Basant Singh vs The State Of Bihar
2021 Latest Caselaw 4371 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.14818 of 2015
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1. Basant Singh son of Late Mahadeo Singh Resident of Village- Karamchat, P.S.- Bhagwanpur, District- Kaimur.

2. Mahipateshwar Ram, son of Sri Ram Naresh Ram

3. Shankar Chero, son of Sri Ghurhu Chero

4. Bigau Singh, son of Late Langtu Singh

5. Lalan Singh, son of Sri Dukhi Singh

6. Lalan Singh, son of Late Butan Singh

7. Lalan Chero, son of Kaluta Chero

8. Chandrika Singh, son of Late Tisuri Singh

9. Sri Singh, son of Jagarnath Singh

10. Sheo Murat Singh, son of Late Ramchyan Singh

11. Ramkeshwar Yadav, son of Sri Mahadev Singh Yadav

12. Shiv Prasad Singh, son of Jhankri Singh

13. Prayag Chero son of Late Tulsi Chero

14. Budhu Chero, son of Sri Jaganath Chero

15. Mangroo Singh, son of Sri Ramyadi Singh

16. Devan Singh son of Sri Ganesh Singh

17. Pragash Singh, son of Late Butan Singh

18. Most. Somari Kuer W/o Late Baburam Chero R/o- Ibrahimpur, Block-

1. Rampur, Dist- Kaimur.

19. Ram Awadhesh Chero, son of Late Feku Chero

20. Gorakh Chero son of Late Banbari Chero

21. Ram Chandra Chero, son of Late Kishore Chero

22. Most. Bhagrathna Kuer W/o Late Sriniwas Chero R/o Ibrahimpur, Block-

1. Rampur, Dist- Kaimur.

23. Bindo Singh, son of Late Bhagwat Singh

24. Bikram Chero, son of Late Piyari Chero

25. Deval Singh, son of Sri Subhag Singh

26. Dasrath Prasad Singh, son of Late Tui Singh

27. Devdhari Singh, son of Late Bhola Singh

28. Lala Sharma, son of Late Mangru Sharma

29. Shivpujan Singh, son of Late Sarup Singh

30. Lalan Chero, son of Sri Gudar Chero

31. Jaysukh Singh, son of Sri Ram Bachan Singh

32. Shivpujan Chero, son of Late Darbari Chero

33. Most. Basanti Kuer W/o Late Rambali Chero R/o Ibrahimpur, Block-

1. Rampur, Dist- Kaimur.

34. Bindhyachal Singh, son of Late Murat Singh Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

35. Tej Bahadur Singh, son of Sri Ram Badan Singh

36. Jagdish Singh son of Late Bhola Singh

37. Bishwanath Singh Yadav, son of Ram Sakal Singh Yadav

38. Ram Kishun Singh, son of Sri Baldeo Singh

39. Ram Bhajan Singh, son of Late Ramchandra Singh

40. Bikrama Singh, son of Late Bigan Singh

41. Lalita Singh Yadav, son of Late Ramchandra Singh

42. Ganga Yadav, son of Late Mamadeo Singh Yadav

43. Shiv Nath Singh, son of Sri Kedar Singh

44. Shankar Singh Yadav son of Sri Manohar Singh Yadav

45. Baban Singh, son of Sri Basudeo Singh All resident of village- Karamchat, P.S.- Bhagwanpur, District- Kaimur

... ... Petitioners Versus

1. The State of Bihar through the Principal Secretary, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna.

2. The Joint Secretary, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna

3. The Chief Engineer Civil, Water Resources Department, Dehri

4. The Chief Engineer Mechanical, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna

5. The Superintending Engineer, Durgawati Construction Circle, Bhitri Bandh, Kaimur

6. The Superintending Engineer Mechanical, Water Resources Department, Dehri

7. The Executive Engineer, Durgawati Dam Project, Bhitri Bandh, Kaimur

8. The Executive Engineer, Spilway Division, Durgawati Dam Project, Bhitri Bandh, Kaimur

9. The Executive Engineer, Durgawati Dam Project, Right Embankment, Bhitri Bandh, Kaimur

10. The Executive Engineer, Durgawati Dam Project, Left Embankment, Bhitri Bandh, Kaimur

... ... Respondents ====================================================== Appearance :

       For the Petitioners      :       Mr. Shivendra Kishore, Senior Advocate
                                :       Mr. Jai Kishore Poddar
                                :       Mr. Saroj Kumar
       For the State            :       Ms. Archana Meenakshi (GP 6)

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

ORAL JUDGMENT Date : 31-08-2021

This matter has been taken up for hearing online because

of COVID-19 pandemic restrictions.

