Dismissed

Jawahar Lal Ram and Ors. v. State Of Bihar and Ors.

Patna HC17 Feb 2020CWJC/22943/2018

Case brief

AI extract

What is this about?

Petitioners, engaged on ad-hoc and contractual working arrangement in the computer section of the erstwhile Bihar Intermediate Education Council, challenged termination and rejection of their claim for absorption in the Bihar School Examination Board. The court held they are not 'employees' under the Repeal Act or the absorption scheme and dismissed the writ petition.

What did the court decide?

Petition dismissed; if the Board recruits against the posts the petitioners held and they apply, maximum age relaxation and consideration of their experience, subject to their satisfying other conditi

Jawahar Lal Ram and Ors. Vs State Of Bihar and Ors. — Service and Employment | Patna HC (2020)

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THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22943 of 2018

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Jawahar Lal Ram, S/o Sri Hiral Lal Ram, Resident of- B/108, Shakuntala Niwas, A.G. Colony, Near J.P. Nagar, District- Patna.

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Shiv Chandra Manjhi, S/o Sri Rambriksha Manjhi, Resident of VillageTineri, P.O.- Nadaul, P.S.- Masaurhi, District- Patna- 804454.

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Chote Lal Das, S/o Sri Chulhai Das, Resident of P.O.- Digha Baghicha, Rajiv Nagar, Road No.21, District- Patna.

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Kedar Kumbhkar, S/o Sri Rahin Kumbhkar, Resident of Jorsa, Jorsya, District- East Singhbhum, Jharkhand- 832105.

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Piyush Roy, S/o Sri D.N. Roy, Resident of 2H-91, Bahadurpur, Housing Colony, PS- Agamkuan, P.O.- Bahadurpur, District- Patna- 800016.

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Md Shakil Ahmad, S/o Md Jalil Uddin, Resident of Village- Babhangama, Paithan Tola, Via- Bihpur, Dist- Bhagalpur- 853201.

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Md. Ekramul Haque, S/o Abdul Manan, Resident of Village- Mahuawa, At + P.O.- Mahuawa, Via- Pirpahi Bazar, District- Sheohar.

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Chitrasen Kumar, S/o Sri Arjun Ram, Resident of C/o C. Kumar, Flat No.306, Pratap Palace, Krishnagar (A.G. Colony), P.O.- Ashiana Nagar, P.S.Shashtri Nagar, District- Patna- 800025.

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Rohit Kumar Jha, S/o Sri Sidhinath Jha, Resident of Shivpuri Near Abhay Carbon Factory, PO- Shastri Nagar, District- Patna- 800023.

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Pranay Kumar, S/o Late Ramshihasan Singh, Resident of Village- Haibat Pur, Thana- Ram Pur Chouram, Dist- Arwal.

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Rambha Kumari, D/o Sri Badri Prasad, Resident of C/o Uma Singh, Salimpur Ahra, Daldali Road, Bakerganj, PO- Kadamkuan, District- Patna800003.

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Tanweer Hassan, S/o Late Kamal Hasan, Resident of Village- Bibipur, PSKako, Dist- Jehanabad- 804418.

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Pushpa Kumari, D/o Sri Sanjay Kumar, Resident of C/o Rajeshwar Pd. Sharma, Behind Gita High School, Chitragupt Nagar, Kankarbagh, DistrictPatna.

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Saket Ranjan, S/o Late Yogendra Prasad Yadav, Resident of C/o Ram Sakal Ray, Vill- Magardahi, Ward No.29, P.O.P.S.Dist- Samastipur- 848101.

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Bashisht Choudhary, S/o Sri Deoraj Choudhary, Resident of VillageHathounge, P.O.- Hasua, P.S.- Nawtan, District- Siwan- 841436.

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Md. Nooruddin, S/o Md. Shakir Hussain, Resident of House No.- 124, Road

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No.09, Sector-2, Haroon Nagar Colony, Phulwari Sharif, District- Patna801505.

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Kaushal Kumar, S/o Sri Kedar Nath Yadav, Resident of H.No.- Na15/9, New Alkapuri, P.S.- Gardanibagh, PO- Anisabad, District- Patna- 800002.

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Md Ashraf Alam, S/o Late Md. Tauhid Khan, Resident of A/62, Apna Gharana Colony, Sajjad Nagar, POPS- Phulwarisharif, District- Patna801505.

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Md. Naushad Anjum, S/o Md. Nisarul Haque, Resident of Village+PODhamsain, Via- Kurso Nadiyami, PS- Alinagar, District- Darbhanga847405.

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Md. Naushad Alam, S/o Md. Ehteshamuddin Ansari, Resident of Gate No.35, Mainpura, PO- GPO, PS- Patliputra, District- Patna- 800001.

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Jay Kumar, S/o Sri Ram Babu Swarnkar, Resident of Noorani Bagh Colony No.-B, PO- Gulzarbagh, District- Patna- 800007.

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Prem Kumar, S/o Late Rambalak Singh, Resident of C/o R.P. Singh, Parmeshwar Singh Lane, W. Lohanipur, Kadam Kuan, District- Patna800003.

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Md. Manzar Nomani, S/o Md Abdu Azij, Resident of Village- Dhamsain, Via- K. Nadiyami, PS- Alinagar, Dist- Darbhanga- 847405.

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Parwez Alam, S/o Md. Qumruddin, Resident of Alam Ganj Main Road, Opp.- Dalal Ji Ki Masjid, District- Patna- 800007.

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Santosh Kumar, S/o Sri Ram Chandra Roy, Resident of C/o Dinesh Roy, Sai Bhawan Gautam Nagar, Near S.K. Kunj, P.O.- GPO, PS- Gardanibagh, District- Patna- 800001.

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Anil Kumar, S/o Sri Ram Bilash Ray, Resident of Village- Birsingh Pur, Mahamdabad, P.O.- Basudeopur, PS- Kalyanpur, District- Samastipur848102.

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Rajesh Ravidas, S/o Sri Jitan Ravidas, Resident of Village- Juniar, VayaEkangar Sarai, District- Nalanda- 801301.

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Deepak Kumar, S/o Late Naresh Roy, Resident of Dhirachak, PO- Anisabad, PS- Gardanibagh, Dist- Patna- 800002.

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Purushottam Kumar, S/o Sri Kapil Dev Prasad, Resident of Purani Gudhri, Uttarwari Pokhra, Bettiah, PO- Bettiah, PS- Town Thana, District- West Champaran- 845438.

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Dhananjay Kumar, S/o Sri Sureshwar Prasad Sharma, Resident of Village-

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Tineri, PO- Nadaul, PS- Masaurhi, Dist- Patna- 804454.

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Md. Mazhar Nomani, S/o Md. Quamrul Hoda, Resident of Aunsi, Naya Tola, PO- Aunsi, Babhangawan, PS- Bisfi, District- Madhubani.

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Bharath Sharma, S/o Sri Bhushan Sharma, Resident of Birla Colony, Near A-95, Rastriya Ganj Phulwari Sharif, District- Patna.

