh, Sr. Adv. Mr. Jai Prakash Verma, Adv. For the Respondent/s : Mr. Mayank Rukhaiyar (In CWJC No. 6156 of 2012) For the Petitioner/s : Mr. Jai Prakash Verma, Adv. For the Respondent/s : Mr. Sumant Kumar Singh, Ac to G.A.-3 (In CWJC No. 21887 of 2012) For the Petitioner/s : Mr. Jai Prakash Verma, Adv. For the Respondent/s : Mr. Harish Kumar, G.P.-32 (In CWJC No. 8725 of 2007) For the Petitioner/s : Mr. Jai Prakash Verma, Adv. For the Respondent/s : (In CWJC No. 3036 of 2012) For the Petitioner/s : Mr. Shashi Anugrah Narayan, Sr. Adv. Mr. Jai Prakash Verma, Adv. For the Respondent/s : Mr. Harish Kumar, G.P. 32 =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 22-05-2015

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Heard the learned counsel for the parties.

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These writ applications have been heard analogously

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in view of the submissions on behalf of the parties that common issues arise for determination in all these writ applications, and are being disposed of by this judgment.

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All the writ petitioners are officers/employees of the

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Patna High Court CWJC No.4452 of 2012 dt.22-05-2015

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Bihar State Agriculture Marketing Board which stood dissolved by Bihar Agriculture Produce Market (Repeal) Act, 2006 repealing the Bihar Agriculture Produce Market Act, 1960 and Bihar Agriculture Produce Market Rules, 1975. In view of the provisions of the Repeal Act providing for absorption of officers and employees of Bihar Agriculture Marketing Board/Marketing Committee/Bazar Samiti, the decision was taken to absorb the petitioners in the different departments of the State Government and accordingly the petitioners have been absorbed. However, the petitioners are aggrieved by the conditions in the resolutions/notifications, the dates of which may vary in respective cases of the writ petitioners, stipulating that the absorptions of the petitioners would be treated as fresh appointments in the government service and the new pension scheme would be applicable to such absorbed officers/employees. In sum and substance, the claim of the writ petitioners is that their absorptions in government service cannot be treated, in the facts and circumstances, to be fresh appointments therein and they are entitled to continuity in service and all the benefits resultant thereof including the seniority in the cadre where they have been respectively placed. In sequel, the further claim of the petitioners is that they are entitled to old pension scheme as available to the government servants and the new pension scheme introduced in the

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year 2005 shall not be attracted in their cases as they are not fresh appointees.

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The learned counsel for the parties have relied upon a number of decisions of the High Courts and the Apex Court in support of their respective stands. Those decisions shall be appropriately referred hereinafter in this judgment.

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In order to appreciate the rival submissions on behalf of the parties, it would be profitable here to take into notice the relevant provisions of the Bihar Agriculture Produce Market (Repeal) Act, 2006 (hereinafter referred to as „the Repeal Act). By virtue of Section 4 of the Repeal Act, all assets and liabilities of the Board or the Committee or Samiti stood vested in the State Government from the date of coming into force of the Repeal Act. Section 6 of the Repeal Act has provided for absorption of the officers and employees of the Board/Committee/Samiti, and clause (I) and (II) of Section 6 read as follows:-

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Sec.6 (I)- On and from the date of repeal of the Act, all officers and employees of the Board, shall remain in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such final

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decision as is provided hereinafter.

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(II) The State Government shall constitute a committee of secretaries consisting of three secretaries, who shall prepare detail scheme of absorption, retirement, compulsory retirement or voluntary retirement, other service conditions of officers and employees of the Board and the committee. Scheme prepared by group of secretaries shall be placed before the State Government within two months from the date of enforcement of the present Act. The State Government shall thereafter approve the scheme.

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Provided that it shall be open to the State Government to modify, amend or suggest modification or amendment and the scheme thereafter shall be made operational in such form and interest as finally approved by the Statement Government, scheme approved by the State government shall be considered as statutory scheme framed under this Act.

