NAND KUMAR SON OF LATE SHIV CHANDRA SINGH Vs. STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR

JUDGEMENT

(1.) THESE six writ petitions alongwith two others were clubbed together for hearing and disposal at the stage of admission itself. But on account of substantial difference in facts as well as legal issues, two writ -petitions have been separated and shall be governed by a separate judgment. In all these six writ petitions the petitioners were initially appointed on daily wages. The petitioners continued for several years. In the case of Nand Kumar (CWJC No. 16109 of 2008), petitioner was appointed about 27 years earlier. He has worked as accounts clerk and claims to have received monthly salary in the minimum of pay scale with dearness allowance and other allowances for the last about 27 years. For the sake of convenience, the facts as well as relevant annexures shall be from the records of this writ petition.

(2.) THE State Legislature passed the Bihar Agriculture Produce Market (Repeal) Act, 2006 (the Repeal Act 2006) effective from 1.9.2006. As a result of Section 3 of the Repeal Act 2006, the Bihar Agriculture Produce Market Act, 1960 (hereinafter referred to as 'the Act of 1960 ') and the Rules of 1975 framed thereunder stand repealed but certain decisions rendered earlier as well as disciplinary proceedings initiated or pending against the employees of the Board are saved. Under Section 4, the assets and liabilities of the Bihar Agriculture Produce Marketing Board or of the Marketing Committees or Bazar Samiti constituted under the Act of 1960, have vested in the State Government. The State Government by virtue of Section 5 has power, authority and jurisdiction to issue necessary directions or orders to secure the object of the Repeal Act 2006. Section 6 which is relevant for the purpose of these cases provides for absorption of officers and employees of Bihar Agriculture Marketing Board/Market Committee/ Bazar Samiti. The main issue falling for consideration in these cases is common viz. whether the daily wage employees like the petitioners are included in the words "all officers and employees" as used in Section 6(i) of the Repeal Act 2006 and whether the Committee of Secretaries constituted under Section 6(H) can prepare a scheme denying absorption on the ground of employees being appointed by the Board/Market Committee/Bazar Samiti on daily wages or is it obliged to prepare a scheme in which absorption of such employees must also be provided for. For the sake of convenience and easy reference, Section 6 is extracted hereinbelow - "6. Absorption of officers and employees of Bihar Agriculture Marketing Board/Market Committee/Bazar Samiti. -(i) On and from the date of repeal of the Act, all officers and employees of the Board, shall remain in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such time State Government has taken such final decision as is provided hereafter. (ii) 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. Scheme prepared by group of Secretaries shall be placed before the State Government within two months from the date of enforcement of the present Act. The State Government shall thereafter approve the scheme: Provided that it shall be open to the State Government to modify, amend or suggest modification or amendment and the scheme thereafter shall be made operational in such form and intent as finally approved by the State Government. Scheme approved by the State Government shall be considered as statutory scheme framed under this Act. (iii) After the scheme approved by the State Government is enforced it shall be fully implemented in its form and intent within three months from the date of its enforcement. (iv) Group of Secretaries constituted under sub -section (ii) above shall be competent to decide utility and deployment of offices and employees of the Board or the Committee during transition period and it shall not be open to any officer or employee to question decision of group of Secretaries. (v) Scheme framed under this Act shall have effect, notwithstanding any other Act, Ordinance, Rule, regulation, direction, order or instruction and condition of service of officers and employees of the Board or the Committee, shall be governed and regulated under the scheme to the extent provision has been made in the scheme: Provided further that it shall be competent for the State Government to amend, modify, alter or substitute the scheme so framed for removal of difficulties in implementation of the scheme."

(3.) ON behalf of the petitioners a strong emphasis was led on Section 6 of the Repeal Act 2006 to submit that it provides only a scheme for absorption, and there is no liberty or scope granted to classify the officers and employees of the Board into those who entered as daily wagers and those who entered as regular employees. As a corollary of such submission, the resolution of the State Government in the Department of Agriculture dated 15.3.2007 contained in Annexure -B to the counter affidavit was also assailed, particularly clause 3.6 of the resolution, on the same ground that it was not permissible or open for the Government or the Committee to decide that workers employed on daily wages shall be removed from service immediately after paying salary for one month.