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Nasimul Haque, S/o Md. Zainul Haque, Resident of Village- Dhamsain, PSAlinagar, Via- K Nadiyami, Dist- Darbhanga- 847405.

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Md. Iqbal, S/o Md. Salahuddin, Resident of Alamganj, Peerwais (Imambada), Gulzarbagh, District- Patna- 800007.

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Rajeev Kumar Roy, S/o Sri Ramchandra Ray, Resident of BPCL 70 Feet Road, Near Radha Krishna Mandir, Vishanpur Pakri, P.S.- Beur, P.O.Anisabad, District- Patna- 800002.

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Deepak Kumar II, S/o Sri Devki Ram, Resident of 4/A, Shakuntala Garden Apartment, P.O.+P.S.- Shashtrinagar, Punaichak, Dist- Patna- 800023.

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Arbind Kumar, S/o Sri Raj Bihari Rai, Resident of Rajendra Nagar, Road No.- 10E, Flat No.-JF3/24, Block-4, P.O.- Rajendra Nagar, PS.- Kadamkuan, District- Patna- 800016.

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Shyam Kishor Gosain, S/o Sri Raghunath Gosain, Resident of VillageSingrahiya, Bhutahi, District- Sitamarhi- 843317.

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Prem Sagar, S/o Late Narmadeshwar Pd. Singh, Resident of VillageGonawan, PS- Harnaut, Dist- Nalanda.

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Md. Nasimullah, S/o Md. Shahjahan, Resident of 724, Mohammad House, Petrol Pipe Line, ISA Nagar, P.O.+P.S.- Phulwari Sharif, District- Patna801505.

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Shankar Prasad, S/o Sri Sharda Nand Paswan, Resident of Bhadra Ghat, Idgah Road, Gulzar Bagh, District- Patna- 800007.

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Sayed Firoz Karim, S/o Late Syed Ata Karim, Resident of Road No.- A/3, Alinagar Colony, Anisabad, District- Patna- 800002.

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Shiva Shankar Roy, S/o Sri Ram Narayan Roy, Resident of VillageBirsinghpur (Mahamadabad), P.O.- Basudeopur, PS- Kalyanpur, DistrictSamastipur- 848102.

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Md. Tauqueer Alam, S/o Md. Muhiuddin, Resident of Village- K. Nadiyamy Dhamsain, P.S.- Alinagar, District- Darbhanga- 847405.

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Md. Shamiullah, S/o Md. Abulaish, Resident of Village- Garahiya, PS+DistSheohar.

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Rabindra Kumar, S/o Sri Sureshwar Prasad Sharma, Resident of Village-

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Tineri, PO- Nadaul, PS- Masaurhi, Dist- Patna- 804454.

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Pradeep Kumar Roy, S/o Sri Ramchandra Ray, Resident of BPCL 70 Feet Road, Near Radha Krishna Mandir, Vishanpur Pakri, P.S.- Beur, P.O.Anisabad, District- Patna- 800002.

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Mrityunjay Kumar, S/o Sri Awadhesh Prasad Singh, Resident of Koil Kothi, Lane No.3, Chandmari Road, PO- Lohiyanagar, PS- Kankarbagh, DistrictPatna- 800020.

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Md. Shoaib Alam, S/o Md Yunus, Resident of Village + PO.- Dhamsain, Via- Kurso Nadiyami, P.S.- Alinagar, District- Darbhanga- 847505.

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Md. Jamshed Alam, Son of Md. Jilani, Resident of Village+P.O.- Dhamsain, Via- Kurso Nadiyami, P.S.- Alinagar, District- Darbhanga- 847505.

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Vijay Shankar Murari, Son of Jawahar Lal Bekas, Resident of 301 Keshav Savita Apartment, Jhunjhun Mahal Road, New Yarpur, P.S.- Gardanibagh, District- Patna.

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Ghulam Rasool Ansari, Son of Md. Khursheed Ansari, Resident of Mehsaul Chowk, Khilafat Chowk, Dumra Road, District- Sitamarhi.

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Sudhir Pal, Son of Ram Swarth Pal, Resident of Krishna Niketan Girls School, Jakariha Bari Pahari, P.S.- Ram Krishna Nagar, District- Patna.

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... ... Petitioners

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Versus

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State of Bihar through the Principal Secretary, Education Department, Government of Bihar, Patna.

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Principal Secretary, Education Department, Government of Bihar, Patna.

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Joint Secretary, Education Department, Government of Bihar, Patna.

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Deputy Secretary, Education Department, Government of Bihar, Patna.

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Director, Secondary Education, Education Department, Government of Bihar, Patna.

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Bihar School Examination Board, Budha Marg, Patna through its Chairman.

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Chairman, Bihar School Examination Board, Budha Marg, Patna.

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Secretary, Bihar School Examination Board, Budha Marg, Patna.

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... ... Respondents

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====================================================== Appearance : For the Petitioner/s : Mr. Chitranjan Sinha, Senior Advocate Mr. Siddhartha Prasad, Advocate Mrs. Surya Nilambari, Advocate Mr. Om Prakash Kumar, Advocate

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Mr. Sunil Kumar, Advocate For the B.S.E.B. : Mr. Satyabir Bharti, Advocate For the State. : Mr. Ashutosh Ranjan Pandey, AAG-15 Mr. Amarendra Kumar, A.C. to A.A.G.-15

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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY C.A.V. JUDGMENT

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Date : 17-02-2020

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Heard learned counsel for the petitioners, learned counsel for the State as well as learned counsel for the Bihar School Examination Board.

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2. In this case, the petitioners are challenging the order dated 18.08.2017 issued by the Secretary, Bihar School Examination Board, whereby and whereunder the services of these petitioners have been terminated after giving one month’s pay. Further prayer has been made to quash the order dated 09.10.2018 issued by the Joint Secretary, Education Department, Government of Bihar, whereby and whereunder prayer of the petitioners for regularization of their services in the Bihar School Examination Board pursuant to the order passed by this Court in C.W.J.C. No. 12242 of 2017 has been rejected and further prayer has been made to absorb/regularize the services of the petitioners in the Bihar School Examination Board. Further prayer has been made that after quashing the impugned orders, directions may be given to the respondents to give the benefit of continuity of service as well as other consequential benefits

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including the salary of the period during which the services of the petitioners have illegally been terminated.

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3 . The facts of this case are that the Bihar Intermediate Education Council had gone for computerization and in pursuance thereof, N.I.C.T. Computering System Private Limited was engaged for computerization work on contract basis. The petitioners were sent for the computerization work by the said firm and they continued to work for the Bihar Intermediate Education Council from 1999 to 2005. The Council had approached the Government to create different posts in the Computer Section of the Intermediate Council and in pursuance thereof, the Government vide letter no.79 dated 11.02.2005 (Annexure-1 to this writ petition) sanctioned altogether 63 posts of different grades. As the N.I.C.T. was demanding the amount in higher side and the Bihar Intermediate Education Council was not in a position to pay such a heavy amount, had decided to terminate the agreement with the N.I.C.T. but, the petitioners, who were in total 55 in number, vide letter no. BIEC/82/SC/05 dated 14.05.2005 (Annexure-2 to this writ petition) were appointed under different posts against 63 sanctioned posts by the Chairman of the Bihar Intermediate Education Council but, in the said letter it has been mentioned

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that this working arrangement will continue to operate till proper selection is made.