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The group of secretaries appointed thereafter prepared

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the scheme for absorptions which was approved by the government on 12.08.2008 and accordingly the resolution/notification dated 02.09.2008 was made for absorption of altogether 1709 officers/employees on the conditions which also included the following conditions:-

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“ (1) d`f’k foi.ku i’kZn ,oa cktkj lfefr;ksa eas inLFkkfir dfeZ;ksa dk lek;kstu ftl in ij gksuk gS mUgsa mlh in dk osrueku vuqekU; gksxk pkgs mudk osrueku iwoZ esa vf/kd D;ksa u jgk gksA osru laj{k.k dk mUgas ykHk ugha fn;k tk;sxkA

¶186

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------¼4½ lacaf/kr foHkkxksa ds fjDr inksa ij lek;kstu mu lsok “krksZa ds vf/ku dh tk;sxh tks lek;kstu dh frfFk dks mlds fy, ykxw gksxhA bl ladYi ds fuxZr dh frfFk ls gh lek;kstu ds QyLo:Ik fu;qfDr izHkkoh gksxh vkSj bls ubZ fu;qfDr ekuk tk;sxkA blh frfFk ls i’kZn@lfefr ds lek;ksftr dehZ ljdkjh lsod ekus tk;saxs ,oa blh frfFk ls ljdkjh lsodksa ds fy, vuqekU; lqfo/kk,¡ mUgsa izkIr gksxhA

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¼5½ lek;kstu ds QyLo:i fu;qDr dfeZ;ksa ds laca/k esa u;h isa”ku Ldhe ykxw gksxhA foi.ku i’kZn ,oa cktkj lfefr;ksa esa lsok ds QyLo:i vuqekU; lsokUr ykHkk s a ds Hkqxrku dh ftEesokjh jkT; ljdkj@lacaf/kr foHkkxksa ij ugha gksxhA----------”

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At this juncture, it would be pertinent to mention that the constitutional validity of the Repeal Act was questioned by the Employees Association of the Bihar Agriculture Produce Marketing

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Board/Committee before this Court in C.W.J.C. No. 10055 of 2007 and analogous writ applications wherein a Bench of this Court, while upholding the constitutional validity of the Repeal Act by its judgment as reported in 2008 (2) PLJR 74, in paragraph-84 of the judgment has observed that enough safeguard has been provided for the future of the employees and also granted liberty to the officers/employees to call in question the statutory scheme framed under the Repeal Act if it suffered from the vice of arbitrariness on the touchstone of the constitutional mandate.

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After the scheme as envisaged under the Repeal Act was approved and became operational by resolution/notification dated 02.09.2008 a number of writ applications (C.W.J.C. No. 6997 of 2008 and analogous cases) were filed by the employees association of the erstwhile Board/Committee as well as their individual officers/employees. During the pendency of these writ applications, the State Government, however, referred the matter to the three member committee for re-consideration of the conditions of the scheme by which some of the officers/employees were placed in services in the lower scale of salary. The recommendation of the committee submitted thereafter was considered by the State Government which came out with the resolution/notification dated 17.05.2010 providing for pay protection to the officers/employees of

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the Board/Committee with effect from the absorption date 02.09.2008 and for their placement on equivalent posts on absorption. This Court took notice of this resolution dated 17.05.2010 and disposed of the aforesaid batch of the writ applications by order dated 27.07.2010 in the following terms:-

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“……Let Agriculture Produce Commissioner ensure absorption of the petitioners and all others, who are included in the appendix-1 attached to the resolution dated 17.05.2010 in the replacement/revised scale of the scale in which they were earlier serving the Board before its dissolution with continuity of service w.e.f. 02.09.2008 within two months from the date of receipt/production of a copy of this order before the Agriculture Production Commissioner………”

¶197

When the aforesaid order of this Court was not complied some of the writ petitioners therein filed M.J.C. No. 5045 of 2010 (contempt) before this Court. In this contempt application, the respondent-State Government took specific stand that the pay protection and benefit of equivalent post in the light of the service rendered by them before the Marketing Board (dissolved) had been

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granted. This Court by order dated 07.12.2011 disposed of the contempt petition after taking into notice the aforesaid stand on behalf of the respondent-State Government and further granting liberty to the petitioners to challenge paragraph-5(III) and (IV) of the subsequent follow up resolution dated 12.09.2011 wherefrom it appeared that the petitioners had not been granted continuity of service.