2. Heard Mr. Shivendra Kishore, learned Senior Counsel

with Mr. Jai Krishna Poddar and Mr. Suraj Kumar for the

petitioners and Mrs. Archana Meenakshee, learned G.P.- 6 for the

State of Bihar.

3. There are 45 petitioners in the present application.

Petitioners No. 18, 22 and 33 died during the pendency of this

application and have been substituted by their legal representatives

for pursing this matter.

4. The facts of the case are not at all in dispute. The

Water Resources Department, Government of Bihar, had acquired

huge chunk of land from several persons in and around 1979 for

Durgawati Dam Project, situate in the district of Kaimur, Bihar.

Consequent upon acquisition of land, many persons had become

landless or lost substantial area of their land, rendering them

jobless. It appears from an order of this Court dated 15.04.2005

passed by a coordinate Bench in C.W.J.C. No. 1760 of 2000

(Basant Singh and Others vs. The State of Bihar and Others),

filed by these petitioners that the State Government of Bihar had

passed a resolution containing policy relating to appointment of Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

persons got displaced because of acquisition of land for execution

of different projects under the Water Resources Department. The

resolution provided, inter alia, that the persons, who would be

displaced for implementation of the project under the Water

Resources Department, Government of Bihar, must be

rehabilitated by providing an employment. It was decided that one

employment shall be allowed for each of the family displaced. The

Government also decided, in the said policy, that the first

preference for the employment shall be given to such families,

which had lost all the lands belonging to the families, then those

which has lost 75 percent of its lands and thereafter to the families,

which has lost 50 percent of its lands.

5. The petitioners claim that their families had lost 100

percent of their lands in the acquisition for execution of said

Durgawati Dam Project. They were listed as such and were also

given appointment by the Government, but on ad hoc basis. As

services of the petitioners were being not regularized and their

services were being taken on ad hoc basis only for several years,

they approached this Court by filing the said writ application

registered as C.W.J.C. No. 1760 of 2000. A coordinate Bench of

this Court, in its decision dated 15.04.2005 in case of Basant

Singh (supra) filed by the petitioners held as under : - Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

"...Be that as it may, the aforesaid representation in the policy regarding employment of displaced persons because of execution of different projects under Water Resources Department, was a representation about an employment which the government was competent to retain and accordingly, the government could only give an employment in its establishment to such displaced persons, in as much as only such employment could be retained by the government. It could not give assurance, nor could ensure retention of an adhoc employment, which is given only for doing emergent necessary work, required to be done for a temporary period."

6. After having held as above, the Court directed the

State respondents in case of Basant Singh (supra) to consider

within 12 weeks from the date of service of a copy of the order

upon respondent No. 1 of that case to convert ad hoc/daily wage

employment of the petitioners into permanent appointment in its

permanent establishment.

7. Taking exception to the decision rendered by a

coordinate Bench of this Court in case of Basant Singh (supra),

the State of Bihar preferred an appeal under the Letters Patent of

this Court giving rise to L.P.A. No. 875 of 2006. The said L.P.A.

No. 875 of 2006 (State of Bihar and Others vs. Basant Singh and Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

Others) came to be dismissed by a judgment and order of a

Division Bench of this Court dated 22.07.2010, which has been

brought on record by way of Annexure-4 to this writ application.

From the Division Bench decision of this Court in case of State of

Bihar vs. Basant Singh and Others (supra), it can be easily

noticed that the State of Bihar had taken mainly two grounds to

assail the order passed by the writ Court in case of Basant Singh

(supra) : -

(i) there was difficulty in finding of post for the

petitioners to convert their ad hoc/daily wage appointment into

permanent appointment in permanent establishment; and

(ii) under the policy decision, scrutiny was required to

be made and a fresh scrutiny should be permitted to be done by the

authorities.

