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Judgment
Honourable Justice Smt. T. Meena Kumari
These appeals have been filed against a common order dated 27.02.2008 passed in C.W.J.C. No. 9750 of 2007 along with C.W.J.C. No. 9730 of 2007, C.W.J.C. No. 9731 of 2007, C.W.J.C. No. 9732, C.W.J.C. No.1230 of 2008, C.W.J.C. No.1285 of 2008 and C.W.J.C. No. 9980 of 2007 respectively wherein the petitioners therein have chosen to file the writ petition seeking direction to treat them as regular Security Personnel of Bihar Legislative Assembly Complex and to give all benefits of regular employees of respondent no.1 and further there should be no curtailment of their rights of service benefits including the reduction of emoluments.
It is the case of the petitioners who had been appointed as Security Personnel by virtue of an advertisement issued on 04.05.2001 on vacant posts and their claim is against regular post and they have been continued as such right from the year 2002 to 2008. Suddenly, they have been asked not to work from the year 2008 onwards.
The State has opposed the said contention stating that their appointments were made in pursuance of an advertisement issued in the year 2001 which was only for temporary posts and that to for specific period of one year to be extended at the discretion of the Speaker, Bihar Legislative Assembly hence, the respondents have no right whatsoever to claim permanency of such appointments. Moreso, they have no legal right to seek for regular appointments.
After hearing the matter at length, the learned Single Judge has observed that as the advertisement did not stipulate with regard to temporary appointment and that full procedures for a regular appointment were followed coupled with the submission that the appointments were made against sanctioned vacancies, the court has directed the respondents-appellants herein to take a decision in light of their own practice in the past as contained in annexure-15 series and also taking into consideration the present recommendation with regard to creation of posts in Schedule-1 within a period of six months from the date of receipt/production of a copy of this order. Till such exercise is completed by the State they shall not interfere with the services of the concerned petitioners as determined under the advertisement. The above judgment has been questioned in these present appeals.
Although, lengthy argument has been advanced by the learned Senior counsel to the effect that as per the contents of the advertisement issued in the year 2001, the appointments were made only on temporary basis and neither they are supposed to be for the regular posts nor sanctioned post. Though, there is no basis for the respondents to claim that the appointments were made on regular basis or against the sanctioned posts but in view of the urgency as per need of the Speaker, Bihar Legislative Assembly the advertisement was issued only for the temporary posts of security personnel and hence, the appointments of the respondents were made only for the period of one year and the period was extended from time to time by the Speaker, Bihar Legislative Assembly.
The above fact has been disputed by learned Senior Counsel appearing on behalf of the petitioner-respondents herein stating that though the advertisement was issued only for the regular posts and not for temporary posts on which all the appointments were made and an impression was given to the respondents that the appointments were made for regular posts and not for temporary posts. It has further contended that as they were given regular pay-scale, they should be deemed to have been appointed on the regular posts and not on the temporary posts.
We had the occasion to go through the advertisement issued in the year 2001. On perusal of the advertisement, it gives an impression that the advertisement was issued only for the temporary posts and it was never specified that the advertisement were made for regular posts. In absence of any such contents being followed in the advertisement, we are of the opinion that the respondents cannot claim that they have been appointed on the regular posts. Even though, they were given regular pay-scales, the fact remains that the appointments were made only for the limited period of one year and same was being extended from time to time at the discretion of the Speaker and as such all of them were continued till the year 2008. As the appellant-State has not allowed them to work any further they approached this Court and this Court directed that continuance of their work should not be interfered with. However, it has been submitted before us that the stay granted by the earlier Division Bench of this Court is still continued till today.
On a perusal of the advertisement issued on 04.05.2001, we are of the opinion that the advertisement carries the impression that it was issued only for appointment on the vacant posts and not on the regular posts. But however, the pay-scales which have been advertised carries as per the posts and there is no dispute as such that the posts carried regular pay-scales. It is further observed that respondents have been continued from 2002 to 2008 and their services were extended from time to time on the discretion of the Speaker. Under the above circumstances, in absence of any other document available before us to the effect that the advertisement was issued only for filling up the sanctioned posts on regular basis, we are of the opinion that the advertisement has to be read that the posts are advertised for filling up the vacant posts and therefore the advertisement can be termed for the temporary posts and not for the permanent posts.
Under the above circumstances, as the observation of the learned Single Judge to the effect that as advertisement did not carry the basis for recruitment on temporary or permanent posts, it should be treated as permanent posts was without any basis accordingly such observation has to be set aside and the process of selection should be treated as that of for filling up the vacant posts.
In view of the fact that they have been continued in service from year to year, we are of the opinion that it would suffice, if a direction is issued to the appellant-State to restore that post as was available to them on the last day of their service i.e. 31.01.2008 in the same status and to regularize the services of the respondents in the permanent posts available as on today in taking into account the date of their appointments and also according to the seniority. The entire exercise must be completed within a period of three months.
We are also of the opinion that the personnel who have completed more or less six years of experience have to be given the above benefit as stated supra in order of their seniority followed by the personnel who have completed less than five years following the seniority. We are of the opinion that such respondents who have not worked are not entitled for any arrears of salary but however, regular pay-scales must be paid to them from the date of their joining as stated supra. They must be allowed to join on the temporary post in the same status as they worked till the last date of their service i.e. 31.01.2008. But however, recruitment process must commence in the available vacan permanent posts for the personnel who has completed more than six years in accordance with their seniority followed by the second batch. The personnel who have completed upto five years, their cases shall be considered in accordance with their seniority and they may be allowed to join on the temporary posts as they were holding same status till the last day of their work, ie. 31.01.2008.
With the above observation, these appeals are disposed of.