¶201

It is the case of the present writ petitioners that even after revisiting their earlier decision dated 02.09.2008 to the extent of grant of pay protection and placement in service on equivalent posts from 02.09.2008, in the follow-up resolutions/notifications, the respondents have still maintained the conditions treating the absorption of the petitioners as fresh appointment and restricting them to the coverage of the new pension scheme. The dates of the resolutions/notifications with regard to the respective writ petitioners in the writ applications are varying but the contents under challenge are same. In view of the stand of the learned counsel for the petitioners in all the writ applications that all the writ applications proceed on common ground with common relief against the conditions as contained in the resolutions/notification dated 02.09.2008 treating the absorption of the petitioners as fresh appointment denying them the continuity of service and restricting

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them to the benefits of new pension scheme and subsequent revised resolutions/notification of different dates carrying the same conditions, this Court is not proposing to make particular reference to the notification/resolution with regard to the respective writ petitioners and, instead, is proceeding broadly to deal with the issues, the determination of which shall be applicable to the relevant resolutions/notification in question in all the writ applications.

¶205

From the provisions of the Repeal Act, as referred above, the intention of the legislature becomes manifest that after vesting of the entire assets and liabilities of the Marketing Board/Committee/Samiti in the State Government, the officers and employees of the Board/Committee/Samiti were not left in vacuum but were to be absorbed in the different services under the State Government. Simultaneously, the provision was also made for retaining them in employment on the same salary and allowances which were payable on the date of the Repeal of the Act till the final approval and implementation of the scheme of absorption to be prepared by a group of three secretaries. Manifestly, therefore, the continuity of service of the officers/employees of the erstwhile Board/Committee/Samiti was definitely stipulated and the scheme as envisaged was to be prepared only for the purpose of laying down the modalities/methodologies for the purpose of absorption,

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voluntary retirement etc. No discretion much less jurisdiction was vested in the group of the three secretaries for laying down the conditions in the scheme leading to non-absorption of such officers and employees. A Bench of this Court in State of Bihar Vs. Nandu Singh (L.P.A. No. 29 of 2010 disposed of on 22.03.2010) has also taken the view that the only course open in view of the provisions of the Repeal Act 2006 was to absorb an employee of the Board at the time of coming into existence of the Repeal Act. Perceptibly, the intention of the legislature in notionally continuing the officers/employees of the erstwhile Board/Committee/Samiti in service with same salary and allowances was to provide them uninterrupted employment after their absorption in the services under the State Government. The State Government or for that matter the group of secretaries were authorized only to take the final decision on the manner/modalities relating to absorption in accordance with which the services of such officers/employees were to be integrated with the services after their respective placements on absorption. The legislature, as it appears from the provision of the Repeal Act, has clearly not envisaged any intermission in the services of the officers/employees of the erstwhile Board/Committee/Samiti and has not contemplated termination of one service and commencement of another service after the

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absorption of such officers/employees by the final decision to be taken under Section 6 (1) of the Repeal Act.

¶212

This Court in the order dated 27.07.2010, as aforementioned, in C.W.J.C. No. 6997 of 2008 and analogous writ applications, has already issued directions to the respondents to provide continuity of service to such absorbed officers/employees with effect from 02.09.2008. The respondents in their counter affidavits, however, have tried to create a concavity in this regard by coming out with an explanation that this direction with regard to grant the continuity of service was issued only because of the delay in absorbing/placing the officers/employees in different departments of the Government, and the continuity w.e.f. 02.09.2008, as directed, was referable only to the different dates of absorption/placements. This Court is not persuaded to align with this explanation for the reason that all such absorbed officers/employees were admittedly in service by virtue of the deeming clause in Section 6 (1) of the Repeal Act and providing continuity of services to such officers/employees with effect from 02.09.2008 can unambiguously mean absence of intermission in their services recognizing only the transition of such services from the Board/Committee/Samiti to the State Government.

¶213

The concept of absorption has also been explained

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recently by the Apex Court in Panchraj Tiwari Vs. M.P.S.E.B, (2014) 5 SCC 101. In that case, the issue of complete denial of promotion forever in the integrated service, after absorptions of the employees with protected rank and pay scale, came up for determination. Their lordships have held as follows:-

¶217

“4. The principles of absorption as extracted above would clearly show that the employees of the society have been taken over and absorbed in M.P.SEB. However, their pay scale on the date of absorption was protected, their designation was maintained as it was in the society at the time of absorption and the age of superannuation, pension and gratuity of such employees were to be governed by the rules/byelaws of the society concerned.

¶218

Though it may appear that there are some conditions which are normally not found in the principles of integration, the fact remains that the employees of the erstwhile Society which merged with M.P.SEB, have been absorbed in the service of M.P.SEB.