8. Having noticed the facts and circumstances and the

stand taken on behalf of the State of Bihar, the Division Bench

observed that the State of Bihar and its officials had not been fair

and honest in implementing their policy, which was formulated to

take care of immense hardship of the displaced persons, who had

lost their means of livelihood. Such policy must have been

formulated keeping in view the necessity for employees relating to

the various projects, which have been going on since around 1980- Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

90 and has not been completed yet. The Court further observed

that if during such long period, the posts could not be notified for

such displaced persons, fault must lie with the authorities.

9. The Division Bench finally held as under : -

".... In the special facts of the case the authorities must treat the petitioners as regular employees on account of their own policy, the hardship which the petitioners have undergone and the bleak future of the petitioners if they are continued to be treated as daily wage employees. In such circumstances, in our view, the relief granted by the writ court to the writ petitioners is just and fair relief which requires no interference. The pleas of the appellants cannot be accepted as valid when the engagement of the petitioners is continuing for such a long time as ad-hoc daily wage employees. The posts must be treated as regular posts. The petitioners must be given all the benefits as regular employees within a reasonable period such as eight weeks from today.

8. If any of the petitioners is dead then his heirs will be at liberty to claim whatever legal benefit may accrue to them on account of order of the writ court. The appeal fails and is accordingly dismissed. There shall be no order as to costs."

Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

10. In compliance of the decision of this Court dated

15.04.2005 in C.W.J.C. No. 1760 of 2000 and dated 22.07.2010

passed in L.P.A. No. 875 of 2006, the Chief Engineer, Water

Resources Department, Government of Bihar, came out with an

order dated 09.08.2012 appointing the petitioners as Peons in the

pay band 4440-7440 and grade pay of Rs.1300 with admissible

allowances. The only grievance, which the petitioners have in the

present writ application, is that their regular appointment should

not be treated from the date of issuance of the said order dated

09.08.2012. It is their case that they should have been treated to

have been engaged on regular basis from the date of their initial

appointment.

11. In the aforesaid background, the petitioners are

seeking quashing of paragraph 4 of the said order dated

09.08.2012 issued by the Chief Engineer, which stipulates, inter

alia, that their regular appointment shall not confer upon them any

seniority in the cadre and their position shall be below the persons

already appointed in the cadre. They are seeking a direction to the

respondents to shift back the date of their appointment with effect

from the date when they were initially appointed on ad hoc basis

and give them benefit of continuity of service with all Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

consequential benefits including difference of salary after

deducting the amounts already paid to them and benefits of

pension and gratuity under the scheme as was applicable to the

employees of the State Government prior to 2005.

12. A counter affidavit has been filed on behalf of the

State of Bihar, wherein it has been stated that the petitioners have

been appointed on regular basis in the light of the judgment and

order passed by this Court in C.W.J.C. No. 1260 of 2000 and

L.P.A. No. 875 of 2006. It is their case that there is no direction in

either of the said judgments and orders that the petitioners were to

be appointed with retrospective effect. It has further been stated

that once the petitioners joined, pursuant to the order dated

09.08.2012, they cannot turn around and claim benefit of regular

appointment from retrospective date as they cannot approbate and

reprobate at the same time.

13. A rejoinder to the counter affidavit has been filed on

behalf of the petitioners reiterating that admittedly the Division

Bench of this Court in its order dated 22.07.2010 passed in L.P.A.

No. 875 of 2006 has affirmed the order of the writ Court dated

15.04.2005 passed in C.W.J.C. No. 1760 of 2000, whereby the

respondents were directed to convert ad hoc/daily wage

employment of the petitioners into permanent employment in its Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

permanent establishment. It is the case of the petitioners that the

direction of this Court was to convert the ad hoc appointment of

these petitioners into permanent employment. In compliance of the

said orders of this Court, the respondents were under obligation to

merely convert the engagement of these petitioners into regular

appointment and not to appoint them afresh.

14. A supplementary affidavit has been field on behalf of

the petitioners, wherein it has been stated that during the pendency

of this application, some of the petitioners, namely, petitioners No.

2, 7, 8, 10, 11, 19, 24, 34, 39 and 40 retired on attaining the age of

superannuation. It has been asserted that the petitioners have

uninterruptedly discharged their duties on ad hoc basis from their

initial date of engagement till their regular appointment against

Class IV post of Peon vide order dated 09.08.2012.

