RAJ KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This L.P.A has been filed challenging the order dtd. 24/6/2025 passed by the learned Single Judge in C.W.J.C No. 9626 of 2025 disposing of the writ petition and giving liberty to the petitioner to file fresh representation before the respondent no. 3 Chief Engineer, Water Resource Department, Government of Bihar, within a period of 30 days raising all the grievances which would be considered and disposed of by passing a reasoned and speaking order, strictly in accordance with law and in the light of Finance Department Resolution No. 5547 dtd. 3/7/2019 within a period of 90 days from the date of receipt/production of the copy of the order along with the representation.

(2.) The writ petition was filed seeking for a prayer to set aside the order contained in Memo No. 187 dtd. 17/1/2013 issued by the respondent no. 3 in refusing to regularize the services of the petitioner and also for a further direction to extend the benefit of regularization to the petitioner like similarly situated work charge employees and/or even junior to the petitioner as work charge employees. The petitioner has also challenged the order contained in memo no. 3953 dtd. 22/12/2023 issued under the signature of respondent no. 3 in rejecting his claim for regularization inter alia with other reliefs. It is the case of the petitioner that he was appointed as Work Supervisor Grade II in the work charge establishment of Electrical-cum-Mechanical Division, Valmiki Nagar of Water resources Department on 20/12/1973 and continued to discharge his duty till his retirement w.e.f. 30/9/2012. After five years of completion of service, the petitioner proceeded on leave on account of illness with due sanction as per leave rules contained in the Bihar Service Code, joined his service and since he had not recovered fully from his illness, he again proceeded on leave and then he reported for joining on 9/5/2004.

(3.) The respondent no. 1 to 5 filed the counter affidavit in the L.P.A. in which it is stated that the writ petition should not be entertained as it was filed after a long delay for regularization of service i.e. 13 years after his retirement and passing of the order. It is further stated that the writ petition is not maintainable as it relates to quashing of Memo No. 187 dtd. 17/1/2013 issued by the Executive Engineer by which the regularization of the petitioner was rejected and the very same order was also challenged by the petitioner before this Court in C.W.J.C No. 130 of 2014 and the same was dismissed vide order 2/2/2015 and though the petitioner preferred L.P.A No. 969 of 2015 before the Division bench of this Court, the Division Bench also did not interfere with it and only directed the department of the Executive Engineer to consider the case of the petitioner in terms of the judgment passed in the case of Mobina Khatoon (supra) case. It is further stated in the counter affidavit that in view of the order passed not only by the learned Single Bench but also by the Division Bench of this Court, since the Memo No. 187 dtd. 17/1/2013 had attained finality, the writ petition is barred by principles of res judicata. It is further stated in the counter affidavit that after being appointed in the post of work Supervisor Grade-II in the work charge establishment on 20/12/1973, the petitioner never worked continuously in the establishment rather he was regularly remaining absent from his duties on his own and was superannuated on 30/9/2012. It is stated that the total period of absence of the petitioner during his service was 4457 days i.e. 12 years and 211 days and that the concerned Executive Engineer had wrongly sanctioned the leave of the petitioner for such a long period as he had no jurisdiction to sanction such leave for such a period, inasmuch as, Bihar Service Code provides that the Executive Engineer can sanction the leave only for a maximum period of four months. It is the further stand taken in the counter affidavit that the prayer for regularization of the petitioner was rejected by the concerned Executive Engineer on the ground that the petitioner had not worked in the work charge establishment continuously for a period of five years, which is required for regularization and therefore, the prayer for regularization as well as grant of pensionary benefit cannot be allowed. It is the further highlighted in the counter affidavit that while dismissing the writ petition filed by the petitioner vide order dtd. 2/2/2012, the learned Single Judge was pleased to observe that the petitioner failed to fulfill the requirements of regularization and when the L.P.A was filed before the Division Bench, the Division Bench simply disposed of the matter and directed the concerned authority to consider the case of the petitioner in terms of the Full Bench judgment of this Court in the case of Mobina Khatoon (supra). In the light of the judgment of the Full Bench, a Screening Committee was constituted under the Chairmanship of the Secretary, Water Resources Department, Government of Bihar, Patna, in which the grievance of the petitioner was also looked into and the Screening Committee after considering the materials available on record, rejected the claim of the petitioner. The Screening Committee found that the claim of the petitioner is not tenable as he had not worked continuously for 10 years in the work charge establishment. The Screening Committee found that the petitioner was continuously remaining absent from 26/7/1978 to 9/5/2024, without permission of the competent authority and the Screening Committee also found that the concerned Engineer who sanctioned the leave of the petitioner can only sanction the leave of Class-III and Class-IV employees and that too for a maximum period of four months and therefore, the sanction of leave was illegal and benefit of regularization could not be granted to the petitioner. The Screening Committee further found that the Executive Engineer committed misconduct and dereliction of duty and accordingly, departmental proceeding was recommended against him. It is further stated in the counter affidavit that the petitioner was not a regular employee despite the fact the concerned Executive Engineer sanctioned the leave of the petitioner for 4457 days, which is illegal. It is the further case of the respondents that in view of cancellation of the order of grant of leave, since the petitioner could not be regularized in service, his case was rightly rejected by the Screening Committee.