Siya Das and Others vs The State of Bihar and Others

Narayan Roy, J.—Heard Mr. Tara Kant Jha, learned senior counsel for the petitioners and J.C. to Government Pleader No. 1 for the State respondents. This application is directed against the order dated 31.3.1999 issued vide Memo No. 354 as contained in Annexure-5 series whereby and whereunder the petitioners have been terminated.

Mr. Tara Kant Jha, learned senior counsel appearing for the petitioners, submitted that the petitioners initially were engaged on daily wages on different posts by respondent No. 4 in between 1981-1983 and respondent No. 4 having found their performance quite satisfactory, appointed them on the muster roll in the year, 1987 and accordingly, they worked in the Department on muster roll from 1987. Again the petitioners were appointed on work charged establishment in the pay-scale of 775-1025 vide Memo No. 13 dated 10.1.1992 with retrospective effect i.e. 1.8.1991 and thereafter the petitioners gave their joining on their respective posts in the work charged establishment on 12.1.1992. It is further submitted by learned counsel that the petitioners were working against the sanctioned vacant posts but somehow or the other respondent No. 4 issued letters dated 31.3.1999, 3.1.1997 and 28.8.1998 terminating the services of the petitioners on the ground that they are appointees after 1.1.1988.

Learned counsel submitted that since the petitioners were appointed against a pay-scale considering their continuity in their services right from 1981, 1982 and 1983, the cut-off date, as disclosed in the impugned order, i.e. 1.1.1988 in no way would apply in the cases of the petitioners. The detail of initial appointments has been given in paragraph 4 of the writ petition.

A counter affidavit has been filed on behalf of the respondents wherein it is only stated that since the petitioners were appointed much after the cut-off date i.e. 1.1.1988, they have been terminated as per Section 25 of the industrial Disputes Act. So far statement made in paragraph 4 of the writ application is concerned, the same has been answered in paragraphs 17 and 18 of the counter affidavit but specifically that has not been denied to the extent that the petitioners had not worked on daily wages since 1981, 1982 and 1983. In paragraph 18 of the counter affidavit, it is stated that their earlier performance was of no consequence meaning thereby that though the petitioners had worked, that should not be acknowledged for treating them as regular employees.

Now it is admitted fact that the petitioners were engaged on daily wages in 1981, 1982 and 1983 and seeing their performance, they were put on the muster roll and thereafter they were appointed in the work charged establishment against a pay-scale. The petitioners, therefore, should be treated in services of the respondents right from the very inception i.e. 1981, 1982 and 1983.

Considering these aspects of the matter, therefore, it is held that the petitioners are appointees much before the cut-off date i.e. 1.1.1988. Besides, it also appears that the petitioners continued in services for more than 10 years and, therefore, equity demands that they should not be terminated on either ground.

In this connection, reference may be made to the decision of this Court in the case of Abhay Kumar Pandey Vs. The State of Bihar and Others, which has been affirmed by the Apex Court.

Considering the facts and circumstances of the case, therefore, the action of the State authorities must be held to be arbitrary, unreasonable and wholly without jurisdiction. In the result, this application is allowed. The orders impugned as contained in Annexure-5 series are set aside and the petitioners are directed to be reinstated on their substantive posts with all consequential monetary benefits. No costs.