Raj Balam Prasad vs The State Of Bihar .

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.19846 OF 2017 (ARISING OUT OF SLP (C) No.31638 of 2016)

Raj Balam Prasad & Ors. ...Appellant(s)

VERSUS

State of Bihar & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) The appeal is filed against the final judgment

and order dated 29.02.2016 passed by the High

Court of Judicature at Patna in Letters Patent

Appeal No.1760 of 2012 whereby the Division Bench Signature Not Verified Digitally signed by ASHA SUNDRIYAL of the High Court allowed the appeal filed by the Date: 2017.11.27 16:12:37 IST Reason:

respondents herein by setting aside the order dated

1 08.05.2012 of the Single Judge in C.W.J.C. No.4247

of 2012 which allowed the appellants’ writ petition

and issued a writ of mandamus directing the State

to regularize the services of the appellants on the

post of “Muharrirs” .

3) The controversy involved in the appeal is

confined to short facts, which, however, need

mention hereinbelow to appreciate the same.

4) The short question, which arises for

consideration in this appeal, is whether the Division

Bench of the High Court was justified in dismissing

the appellants’ writ petition by allowing the intra

court appeal filed by the respondents herein and

reversing the order of the Single Judge which had

allowed the appellants’ writ petition by issuing a

mandamus directing the State(respondents) to

regularize the appellants on the post of “Muharrir”.

5) Eight (8) persons were appointed on the post of

“Muharrir” in the Office of Collector, Saran Chpara

(Bihar) in the year 1987-88 by the State (Collector).

2 These eight persons included present four (4)

appellants herein. The appointment of these eight

persons was made as temporary appointment for a

period of three months. These appointments were

made by the authority concerned by taking recourse

to the powers under Rule 57-A of the Bihar

Certificate Manual, the instructions issued under

the Bihar and Orissa Public Demand Recovery Act

(hereinafter referred to as “the Act”).

6) These temporary appointments were made for

disposal of several pending certificate cases, which

could not be disposed of for want of adequate hands

available in the office. However, the services of the

eight persons were extended for sometime by

issuing extension orders. It was up to the year

1991.

7) These eight Muharrirs filed a writ petition

(C.W.J.C. No. 5142 of 1991) in the High Court at

Patna claiming therein a relief for their

regularization in services as Muharrir. By order

3 dated 03.04.2001, the Single Judge disposed of the

writ petition by granting liberty to the writ

petitioners to submit their representation to the

Competent Authority to enable them to examine

their grievances on the question of regularization in

service.

8) The writ petitioners (8) felt aggrieved and filed

intra court appeal. The Division Bench dismissed

the appeal (L.P.A. No.434 of 2001) by order dated

28.07.2007 but further made pertinent observations

and, in consequence, also issued directions.

9) In the opinion of the Division Bench, when the

services of the writ petitioners had come to an end

on 03.06.1991 and 19.06.1991 and when these two

orders were not stayed by the Writ Court (Single

Judge) in the writ petition filed by the writ

petitioners then how the writ petitioners could

continue in services even as daily wagers thereafter

and how some of the writ petitioners were able to

get their services regularized from 10.10.2006. The

4 Division Bench, therefore, while expressing their

concern directed the State Vigilance Department to

look into the matter and take appropriate steps in

accordance with law.

10) As mentioned above, in the meantime, out of

eight Muharrirs, the services of five Muharrirs

including one more person by name Mr. Sugriev

Singh were regularized by order dated 10.10.2006.

11) The writ petitioners, whose services could not

be regularized, felt aggrieved and filed SLP in this

Court. This Court dismissed the SLP and granted

liberty to the petitioners to file representations to

the concerned authority for ventilating of their

grievance.

12) It is not in dispute that the Competent

Authority, by order dated 15.01.2012, rejected the

representation made by the appellants stating

therein that since their services had already come to

an end in 1991, no orders for their regularization

could now be passed.

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13) These persons then filed another round of writ

petition (C.W.J.C. No.4247 of 2012) and claimed the

same relief of regularization in the services by

basing their case on one Circular dated 16.04.2008.