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4 . The Government decided to amalgamate the Bihar School Examination Board and the Bihar Intermediate Education Council. Under this Policy decision, the Bihar Intermediate Education Council (Repeal) Act, 2007, was enacted by the State of Bihar. In terms of Section 4 of the aforesaid Repeal Act, 2007, all the assets and liabilities of the Bihar Intermediate Education Council have been shifted/transferred to the Bihar School Examination Board. In terms of Section 3 of the Repeal Act, 2007, the Government constituted a Three Men Committee to formulate the scheme for regularization of services of the employees who were working in the Bihar Intermediate Education Council and in pursuance thereof, the Three Mean Committee submitted its report, which was accepted and the Government issued a Resolution dated 12.07.2012 (Annexure-4 to this writ petition), framed the scheme for different level of the employees for their absorption -cum- regularization in service in the Bihar School Examination Board. In terms of the said scheme, the petitioners were expecting their regularization -cum- absorption in the Bihar School Examination Board. At the same time, the Government

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created a Five Men Committee to identify the employees of the Bihar Intermediate Education Council and take a decision for their absorption in terms of the scheme. The said Five Men Committee considered the cases of different level of employees including the present petitioners, but the Five Men Committee did not recommend regularization -cum- absorption of the services of these petitioners basically on the ground that they have entered into the services by way of an ad-hoc arrangement without any advertisement and without facing any test of selection.

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5 . In pursuance of the recommendation of the Five Men Committee, the services of the petitioners and others have been terminated by giving one month’s salary, which the petitioners have challenged in C.W.J.C. No. 12242 of 2017. This Court vide order dated 18.05.2018 quashed the order of termination and remanded the matter for fresh consideration. The operative portion of the order is as follows:-

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“Considering the facts and respective contentions of the parties as referred above, this writ application is disposed of with a direction to the State Government to take an appropriate decision in accordance with law in the matter of absorption of the services of the petitioners within a period of six months from the date of

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production/receipt of copy of this order, keeping in mind that the petitioners herein being engaged against the sanctioned posts and by the order of the then competent authority i.e. the Chairman of the Intermediate Council and they have also continued in service more than 12 years”.

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6. In light of the order passed by this Court, the petitioners filed a joint representation for consideration of their cases for absorption in the services. Accordingly, the cases of these petitioners have been considered at the level of the Joint Secretary of the Education Department, who vide order contained in memo no. 544 dated 09.10.2018 (Annexure-20 to this writ petition) rejected the claim of the petitioners for regularization in service. In the operative portion of the order, it has been stated that the appointment of these petitioners are against the provisions of well settled law as they have been appointed without any advertisement, without following the reservation roster but, they were appointed by the competent person by way of an ad-hoc arrangement. As the Computer Cell is a technical section, without fixing the requisite qualification for each post they were appointed on ad-hoc basis after the dissolution of Bihar Intermediate Education Council and also said that in terms of the judgment of the State of Karnataka vs.

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Uma Devi (2006 (4) SCC 1) , they do not qualify for regularization in service as they do not fulfill the conditions as envisaged in the said judgment, which is under challenge in this writ petition.

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7 . Learned counsel for the petitioners submits that in terms of the scheme of the Bihar Intermediate Education Council, their cases should be considered in terms of Clause2(ii) as the said Clause itself stipulates that those who are not covered under Clause-2(i), their cases would be considered in terms of Clause-2(ii), which stipulates that whether the person has been appointed by the competent authority, second whether the appointment has been made against the sanctioned post, third whether they possess the minimum qualification and fourth whether they do possess the qualification of 10 years’ of service. It has been submitted that these petitioners qualify all the conditions except the condition of advertisement is not fulfilled but, rest all the processes have been followed, as qualification of each of the employees were considered and after following the roster point for reservation, the petitioners have been appointed, inasmuch as, they have worked for years together. It has further been submitted that after the merger, the scale of pay of the Bihar School Examination Board was given to these petitioners

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as well as 50% Dearness allowance was also given to them.

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8. Learned counsel for the petitioners has drawn the attention of this Court to Annexure-8 to show that the petitioners were granted the benefit of 6^th Pay Revision Commission report. It has further been stated that all the times their pay and packages have moved forward as like the employee of the Bihar School Examination Board and vide order dated 24.02.2001 issued by the Secretary, Bihar School Examination Board, the petitioners were also granted the Casual Leave and other benefits attached with the retirement. It has further been submitted that in a similarly type of case, those who were engaged on daily wages basis, have been regularized in service by the Bihar School Examination Board on account of order passed by the Hon’ble Supreme Court in Contempt Petition (C) No. 1285 of 2018 in Civil Appeal No.1868 of 2018 (Mukesh Kumar and Ors. vs. R.K Mahajan and Ors.). It has further been submitted that this group of persons were working in the Bihar School Examination Board on daily wage basis and the Hon’ble Supreme Court has taken into consideration the period of service of 23 years and to put the matter at rest, the direction was given for regularization. The Hon’ble Supreme Court, in exercise of power under Article 142 of the Constitution of India,

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has given direction of regularization, however, this Court does not have the power and jurisdiction of Article 142 of the Constitution of India to pass such order, but in case when other similarly situated persons have been absorbed, identical relief should be granted to these petitioners.

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9 . Learned counsel for the Bihar School Examination Board has argued that in the entire scheme, it has been classified for regularization and the absorption only to those persons, who were working on regular basis, not any single person, who was appointed on ad-hoc basis or daily wage basis, has been regularized by the Bihar School Examination Board. It has further been submitted that Sub clause (i) and (ii) of Clause-2 is only meant for those persons who were working in the Bihar Intermediate Education Council as a regular employee. As the word has been used as “Samanjan” that means the absorption and employees have been categorized in two classes; first those who were appointed by a competent authority after proper advertisement, following the reservation policy and having fulfilled the requisite qualification against the sanctioned post and those regularly appointed employees, who do not fall under first category, in that circumstance, the test has been provided for second category person, in which four conditions have been

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mentioned and if the employees satisfy those conditions, will be absorbed in service.

