DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners in this writ application have challenged the order dated 19.7.2006, as contained in Annexure -20 wherein the services of nineteen persons including the seven petitioners have been terminated. The petitioners are Road Roller Khalasis and were working in sanctioned vacant posts of Road Roller Khalasi in the Road Construction Department of Government of Bihar in various Road Divisions. The facts not being in dispute and being on record, with the consent of parties, this writ application is being disposed of at this stage itself especially as the only consideration is the legal consequence on the facts accepted by the p ies.

(2.) THE petitioners and some others were appointed in 1994 as Road Roller Khalasi for a period of three months by the respective Executive Engineers with the approval of Superintending Engineers. This was necessitated because of vacancies and because the work of road repair was suffering in absence of regular appointees. After expiry of three months, the services were not terminated. They were allowed to continue. In 1995, the Department was of the view that their appointments were not properly made that is their appointments had been made without any advertisement, as such, decided to terminate all such Road Roller Khalasies who were more than twenty in number. It is not in dispute that the Association of Workmen represented before the Department requesting that those persons be taken back in service for various reasons. Apparently, it was in order to facilitate the work in the Department. It appears the matter was considered and substantial number of persons so earlier dismissed were taken back and fresh appointment letters were issued in this regard appointing them in November, 1995.

(3.) THE short submission on behalf of petitioners is that the petitioners had been appointed on sanctioned vacant posts as there was urgent need of Road Roller Khalasies. They were permitted to continue. Authorities who were responsible for their appointment found that the posts were neither advertised nor roster clearance taken, as such, their services were immediately terminated in 1995 but notwithstanding the aforesaid, the Department immediately re -employed them in 1995 itself and since ' 1995 upto 2006, they have been continuously working on regular pay scale. Some of them were even transferred from one place to other place. It is submitted that the departure from established procedures in matter of appointment was only that the posts had not been advertised and roster clearance was not taken both of which were matters in which petitioners had nothing to do and these matters in the perspective of having already worked for eleven years could at best be termed as irregularities and not illegalities in matter of appointment as now has been judicially determined. The result would be that there being irregularity in their appointment and they having worked for a period of almost eleven years, it would be inequitous to dismiss them in view of the judgments of this Court and those of the Apex Court. It is in view of the aforesaid fact that this Court has to determine whether non -publication of advertisement and non - conformity with roster clearance would render the appointment, in the perspective of eleven years of service thereafter, illegal or irregular, for the consequences are different. It would only be appropriate to caution here, that if the action had been taken by the authorities immediately as was done in 1994 itself then the distinction which is now being sought to be drawn as between illegal and irregular appointment would not be available because there was no long continuous employment thereafter. The dismissals could not have been assailed. The situation changes when an employee has been permitted to work for over a decade. One has to consider equities and the social repercussions on the employee who, by himself, was not at fault. Those rights have to be balanced.