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Integration/merger of services means creation

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of homogenous service by the merger of service personnel belonging to different services:

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6.1. Though it is difficult to have a perfect coalescence of the services on such merger, the principle of equivalence is to be followed while absorbing the employees, to the extent possible. 6.3. Once a service is merged with another service, the merged service gets its birth in the integrated service and loses its original identity. There cannot be a situation, where even after merger, absorption or integration, such services which were merged or absorbed, still retain their original status. If so, it is not an absorption or merger or integration, it will only be a working arrangement without any functional integration…..”

¶224

In view of the aforesaid principles as laid down by the

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Apex Court, it is difficult to visualize the situation, particularly in view of the provisions of Section 6 of the Repeal Act, treating the absorptions of the officers/employees of the erstwhile Board/Committee/Samiti in different government services as fresh appointment to be effective from the date of absorption. This

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interpretation would be in complete antithesis to the concept of coalescence and fusion which according to the well settled principles, in the present context, the term „absorption‟ connotes. This Court, therefore, holds that the condition stipulating that the absorption in different government services of the officers/employees of the erstwhile Board/Committee/Samiti shall be treated as fresh appointment, as contained in the resolution dated 02.09.2008 and follow up resolutions/notifications of different dates with regard to the respective writ petitioners, is not legally sustainable. The said condition in the resolution dated 02.09.2008 and follow up revised resolutions/notifications with regard to the respective writ petitioners is accordingly quashed and the writ petitioners are held to be entitled to the continuity of their services. It is further directed that this order shall apply to all similarly situated officers/employees of the erstwhile Board/Committee/Samiti, as the case may be, and they are not required to approach this Court individually for the same relief.

¶229

The benefits of the antecedent service accruing to the officers/employees of the Board/Committee/Samiti in question has also been recognized by this Court in the batch of writ applications (C.W.J.C. No. 9798 of 2008 and analogous cases). By judgment and order dated 13.05.2014, this Court, after overturning the decision of

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the State Government rejecting the proposal to grant benefits of A.C.P. scheme to the officers/employees of the Board/Committee/Samiti, has held that the officers/employees of the Board/Committee/Samiti would be entitled to the benefit of A.C.P. scheme and all consequential benefits including arrears of pay and allowances as well as revision of their pensionary benefits, if any and arrears arising thereof.

¶233

However, in the present writ applications, the further relief has also been prayed for fixation of the seniority of the officers/employees in their respective cadres of services where they have been merged. It is the contention on behalf of the petitioners that after the absorption/integration of their services in the different class (s) of services under the State Government, they are entitled to be ranked therein according to their seniority.

¶234

The issue of seniority in the merged cadre after absorption has a tangential reference by this Court in Priya Ranjan Sharma Vs. The State of Bihar 2010 (2) PLJR 387 . In that case, the claim of the petitioner, who was an employee of the Bihar State Road Transport Corporation and was appointed in the service of the State Government by way of absorption, was for computing the period of service, rendered by him in the Corporation for grant of second time bound promotion and for the purpose of computing

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pensionable service. After holding that the order of appointment of the petitioner was by way of absorption and not appointment simpliciter, the petitioner was found entitled for computation of the period of his service in the Corporation for grant of time bound promotion. The Court, however, after taking into notice the decision by the Apex Court in the case of Dwijen Chandra Sarkar Vs. Union of India (1999) 2 SCC 119 has also observed that “in view of the said decision the issue of seniority of persons absorbed in the new department was rightly not pressed into service on behalf of the petitioners”.

¶238

This issue of fixation of seniority after absorption, however, has been directly cogitated upon by the Apex Court in Panchraj Tiwari (supra) and it has been ruled as follows:-

¶239

“6.2. Though integration of services thus postulates equation of posts, it is not invariably necessary to prepare the seniority list on the basis of the pay drawn by the incumbent in the equated category. It is always open to the authority concerned to adopt a just and the equitable principle for fixation of seniority. 12. As held by this Court in R.S. Makashi Vs. I.M. Menon [(1982) 1 SCC 379], the courts

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will not interfere with the decision and principles of integration unless it is shown that they are arbitrary, unreasonable or unfair. No doubt, there is no vested right for an employee to have a particular position in the integrated or merged service. On equitable considerations, it is always open to the authorities concerned to lay down the principles with regard to the fixation of seniority as held by this Court in S.S.Bola vs. B.D. Sardana [(1997) 8 SCC 522] and Prafulla Kumar Das vs. State of Orissa [(2003) 11 SCC 614]. However, in the instant case, equivalence has been decided since designation and pay scale was protected. What remains is only the seniority. 13. It is open to the authority concerned to lay down equitable principles with regard to fixation of seniority in the merged cadre. Once a service gets merged with another service, the employee concerned has a right to get positioned appropriately in the merged service.