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10. It has further been submitted that sub-clause (vii) of Clause-2 itself speaks that those who have been appointed on ad-hoc basis and to whom the appointment letter has not been given, but they are getting the scale of pay and Dearness allowance or the daily wagers or appointed on contract basis, their services will be terminated after giving one month’s notice. Further placed reliance on Clause- 3 (ii) and (iii), wherein it has been provided that those who have been appointed on daily wage basis or on contract basis, their services will be terminated after giving one month’s notice. Clause- 3(ii) itself says that absorption will be made corresponding to same pay scale and if the corresponding pay scale is not available, in that circumstance, the person will be absorbed in the just below scale of pay of the said post. It has further been submitted that admittedly the entry of the petitioners is a back door entry, as no advertisement was issued, no selection process has been followed, but because they were appointed and were working on contract basis earlier under the said firm, later on, petitioners were appointed, cannot claim their absorption in the service of the Bihar School Examination Board as their entry itself is

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marked with illegality and cannot be treated to be a proper entry. It has further been argued that in terms of the scheme, the petitioners do not fall under the category of employee of the Board and in support of the submission, he has placed reliance on judgment rendered in the case of Nand Kumar vs. State of Bihar & Ors. reported in 2010 (1) PLJR 763 , in which the issue with respect to daily wage employees working in the Agricultural Produce Market was under consideration as to whether they would come under the definition of employee and this Court, in Division Bench, has refused to grant the relief to them having held that they do not fall under the definition of employee under the Bihar Agricultural Repeal Act and the scheme framed thereunder. The matter was tested before the Hon’ble Supreme Court and the same was reported in ( 2 014) 5 SCC 300 (Nand Kumar v. State of Bihar & Ors.) and placed reliance on paragraph nos. 21 and 25 of the said judgment. He has also placed reliance on the judgment of this Court reported in 2016(3) PLJR 506 (The Bihar School Examination Board and Ors. vs. Anuj Kumar Singh and Ors.), para 3 and 4, wherein this Court has held, when the entry itself is bad, the person cannot be brought to the services of the Bihar School Examination Board.

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11 . It has further been stated that Five Men Committee has elaborately considered the case of the petitioners and found that their entry is not in terms of the law, placed reliance on the decision of the Hon’ble Supreme Court rendered in the case of Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors., reported in 2006 (4) SCC 1 , more particularly paragraph nos.38 to 45 and 47 and submitted that this judgment itself speaks that when the entry itself is bad, the person cannot be regularized in service. Further placed reliance on the Full Bench decision of this Court rendered in the case of Ram Sevak Yadav vs. The State of Bihar & Ors., reported in 2013(1) PLJR 964 , paragraph nos. 16 to 19, 33 and 43, and also placed reliance on the judgment passed by me in C.W.J.C. No. 5899 of 2011 (Deo Kant Choudhary and Ors. vs. the State of Bihar and Ors.), paragraph nos. 14, 19, 21, to 27 and 30.

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12. Learned counsel for the Bihar School Examination Board further submits that even the Repeal Act, 2007, does not envisage any scheme for regularization of service, but only talks about the absorption of service of regular employees on their screening. It has further been submitted that on the date of termination, the petitioners have only completed two years’ of service on the appointed date, so they do not satisfy the test of

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10 years of service as has been adumbrated in Uma Devi case (supra) .

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13 . By making the above submissions, learned counsel for the Bihar School Examination Board submits that it is not a fit case where these petitioners can claim either regularization or absorption in service as they are not employees of the Board and the scheme does not envisages any absorption save and except the absorption of regular employees.

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14. In reply, learned counsel for the petitioners submits that so far Clause- 2(i) and 2(ii) do not talk about only absorption of only regular employees but, it talks in larger manner, as it stipulates that an employee working in the Bihar Intermediate Education Council itself indicates that Scheme framed is inclusive in nature. It has further been submitted that when the word “employee” has not been defined, in that circumstance, in the common parlance whoever is working in the Bihar School Examination Board will be treated to be an employee of the Bihar Intermediate Education Council irrespective of nature of duty performed and they will be liable to be considered for their absorption in terms of Clause-2(ii) as the same itself speaks of four requisite conditions, out of that, one condition is missing in the case of petitioners that their entry

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is without an advertisement otherwise they do possess rest three conditions as mentioned in Clause-2(ii).

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15 . Learned counsel for the petitioners has tried to distinguish the judgment of Nand Kumar’s case as well as Deo Kant Choudhary’s case (supra) and submitted that the same do not apply in the present case. In that case, the petitioners were daily wage employees, their entry through the authority was not known as to whether they were appointed by a competent authority or by an incompetent authority or whether they were granted the same pay scale from time to time. It has further been argued that Nand Kumar’s case (supra) has been considered in the light of the fact that they were daily wage employees not adhoc employees and it is also not appearing that they were appointed against the sanctioned posts. It has further been submitted that estoppel would apply against the submission of the Board in view of the fact that this Court while considering the case of the petitioners, in the first round, has directed the respondent authorities for consideration of their cases looking to the service period rendered by them as they were appointed against the sanctioned posts by the competent authority and placed reliance on the judgments rendered in the case of Union Public Service Commission vs. Dr. Jamuna Kurup and Ors.

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reported in ( 2008) 11 S.C.C. 10, paragraph no.14, New India Assurance Company Limited vs. Abhilash Jewellery reported in ( 2009) 2 S.C.C. 661 and Bhinka and Others vs. Charan Singh reported in AIR 1959 S.C. 960.

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16. Learned counsel for the petitioners submits that the provisions of scheme of regularization in both the services are not the same, rather the scheme of regularization for Bihar Intermediate Education Council vis-a-vis the Bihar Agriculture Produce Market are different. In support of submissions, he has placed reliance the following judgments:-

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(i) Bhanu Kumar Jain vs. Archana Kumar and Another reported in AIR 2005 S.C. 626.

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(ii) Basudeo Prasad vs. The State of Bihar and Ors. reported in 2014(1) PLJR 400 .

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(iii) Karnataka State Road Transport Corporation, Bangalore and Ors. vs. Karnataka State Transport Authority,

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Bangalore and Ors. reported in AIR 1987 S.C 711.

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17 . Learned counsel for the petitioners further submits that cases of 10 persons, was under consideration before the

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Hon’ble Supreme Court in Mukesh Kumar and Ors. in Contempt Petition (C) No. 1285 of 2018 in Civil Appeal No.1868 of 2018, wherein the Scheme for regularization came for consideration, wherein it has been held that the scheme does apply to the daily wage employees, so the claim of the Board that it does not apply to the daily wagers employees or ad-hoc employee is completely misdirected and misconceived.

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18. Learned counsel for the Board submits that so far the regularization of 379 persons are concerned, the argument of the petitioners that they were also not appointed properly is completely incorrect rather, they were the regular employees. So far the claim of the petitioners that in the case of aforesaid ten persons i.e. Mukesh Kumar and Ors. the Supreme Court has held that the scheme is applicable to the daily wagers is also not correct. It has further been stated that none of the employees, who are claiming absorption, do not fall under Clause- 2(i) or 2(ii) of the scheme.

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19 . Before deciding the issue as to whether the petitioners were appointed as regular employees or their appointment is on ad-hoc basis subject to regular appointment on the aforesaid posts as prima facie the letter of appointment dated 14.05.2005 (Annexure-2 to this writ petition) itself

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making it very clear that their engagement was a working arrangement till the regular appointment is made against the aforesaid posts, then this letter itself is sufficient to show the nature of their appointment to the aforesaid posts. Other incidental issues have also been raised such as, the status of their appointment and whether the petitioners have acquired some rights for regularization in view of continuation of service along with the promotion and other benefits were granted to these petitioners.