The Single Judge allowed the writ petition by order

29.08.2011 and issued a mandamus against the

State and the concerned department to regularize

the services of the appellants on the post of

Muharrirs.

14) The respondents herein (State and the

concerned departments) felt aggrieved and filed

intra Court appeal before the Division Bench. By

impugned judgment, the Division Bench allowed the

State's appeal and dismissed the appellants’ writ

petition. It is against this judgment, the writ

petitioners have felt aggrieved and filed this appeal

by way of special leave before this Court.

15) Heard Mr. Praneet Ranjan, learned counsel for

the appellants and Mr. Manish Kumar, learned

counsel for the respondents.

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16) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in this appeal. In our opinion, the

view taken by the Division Bench appears to be just,

legal and proper and hence does not call for any

interference.

17) This is what the Division Bench held for

allowing the appeal and dismissing the appellants’

writ petition:

“We have heard learned counsel for the parties and find that the order passed by the learned Single Judge is not sustainable in law. The order passed in LPA No.434 of 2001 dated 28th of July, 2008 was not brought to the notice of the learned Single Judge. It is further contended that even if the order dated 10.10.2006 was not have set aside, the fact remains that such order of regularization could not have been passed since the services of the Muharrir have come to an end in 1991 itself. The permanent status could be conferred to those who were in service and not to those whose service had come to an end many years ago. Such an order could not be made basis of permanent status through the writ court. Such order dated 10.10.2006 is not enforceable in law. The representation having been declined in the light of the circular dated 16.04.2008, we do not find that the writ petitioners were entitled to any direction to treat them as regular employees.”

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18) We agree with the reasoning of the Division

Bench quoted supra.

19) In our opinion also, when the appointment of

the appellants (writ petitioners) was made for a fixed

period in exercise of the powers under Rule 57-A

and the said appointment period having come to an

end in the year 1991 after granting some extension,

we fail to appreciate as to how the appellants could

claim to remain in service after 1991.

20) One cannot dispute that the State has the

power to appoint persons for a temporary period

under the Act and Rules framed thereunder and

once such power was exercised by the State, the

status of such appointee continued to be that of

temporary employee notwithstanding grant of some

extensions to them for some more period.

21) In other words, the grant of extension to work

for some more period to the writ petitioners could

never result in conferring on them the status of a

permanent employee or/and nor could enable them

8 to seek regularization in the services unless some

Rule had recognized any such right in their favour.

22) That apart, when the period fixed in the

appointment orders expired in the year 1991 then

there was no scope for the appellants to have

claimed continuity in service for want of any

extension order in that behalf.

23) We have perused the Circular dated

16.04.2008 (Annexure P-7) issued by the State.

This Circular only says that if any temporary

persons are appointed for a particular project and if

they are found to be of some utility, their services

can be regularized as per Rules.

24) As mentioned above, so far as the cases of

these appellants are concerned, their

representations were examined by the State but

were rejected finding no merit therein. One of the

reasons for rejection of the representation was that

the services of the appellants had already come to

an end in 1991 and, therefore, no orders to

9 regularize their services could now be passed after

such a long lapse of time.

25) As rightly observed by the Division Bench in

the impugned judgment, the earlier order of the

Division Bench in which a vigilance inquiry was

ordered to find out as to how an order of

regularization could be passed in favour of some

Muharrirs was not brought to the notice of the

Single Judge which led him to allow the appellants’

writ petition.

26) Learned counsel for the appellants, however,

argued vehemently that the order of the Single

Judge deserves to be restored by setting aside the

impugned judgment of the Division Bench as the

same is based on proper reasoning but in the light

of what we have held supra, we cannot accept his

submission. In our opinion, the Division Bench was

right in setting aside of the order of the Single Judge

and we concur with the reasoning and the

10 conclusion of the Division Bench. In addition, we

have also given our reasoning in support thereof.

27) In the light of foregoing discussion, we find no

merit in the appeal, which thus fails and is

accordingly dismissed.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

November 27, 2017

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