¶243

That is the plain meaning of

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“absorption”…….”

¶247

Following the aforesaid dictum, this Court, in the fitness of things, directs the respondents/authority to lay down equitable principles with regard to fixation of seniority of the petitioners and other similarly absorbed officers /employees of the Board/Committee/Samiti in their respective merged cadres. It is expected that the decision in this regard shall be taken by the concerned respondent authorities expeditiously and preferably within a period of three months from the date of receipt/production of this order.

¶248

The next issue for consideration is the claim of the writ petitioners against the condition in the resolutions/notification restricting them to the benefits of the new pension scheme. From the perusal of the said condition as contained in the resolution dated 02.09.2008 as well as in the follow up resolutions/notifications, it is apparent that the coverage of the new pension scheme has been provided to the officers/employees in sequel to the condition whereby their services after absorption has been treated as fresh appointment. It has already been held earlier that in the facts and circumstances of the case, the condition treating the absorption of the petitioners and similarly situated officers/employees of the Board/Committee/Samiti as fresh appointment is not legally

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sustainable and the absorptions in the services of the petitioners cannot be taken as fresh appointment to be effective from the date of absorption. As such, the decision to provide the availability of the new pension scheme to the absorbed officers/employees taking their absorption as fresh appointments has apparently lost its basis. This view has also been taken by this Court in M.J.C. No. 1682 of 2012 ( contempt) ( a copy of which has been annexed as Annexure -13 in C.W.J.C. No. 21887 of 2012) in the order dated 04.02.2013, where,

¶252

after taking into notice of the judgment and order dated 22.03.2010 passed in L.P.A. No. 29 of 2010, this Court has held as

¶253

follows:-

¶254

“…….On the other hand, learned counsel for the petitioner draws attention of this Court to the judgment and order dated 22.03.2010 passed in L.P.A. No. 29 of 2010 at the instance of the State arising from the judgment of this Court itself in the case of petitioner wherein the Division Bench observed thus:-

¶255

“….Only course open was to absorb the petitioner, as admittedly he was an employee of the Board at the time of coming into existence of the Repeal Act…..”

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In my view, the Division Bench having clearly in an inter-party contest held that the petitioner had to be absorbed, it only means that petitioner‟s services would be continued. That is the essence of Section 6 of the Repealing Act itself. Thus, the inter-party order has to be implemented, consequently the letter showing petitioner as fresh appointee and liable to be covered under the new pension scheme cannot be sustained……”

¶259

In addition, it is also the case of the writ petitioners that by three enactments of the year 2007, containing identical provisions, the Bihar Intermediate Council, Bihar Inter University Board and the Bihar University (Constituent College) Service Commission were dissolved and their officers/employees after adjustment in services under the State Government have been granted the benefit of the old pension scheme. The averments made in this regard in the writ applications have not been denied by the respondents. However, on behalf of the respondents, it has been contended that the officers/employees of the Board/Committee/Samiti were not holding pensionable posts before their absorption and they have been paid the amount of their

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contributory provident fund (CPF), gratuity and leave encashment etc. This fact has, however, been denied by the writ petitioners. This Court is not inclined to enter into this controversy, and after overall consideration of the facts and circumstances, this Court directs the respondent/authority to reconsider the condition restricting the absorbed officer/employee to the new pension scheme, as contained in the resolution/notifications dated 02.09.2008 and follow up resolution/notifications, in accordance with law keeping in view the abovementioned facts and discussions. Such reconsideration must be bestowed by the respondent/authority expeditiously and preferably within a period of three months from the date of receipt/production of this order.

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These writ applications are, accordingly, allowed with the aforesaid directions. In the facts and circumstances of the case there shall however be no order as to costs.

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(V. Nath, J)

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Devendra/-

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Ram Yash Sah and Ors. v. the State of Bihar and Ors.

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Ram Yash Sah and Ors. v. the State of Bihar and Ors.

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