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20 . For deciding these issues, it will be relevant to examine the judgments placed reliance by the parties, starting with the judgment of the Hon’ble Supreme Court rendered in the case of Union Public Service Commission vs. Dr. Jamuna Kurup and Others (supra). In that case, the matter was with respect to selection and appointment of employees engaged on contract basis in the Municipal Corporation of Delhi, in which the Municipal Corporation had sent a requisition to the U.P.S.C. for recruiting 45 Ayurvedic Vaids. As the process of selection by the U.P.S.C. was likely to take considerable time, the Corporation issued an advertisement dated 18.10.2000, inviting applications for contract appointment on a fixed salary of Rs.10,000/- for a period of six months, accordingly, the

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respondents were appointed. Later on, the U.P.S.C. initiated the process of appointment of 45 Ayurvedic Vaids. In the said advertisement, the barrier of 35 years of age was provided and there was a Clause of relaxation of age for employees of Municipal Corporation of Delhi up to five years for Scheduled Caste and Scheduled Tribes, and three years for the O.B.C. and age is also relaxable for employees of the Government of India and Union Territories upto five years. Writ Petition was filed by the respondents in Delhi High Court for regularization of their services in the vacant posts and alternative prayer was also made to grant them due weightage and also extend the benefit of age relaxation by five years to those who were more than 35 years and had worked on contract basis for three years. However, during the argument only the prayer was made that they should be granted the benefit of age relaxation and they should not be replaced by persons other than regular appointees. The prayer was allowed by the learned Single Judge, against that, the U.P.S.C approached the Hon’ble Supreme Court, wherein the plea was taken that age is relaxable for employees of Municipal Corporation of Delhi as per the terms of the advertisement. Submission was made that those who have been appointed on contract basis for a short term will not be the

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employees of the Municipal Corporation of Delhi, placed reliance on the judgment of the Hon’ble Supreme Court, wherein it has been held that the persons working on short term basis cannot claim the status of the Government servant, however, the Hon’ble Supreme Court rejected the claim of the U.P.S.C. and held that they are the employees for the purposes of granting the relaxation to those who are working on contract basis.

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21 . The above judgment has been pressed into service by the petitioners on the point that the petitioners were not daily wage employees rather, they were appointed on contract basis and the scheme covers the contract employees and the claim of the respondents that they do not fall under the heading of “employees” is per se illegal and tried to distinguish the judgment rendered in the case of Nand Kumar vs. The State of Bihar and Ors. (supra), wherein the Court has held that daily wagers cannot be the employees under the scheme framed by the High Level Committee constituted under the Bihar Agriculture Produce Market (Repeal) Act, 2006, wherein also after the obliteration of the Bihar Agriculture Marketing Board under the aforesaid Act, the Government has constituted a High Level Committee to frame a scheme for the purposes of

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absorption of those employees working in the Bihar Agriculture Produce Marketing Board. Accordingly, the Scheme was framed, wherein relevant Clause was provided that “the State Government shall constitute a committee of Secretaries consisting of three Secretaries who shall prepare detailed scheme of absorption, retirement, compulsory retirement or voluntary retirement, other service conditions of officers and employees of the Board and the Committee”. The said Committee dealt with scope and ambit of the word “employee”. Ultimately, the Court has held that daily wagers who are working in the Bihar Agriculture Marketing Committee or Bazar Samiti are employee under the Scheme. In the said judgment, the Court has also considered paragraph no.47 of the decision rendered in the case of Secretary, State of Karnataka and Others vs. Uma Devi (supra) , wherein it has been held that when a person entered into a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection process as recognized under the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an

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appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. So, altogether rejected the claim of the daily wage employees to be covered under the scheme of regularization.

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22 . Learned counsel for the Bihar School Examination Board has submitted that as the status of these petitioners is not better than the daily wage employees as they are also not coming under the heading of “employee” as heading of “employee” will consist only those who have been regularly appointed not those who have been appointed either on daily wage basis or contract basis or ad-hoc basis without following the procedure as enunciated by the law.

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23 . In Nand Kumar’s case (supra) , this Court as well as the Hon’ble Supreme Court has specifically held that those who are the daily wage employees will not be the employees for the purposes of their absorption in the Government service, as has been claimed by the petitioners that their cases are quite different to those daily wage employees and they have come after following the proper procedure and appointed against the sanctioned posts and were getting the scale of pay and time to time their pay scale has been revised. So, the present petitioners

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cannot be covered by the judgment of Nand Kumar’s case (supra).

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24 . Learned counsel for the Bihar School Examination Board has also placed reliance on the decision rendered in the case of Bihar School Examination Board vs. Anuj Kumar Singh (supra). That matter relates to regularization of daily wage employees working more than decades in the Bihar Intermediate Council, in which also persons were working for more than 20 years. This Court after placing reliance on the decision rendered in the case of Nand Kumar’s case (supra) has held that the provision of Scheme of absorption framed under the Bihar Agricultural Produce Market (Repeal) Act, 2006, is para materia to the Bihar Intermediate Education Council (Repeal) Act, 2007 and they are covered by those judgments and refused to grant the relief of regularization to those who are working for more than 20 years as daily wage employees.

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25 . It will be relevant to quote paragraph nos. 8 to 10 of the said judgment, which are as follows:-

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“ 8 . A bare reference to the two provisions would show that they are in pari materia, therefore, the judgment of the Supreme Court in the case of Nand Kumar (supra) would equally apply and daily

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wagers would not get the benefit of Section 3 of the Bihar Intermediate Education Council (Repeal) Act, 2007. On this ground alone, the appeal has to be allowed and the judgment and order of the learned Single Judge has to be set aside.

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9 . We may also notice that recently in a batch of Letters Patent Appeal, we have taken the same view being L.P.A. No. 1837 of 2007 and analogous appeals decided on 09. 05.2016.

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10 . But, in our view, the matter does not end here as Mr. Shahi for the writ petitionersrespondents herein submits that it would not be fair to throw the writ petitioners on the road after they had spent 15-20 years in the service. He draws attention of the Court to the letter of the Chairman of the Board which recognizes their experience and also recognizes the need for more hands and thus asking the Government to immediately sanction additional persons. From the aforesaid communication, it is very clear that the Council though had a very restricted number of sanctioned posts, in fact, to work effectively to conduct examinations was requiring much larger work force as all the duties and liabilities of the Council has now come and is vested in

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the Board in relation to Council. The same would be the case here and, therefore, the necessity of experienced employees like the writ petitionersrespondents. We, at this stage, cannot issue an appropriate direction except directing the State, which is a welfare State, to consider the case of the writ petitioners-respondents in light of the Government resolution as noticed above. This must be done in true earnest by the State Government at the earliest.”

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26 . In view of the position that provision of Repeal Act and the Scheme framed by the High Level Committee is identical, will be the same fate of daily wages as that of persons working in other organizations, but in the present case, emphasis has been given that the status of the present petitioners is quite different, so they cannot be compared to those who have been appointed as daily wagers. So the question, in the present case, would arise whether the petitioners can be compared and to be treated alike to the daily wage employees or their status is quite different. This issue will be considered at the later stage.

