PREM RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) There are 13 petitioners, out of them, petitioner Nos. 1 to 3, 7 to 10, 12 and 13 were engaged in the Bihar Secretariat Canteen, Patna as Class IV daily rated wage earners before 1.8.1985 in August 1984, March 1983, April 1985, January 1985, June 1983, April 1982, January, 1985, January 1979. Petitioner Nos. 4 to 6 and 11 were engaged in the said canteen thereafter in between 1986-87 in January 1987, August 1986. May 1987 respectively, as would appear from the notice dated 21.5.1990 issued under the signature of Deputy Labour Commissioner, Bihar, Patna, as contained in Annexure-3. They assail the order, bearing Memo. No. 3095 dated 23.10.2003 and another office order bearing Memo. No. 3133 dated 29.10.2003, as contained in Annexures 1 and 2, whereunder Secretary/Deputy Secretary, Labour Employment and Training Department has held that the petitioner Nos. 2 to 7 are not entitled to any preference in the matter of regular appointment in the Bihar Secretariat Canteen in terms of the resolution of the State Government, bearing No. 5940 dated 18.6.1993, Annexure-12 as they had not completed 240 days of continuous employment in the Bihar Secretariat Canteen before 1.8.1985. In the said order, it has further been held that petitioner Nos. 1 and 8 to 13, even though have served the canteen prior to 1.8.1985, are not entitled to count their engagement for their regular employment in the said canteen, as before 1.8.1985 they were below 18 years of age and not qualified to be in Government employment. Under office order dated 29.10.2003, Annexure-2, the Deputy Secretary of the said Department has held that as the petitioners did not complete 240 days of engagement in the said canteen before 1.8.1985 as such, they are not entitled to any preference in terms of the resolution of the State Government No. 5940 dated 18.6.1993, Annexure-12. Besides assailing the aforesaid two orders, petitioners have also filed Interlocutory Application No. 4927 of 2004 on 27th September, 2004, whereunder they have challenged the subsequent order dated 24.9.2004, as contained in Annexure-15 series, whereunder the engagement of the petitioners as Class IV daily rated wage earners in the Secretariat Canteen, has been terminated in compliance of the instruction of the State Government, as contained in resolution No. 5940 dated 18.6.1993 and letter of the Chief Secretary, Bihar, Patna dated 9.8.2004, Annexure-12 and Annexure-B to the Supplementary affidavit with immediate effect.

(2.) Before I proceed to consider the grounds of challenge raised against the three impugned orders, contained in Annexures 1, 2 and 15 series, it is meet and proper to notice a few facts.

(3.) Petitioner Nos. 1 to 13 were engaged as daily wage earners in August 1984, March 1983, April 1985, January 1987, August 1986, January 1987, January 1985, June 1983, April 1982, January 1985, May 1987, January 1979 and January 1979 respectively, as would appear from the averments made in the writ application as also from the notice issued by the Deputy Labour Commissioner himself dated 21.5.1990 as contained in Annexure-3 to carry out the Class IV duties in the Bihar Secretariat Canteen at Patna. After being engaged in the said canteen from the date of the engagement they began to discharge their duties of Class IV employees and they continued to serve the canteen to the satisfaction of the authorities in recognition of which fact authorities themselves issued notice dated 21.5.1990, Annexure-3, whereunder they indicated the total number of days for which the petitioners and others had continued to serve the canteen till the date of issue of notice dated 21.5.1990 and in recognition of that fact they proposed to regularize them in the service of-canteen and in that connection they sought objection from any other daily rated worker engaged in the canteen. It further appears from the letter dated 22nd December, 1993, Annexure-4 issued by the Manager of the Secretariat canteen that he called upon petitioner No. 1 to appear before the selection committee with his educational and other certificate so that he may be considered for regular employment in the said canteen. When the process, of regularisation which was initiated under notice dated 21.5.1990, Annexure-3, and letter dated 22.12.1993, Annexure-4 was not taken to its logical conclusion as the selection committee failed to take any decision in the matter pursuant to letter dated 22.12.1993, Annexure-4 then the petitioners alongwith others came to this Court and filed CWJC No. 12113 of 1996, praying, inter alia, that considering their long engagement with the canteen, this Court should direct the authorities to consider them for regularisation of their employment with the canteen as petitioners were serving in the canteen since long to the satisfaction of all concerned. In the said writ petition, the State authorities not only filed counter affidavit, but also filed supplementary counter affidavit, whereunder they did not make any serious objection to the prayer of the petitioners for their regularisation, rather they submitted that case of the petitioners for regularisation shall be considered in the light of the decision of the Economic Co-ordination Committee, which is awaited. In the supplementary counter affidavit, the State respondents further indicated the number of vacant posts, which were available in the canteen as also the number of compassionate appointment from amongst the wards of the deceased employees of the canteen which was required to be made. This Court considered the submission of the petitioners as also the State respondents and disposed of the matter under order 13.8.1998, Annexure-8 with observations that granting compassionate appointment can hardly be a ground to refuse regularisation as there is no allegation against the petitioners, it is fit and proper that having regard to their past services of so many years, their cases for regularisation be considered at an early date directed the Secretary and Commissioner, Labour Employment and Training Department to consider the case of the petitioners for their regularisation and to, take such decision within a period of three months from the date of receipt of a copy of the said order dated 13.8.1998. When the authorities failed to take any decision in the light of the aforesaid order dated 13.8.1998, passed in CWJC No. 12113 of 1996 the petitioners were constrained to move this Court in contempt' application, bearing MJC No. 1062 of 1999, which was taken up by a Single Judge of this Court on 21.10.2003 and the order is contained in Annexure-11, perusal whereof indicates that the authorities appeared before this Court and undertook to pass appropriate orders in the light of the earlier directions of this Court dated 13.8.1998, Annexure-8 within ten days. Having undertaken before this Court that appropriate orders in the light of the earlier direction shall be passed within ten days, the authorities issued the impugned order dated 23.10.2003 and 29.10.2003, Annexures 1 and 2, whereunder they rejected the claim of the petitioners for grant of preference in terms of the resolution of the State Government No. 5940 dated 18.6.1993 as petitioner Nos. 1 and 8 to 13 were engaged in the canteen prior to 1.8.1985 when they were below 18 years of age and the services rendered by them in the said canteen, while they were child of less than 18 years of age, could not have been taken into account for giving them preference for employment in the Secretariat Canteen. In regard to petitioner Nos. 2 to 7, it was observed in the said order that they failed to complete 240 days of continuous employment prior to 1.8.1985, as such could not be considered for grant of any preference in terms of the resolution of the State Government No. 5940 dated 18.6.1993. The two orders dated 23.10.2003 and 29.10.2003, Annexures 1 and 2 have been challenged in this application. By filing IA No. 4927 of 2004 they have also challenged order dated 24.9.2004, Annexure-15 series whereunder the engagement of the petitioners in the Secretariat canteen as daily rated employee itself has been terminated in compliance of Government resolution dated 18.6.1993 and the letter of the Chief Secretary dated 9.8.2004, which is subject to the result of MJC No. 796 of 2004 filed by the petitioners.