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27 . Before dealing with the aforesaid aspect of the matter, it will be relevant to examine the decision of the Full Bench of this Court rendered in the case of Ram Sevak Yadav

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vs. The State of Bihar and Ors. (supra), wherein the Court has dealt with the status of those who have entered through the back door method and the Court has held that those who have entered into the service through back door, they should be pushed out in the same manner alone. This judgment has considered all previous judgments of the Hon’ble Supreme Court as well as this Court and in paragraph no.43, which is the conclusion part of the judgment, has held as follows:-

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“ 43 . We therefore sum up our conclusions and answer the reference as follows :-

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(A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;

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B) An illegal appointment void abinitio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances.

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C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and

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the candidate possessed the eligibility qualifications for a regular appointment to the post.

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D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.”

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28. Learned counsel for the petitioners has cited the judgment of this Court rendered in the case of Basudeo Prasad vs. The State of Bihar and Ors. (supra). That was a case with respect to grant of back wages after reinstatement from dismissal, wherein the Court has held that the principle of ‘no work no pay’ will not be applicable in the event if the worker is ready to work and the employer prevented him to do the work but, if the employee chooses to remain away from the work for his own reasons although the work is offered to him, in such circumstances, he will be deprived of the salary for the past period. This Court further held that the order of dismissal was found illegal and unjustified, even the charges could not be understood. No show-cause was issued. Therefore, in such circumstances, in view of the principles as evident from the judgments, the petitioner is entitled to full back wages for the

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period aforesaid. However, in the present case, such issue is not involved as the petitioners are making prayer for regularization of service and the payment of salary, so the principle laid down in the aforesaid judgment does not apply in the present case.

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29 . Next judgment cited by learned counsel for the petitioners is Karnataka State Road Transport Corporation, Bangalor and Ors. vs. Karnataka State Transport Authority, Bangalore and Ors. (supra). In that case, issue was raised about variation of the conditions of the permit held by respondent nos.2 and 3 on the inter-State route. The question was raised whether the Transport Authority has power to grant variation of the conditions of the inter-State Stage Carriage Permits by increasing the number of trips operated, with or without the increase of the number of vehicles covered by the stage carriage permit, overlapping the notified routes of Kolar Pocket Scheme. The Hon’ble Supreme Court did not find any error in the action of the authority. However, in the present case, the issue is not the same as the present matter relates to regularization of service not modification of any permit or Scheme.

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30. Learned counsel for the petitioners also placed reliance on the judgment of Hon’ble Supreme Court in the case of Bhinka and Others vs. Charan Singh (supra), wherein the

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issue was with regard to genuineness of certified copy of the Khatiyan and the question was raised about the production of certified copy. The Hon’ble Supreme Court has held that under this Section, the Court is bound to draw the presumption of correctness and genuineness of the certified copy of a document, bears the signature of authorized officer, takes the colour of official character, which was claimed with respect to the said document. But such a presumption is permissible only if the certified copy is substantially in the form and executed in the manner provided under the law. The question was raised how much heading in Section facilitate and add in interpreting the statutory provisions, wherein the Court has held that it helps to resolve the real dispute. It cannot control the plain words of the statute but, it may help in explaining the ambiguous words.

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31 . It will be relevant to quote paragraph no.15 of the aforesaid judgment, which is as follows:-

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“ 15 . But the contention may be negatived on a broader basis. Can it be said that the possession by virtue of an order of a Magistrate under the provisions of S. 145 of the Code of Criminal Procedure is one in accordance with the provisions of the law for the time being in force? It appears to us that the words "possession in accordance with the law for the time

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being in force" in the context can only mean possession with title. The suit contemplated by the section is one by a landlord against a person who has no right to possession. The preceding sections, as we have already indicated, provided for evicting different categories of tenants on specified grounds. Section 180 provides for the eviction of a person who but for the eviction would become a hereditary tenant by efflux of the prescribed time. If there is any ambiguity - we find none - it is dispelled by the heading given to the section and also the description of the nature of the suit given in the Schedule. The heading reads thus:

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"Ejectment of person occupying land without Title ".

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"Maxwell On Interpretation of Statutes", 10^th Edn., gives the scope of the user of such a heading in the interpretation of a section thus, at p. 50:

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“The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words."

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If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt.

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Unless the person sought to be evicted has title or right to possession, it cannot be said that his possession is in accordance with the provisions of the law for the time being in force. If so, the appellants must establish that the order of the Magistrate issued under the provisions of S. 145 of the Code of Criminal Procedure conferred a title or a right to possession on them.”

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The aforesaid judgment has been pressed into service to impress upon the Court that the word “employee” has not been defined in the Scheme in general parlance, so the petitioners should be treated to be the employee under the scheme and they are entitled for the benefit of regularization.

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32 . Another judgment has been cited by learned counsel for the petitioner is Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others reported in AIR 1978 S.C. 851, on the principle that the reason mentioned in the order of rejection cannot be supplemented by way of an affidavit. The claim of the petitioners that they have completed 10 years service, is not the ground of termination of their services, so this new ground cannot be taken by the respondents, which is not permissible in law. It will be relevant to quote paragraph no.8 of the aforesaid judgment, which is as follows:-

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“ 8 . The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (A.I.R. 1952 S.C. 16) ( at p. 18):

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"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

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33 . However, in the present case, it has to be examined in the light of the Scheme whether the petitioners would make out a case about the relief under the Scheme because the scheme

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has been framed under the statutory provision, hence the same has statutory force. In the Scheme, it has specifically been provided, only those who do not qualify the conditions mentioned in Clause-2(i), their cases will be considered as per Clause-2(ii). So, Clause-2(ii) has been stipulated in consideration of Uma Devi’s case (supra), in which it has specifically been held that those who have worked for 10 years of service having not illegal appointment but, irregular appointment, will be considered for regularization in service. Admittedly, the petitioners do not fall in the category of Clause2(i), so for getting the relief they must satisfy the conditions mentioned in Clause 2(ii) of the Scheme.

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34 . Learned counsel for the petitioners further argued that the Committee did not recommend the names of these petitioners for absorption and the matter remained pending before the Government as to what is to be done to ad-hoc and daily wage employees not absorbed in the Board but, who are still working. The Government vide letter dated 18.07.2017 (Annexure-14 to the writ petition) directed the Board to take decision in terms of letter no. 413 dated 12.07.2012 and whereafter they have been terminated from the service.

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35 . Learned counsel for the petitioners further submits

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that 10 years of service should be considered on the date when the cases of these petitioners was considered, by that time, they have completed 10 years of service and as such, treating them otherwise is completely misdirected and illegal consideration. Reliance has been placed on the decision rendered in the case of State of Tamil Nadu vs. M/s. Hind Stone and Others reported in (1981) 2 S.C.C. 205. That was a case with regard to renewal of lease and the Hon’ble Supreme Court has held that renewal is not to be obtained automatically for the mere asking. The application for the renewal of lease will have to satisfy the Government that the renewal of lease is in the interest of mineral development and that the lease amount is reasonable in the circumstances of the case. It has further been held that applications should be dealt with within a reasonable time, it cannot, on that account, be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to grant or renewal of lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In absence of any vested

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right, an application for lease has to be dealt with according to the Rule in force on the date of the disposal of the application despite the long delay in making of application. However, in the present case, such issue is not involved of renewal of lease but, most probably this judgment has been placed on the point that on the date when the cases of these petitioners were considered, they have completed 10 years of service, but this Court will have to see what is the formulation of the words mentioned in the Scheme because their cases would be considered in terms of the provisions embodied in the Scheme and they have to live or die under that Scheme itself. So the aforesaid judgment is not very much helpful to the petitioners in support of their claim.

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36 . Another judgment has been cited by learned counsel for the petitioners is New India Assurance Company Limited vs. Abhilash Jewellery (supra) . In that case the situation was quite different that the respondent has taken the Insurance of Jewellery’s Block Policy for Rs.1,15,00,000/- and during the currency of the Policy, claim was made for the loss of gold ornaments weighing 787.870 grams. The claim was repudiated by the appellant Insurance Company on the ground that loss of gold was occasioned as it was in the custody of an apprentice, who was not an employee. The Hon’ble Supreme

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Court has invoked the definition of the word “employee” provided under the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act and held that in various enactments, the word “employee” has been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word “employee” has been extended but, the Court has held that does not mean that in common parlance an apprentice is an employee as the word “employee” has not been defined in the contract or insurance, the Court has proceeded with the meaning of an employee in common parlance and held that even if he was being paid stipend by his employer, that does not mean that there is a relationship of master and servant between the firm and the apprentice. So this judgment does not help the petitioners in any manner.

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37 . It will be relevant to quote paragraph nos. 6 to 9 of the aforesaid judgment, which is as follows:-

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6 . In various enactments, the word “employee”, has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word 'employee' has been extended.

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7 . Legal fictions are well known in law. For

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example, Section 43 (3) of the Income Tax Act defines “plant” to include a book. Ordinarily a plant means a factory, and by no stretch of imagination can we call a factory a book. However, the Income Tax Act deems a book to be a plant for the purpose of depreciation.

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8 . Many such illustrations of deeming clauses or legal fictions can be given. The definition of “employee” in various enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. That, however, does not mean that in common parlance an apprentice is an employee.

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9 . In the present case, since the word “employee” has not been defined in the contract of insurance, we have to give it the meaning which it has in common parlance. In common parlance, an apprentice is a trainee and not an employee. Even if he is given a stipend, that does not mean that there is a relationship of master and servant between the firm and the apprentice. Hence, we cannot agree with the view taken by the National Commission. In our view, the claim before the National Commission was not maintainable.”

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38 .

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On merit, the factual aspect has to be looked into as

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to whether the relief sought by the petitioners can be granted to

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them or not. Some facts are not in dispute that the present petitioners were working with the N.I.C.T. Computering System Private Limited and they were sent to the Bihar Intermediate Education Council as there was a contract between the Council and the Company. They continued to discharge the work there as employees of the N.I.C.T. Computering System Private Limited but, after 31.03.2005 contract was not extended on account of representation of the Intermediate Education Council as taking work through outsourcing causes heavy financial burden on the Bihar Intermediate Education Council and made a representation for creation of posts. In turn, the Government vide letter dated 11.02.2005 created altogether 63 posts in Computer Section for different posts. Whereafter, these petitioners were appointed on working arrangement till the persons appointed on regular basis, accordingly, they joined the service. Thereafter, these petitioners, vide letter dated 14.05.2005 (Annexure-2 to this writ petition), started working in the pay scale in different grades as like E.D.P. Manager, System Analyst, Programmer, Date Processing Supervisor, Computer Operator, Computer Operator (A.C), Computer Record Sorter, peon, Driver, Gate Keeper and Daftari. The Government, thereafter, decided to abolish the Bihar Intermediate Education

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Council, accordingly, Bihar Intermediate Education Council (Repeal) Act, was enacted and under that Act it has been provided that continuation of service in the same terms and conditions admissible to them on the date of said Repealing Act till the decision is taken with respect to absorption of those who are working in the Bihar Intermediate Education Council. Section 3(2) of the Repealing Act, prescribes for provisions of constitution of Three Men Committee headed by Development Commissioner and the Principal Secretary of the Finance Department as well as Principal Secretary of General Administration Department would be its members. The Committee has deliberated and submitted its report, the Government after detailed consideration has come out with the Resolution dated 12.07.2012 (Annexure-4 to this writ petition) giving the Scheme for absorption/regularization-cumretrenchment of service to the persons working in the Bihar Intermediate Education Council. Clause 2(i) postulates that those who satisfied five conditions will be absorbed against the sanctioned posts stipulating the conditions namely, persons must have been appointed by the competent authority, recruitment process must be preceded by advertisement, having followed the reservation policy in the appointment, person must have

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requisite qualification for the post on which they were working, appointment must be made on the sanctioned and vacant posts and those who do not fall under that category must satisfy the conditions mentioned in Uma Devi’s case, 2(ii) prescribing four conditions therein namely, appointment must be made by the competent authority against the sanctioned posts, fulfilling the requisite qualification of 10 years continuous service. Accordingly, the process of absorption against the sanctioned posts will be done following the Reservation Policy. Clause 2(vii) prescribes that those who have been appointed on ad-hoc basis and appointment letter has not been given but, they have been allowed the pay scale along with the Dearness Allowances, daily wage workers, workers appointed on contract basis, they would be retrenched on payment of one month’s salary including Dearness allowance. Clause-3(i) prescribes that those who fall under the category of 2(i) and 2(ii), preference will be given to the persons, who fall under Clause 2(i) and Clause 3(ii) prescribes daily wagers and persons appointed on contract basis will be terminated from the service on payment of one months salary and Clause 3(iii) stipulates that regularization will be made against the same pay scale and if the basic pay is not available regularization will be made in the lower scale.

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39 . This is the main area of controversy. As per the submission of learned counsel for the petitioners they do not fall in the judgment of Nand Kumar’s case (supra) or Deo Kant’s case (supra) as in both the cases, employees were working on daily wage and in Nand Kumar’s case (supra) this Court has held that daily wagers do not fall under the category of “employee” for the purposes of their regularization in service. Only those who have been appointed in regular manner on regular posts will be treated to be the employee but, the question in the present case is moving around about the status of the present petitioners, in what manner they will be treated for the purposes of falling under the Scheme as the Board has taken a stand that they do not satisfy conditions enumerated in Uma Devi’s case (supra) , so their services have been terminated as they were not properly appointed preceded by an advertisement, so due process of law has not been followed though they continued for years together.

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40 . Another aspect has to be examined as to whether the case of these petitioners squarely covered by the judgment of Uma Devi’s case (supra) as this judgment does talk of 10 years of service uninterrupted and having been not appointed in illegal manner. The claim of the petitioners is that admittedly

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they were appointed by the competent authority against the sanctioned posts, fulfilling the criteria and worked for 10 years but, in the present case, it has to be examined that the period of 10 years will be counted from which date. Their services will be absorbed only if they do satisfy the conditions mentioned in the scheme. Admittedly, they do not fall under the category of Clause- 2(i) as they do not satisfy all the conditions mentioned therein. In Clause- 2(ii) one of the conditions has been stipulated of working of 10 years and which is the date for reckoning 10 years of service, will be relevant to decide the issue of 10 years of continuous service. Admittedly, the petitioners were appointed in the year 2005 and this Resolution has come into existence on 12.07.2012 and the order of dismissal has been communicated to the petitioners admittedly after 10 years. If the due date has not been provided, then, in that situation, the due date will be the date the scheme has been notified i.e. 12.07.2012 will date the date of enforcement. Even presuming that their cases would be considered under Clause 2(ii) but, in my view, they failed to satisfy the condition of 10 years continuous service looking to the date of appointment vis-a-vis the date on which the scheme enforced.

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41 . The issue has been raised by the Bihar School

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Examination Board that in view of the judgment of Nand Kumar’s case (supra), the petitioners do not fall in the category of “employee” under the Repealing Act or the Scheme framed thereunder. It has further been submitted that the Bihar State Agriculture Market Repealing Act is pari materia to Bihar State Intermediate Council Repealing Act, following the judgment of Nand Kumar’s case (supra) , it has been held that the employees working on daily wages will not be entitled to absorption of their services in Bihar State State School Examination Board.

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42. Before arriving to right conclusion, it will be relevant to examine the contour of the scheme. As has been explained, the word “employee” has not been defined, in this background, it has to be resolved, whether the petitioners would fall under the category of an “employee” within the scheme. The clause 2(vi) stipulates, those appoint regular and in legal manner, they will be provided the option of Exit Settlement Plan and provided the manner the payment would be made corresponding to year of service left and Clause 2(vii) mentions, those who are in service on ad hoc basis, on daily wage basis and on contractual basis, their services will be dispensed with on payment of one months salary. So, it is clear that the scheme has clarified two types of employees i.e. regular employee and

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otherwise those regular employees and different treatment has been given. It is clear from the recital, the employee on contract basis and ad-hoc basis have been kept along with daily wage employees. Hence, this Court is of the view that the petitioners being contractual employees / ad-hoc employees are not the employees under the Repealing Act or scheme framed thereunder.

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43 . Another aspect of the matter is that when they were appointed they were knowing the terms and conditions as they have accepted the terms and conditions with their open eyes and they are knowing since their initial appointment, they would continue in service till the regular appointment is made, so they were knowing their fate from the beginning that they could not continue in the service after the persons joined on regular posts. When they have accepted the terms and conditions of appointment in open eyes and in open mind, then they cannot say that there will be another terms and conditions of contract, in which they can claim their regularization of service and inasmuch as, Clause-3(vii) prescribes that those who have been appointed on contract basis or ad-hoc basis, their services will be dispensed with on payment of one month’s salary.

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44. One of the pleas has been taken by the petitioners

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that they should be given the benefit as has been given to the petitioners of Civil Appeal No. 1868 of 2018 (Mukesh Kumar and Ors. vs. R.K. Mahajan and Ors.) followed by Contempt Petition (C) No. 1285 of 2018. While disposing the Civil Appeal No. 1868 of 2018, the Hon’ble Supreme Court directed to take appropriate decision in the light of the Scheme of the Repealing Act, the Report of Three Members Committee constituted under the Act and the Resolution taken based on the report and while taking the decision the Government will also keep in mind that the employees have, as of now, worked for around 23 years. It has further been directed that the needful shall be done positively within a period of two months from the date of order. Whereafter, the Government has taken decision in negativity. In the Contempt Petition, the Hon’ble Supreme Court, in exercise of jurisdiction under Article 142 of the Constitution of India, in order to give a quietus to the decade long litigation between the parties, directed for absorption of those persons in service but, made it clear that the said order will not be treated to be a precedent. So, it is very much clear that the High Court does not have the Power of under Article 142 of the Constitution of India. It is only the Hon’ble Supreme has the power to give complete justice to the parties.

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45. So, the judgment placed reliance upon by the petitioners in the case of Bhanu Kumar Jain vs. Archana Kumar and Another (supra) that the action of the respondents will operate as estoppel and res judicata does not apply to the facts of the present case because in that case the situation was quite different, but in this case the Hon’ble Supreme in exercise of Power under Article 142 of the Constitution of India and to give a quietus to the decade-long litigation has passed the said order.

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46 . One of the points has been taken by the petitioners that the Government has constituted Three Men Committee, which prescribes the modalities and conditions of absorption, in such view of the matter, the Bihar School Examination Board has no authority to create a Five Men Committee and reject the claim of these petitioners. For deciding this point, it will have to understand why this Five Men Committee has been constituted. It appears that the Three Men Committee was constituted for framing the Scheme to find out the modalities of regularization and absorption of the persons but, the Five Men Committee was constituted by the Bihar School Examination Board to see in what manner that Scheme should be operated upon and acted upon as to who are the persons covered under the scheme. So,

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in my view, there was no wrong on the part of the Bihar School Examination Board in constituting the Five Men Committee to verify who are the persons fall under the category of absorption.

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47 . Looking to the judgment of the Full Bench of this Court in the case of Ram Sevak Yadav (supra) , in which one of the conditions has been made that person must have been appointed in regular manner after the advertisement. Certainly, these petitioners have not been brought into service after following the due process, inasmuch as, claim of absorption can be considered only when the person is in service but, admittedly, in the present case, the petitioners are out of service, so the question of their absorption does not arise. Reliance can be placed on the judgment of C.W.J.C. No. 5899 of 2011 (Deo Kant Choudhary and Ors. vs. The State of Bihar and Ors.) , wherein myself has placed reliance on two judgments of the Hon’ble Supreme Court i.e. Oshiar Prasad and Others vs. Employees in Relation to Management of Sudamdih Col Washery of M/s. Bharat Cocking Col Limited, Dhanbad, Jharkhand reported in (2015) 4 SCC 71 and in the case of Management of Barara Cooperative Marketing cum Procession Society Ltd. vs. Workman Pratap Singh reported in 2019 (1)

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PLJR (S.C.) 353. In such view of the matter, the petitioners could have been considered for regularization in service only in a situation when they were in service.

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48 . In both the counts, the petitioners do not succeed, accordingly, their petition is dismissed. However, if the Bihar School Examination Board embarks the process of recruitment on the posts against which they worked and if these petitioners apply for the same, in such circumstances, maximum relaxation of age be granted to these petitioners and their experience should also be taken into consideration while making recruitment subject to the condition that they will satisfy other conditions.

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(Shivaji Pandey, J)

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pawan/-

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AFR/NAFR	N.A.F.R.
CAV DATE	17.08.2019
Uploading Date	19.02.2020
Transmission Date

Jawahar Lal Ram and Ors. v. State Of Bihar and Ors.

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Jawahar Lal Ram and Ors. v. State Of Bihar and Ors.

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