15. Reliance has been placed on an order dated

09.01.2018 of this Court passed in C.W.J.C. No. 18775 of 2008

(Ram Lal Chero and Others vs. The State of Bihar and Others),

whereby, in similar circumstance, a coordinate Bench of this Court

has directed the respondents to take into consideration the past

service rendered by the petitioners for the purpose of pension as

well as A.C.P. benefits but not for others. It has also been stated in

paragraph 17 of the supplementary affidavit filed on behalf of the Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

petitioners in respect of petitioner No. 26 that he was also one of

the petitioners in C.W.J.C. No. 1760 of 2000, who was transferred

and posted in the office of the Executive Engineer, Ganga Pump

Canal Division, Chousa, Buxar, and on the basis of the

recommendation made by the selection committee, Buxar,

appointment of petitioner No. 26 has been confirmed vide letter

No. 2010 dated 09.10.2012. It is contended that said petitioner No.

26 is also entitled to the same privileges as the persons whose

names figure in the order dated 09.08.2012 issued by the Chief

Engineer, Water Resources Department, Dehri.

16. Mr. Shivendra Kishore, learned Senior Counsel

appearing on behalf of the petitioners, has placed reliance on a

coordinate Bench decision of this Court in case of Bimal Kumar

Roy and Others vs. The State of Bihar and Others, reported in

[2021 (2) BLJ 354] to submit that this Court, noticing

uninterrupted service of the employees subsequently regularized,

has directed for counting past service rendered by the petitioners

of that case for the purpose of qualified pensionary service only to

the extent of ten years, rest service was not to be counted for

quantification of pensionary benefits. Paragraph 19 of the decision

in case of Bimal Kumar Roy (supra) reads as under : -

"19. In view of the facts and circumstances mentioned above, the Court is Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

constrained to allow the writ petition in the light of the judgment of the Apex Court in the case Netram Sahu and Amarkant Rai (Supra) and also noting the fact that the petitioners form same homogeneous class as other persons who were appointed on daily wages before 1.8.1985 and have been granted benefit of pension, petitioners are also entitled to similar treatment. Accordingly, the past service rendered by the petitioners shall be counted for the purpose of qualified pensionary service i.e. only to the extent of 10 years and rest services shall not be counted for quantification of pensionary benefits. Since the petitioners' past service has been recognized by the respondents and only as a recognition of past service, they have been appointed on regular post, they are entitled to pensionary benefits notwithstanding coming into force new pension scheme as taking advantage of their own wrong in causing delay in regular appointment of the petitioners by the respondents, the petitioners cannot be denied the benefit of pension saying that the new pension scheme has been introduced."

17. Reliance has also been placed in case of State of

Bihar vs. Prem Kumar Singh, reported in 2011 (2) PLJR 956.

The Division Bench in case of Prem Kumar Singh (supra) issued

following direction in paragraph 12 : -

Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

"12. In the result, this appeal is dismissed with costs quantified at Rs.1,00,000/- (Rupees One lac. only) towards harassment and cost of the proceedings to be paid to the writ petitioner within a period of four months. The State Government in the department of Water Resources is hereby directed to appoint the writ petitioner on a suitable post consistent with his qualification with effect from the date six months prior to the date on which possession of his lands were taken over with all consequential benefits. The entire arrears of salary shall carry interest @ 6% (six) from the dates the amounts including costs became due till the date of payment."

18. Complaining against the conduct of the officials of

the State, he has referred to Supreme Court's decision in case of

Anil Kumar vs. The Union of India and Others reported in (2019)

5 SCC 591, to contend that it was incumbent upon the respondents

to have given complete effect to its own policy decision. The

decision of the State Government to grant petitioners regular

employment from the date of issuance of the order dated

09.08.2012 is contrary to the final decision of the State

Government, he contends. He has also relied on yet another

decision of Supreme Court in case of N.D.Jayal and Another vs.

Union of India and Others, reported in (2004) 9 SCC 362. Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

19. It is evident from the facts noted above that in the

earlier round of litigation initiated at the instance of these

petitioners giving rise to C.W.J.C. No. 1760 of 2000, a coordinate

Bench of this Court had reached a definite conclusion that the

assurance of the State Government to grant benefit of employment

to the displaced persons meant such employment, which could be

retained by the Government. It could not give an assurance, nor

could ensure retention of an ad hoc employment, which is given

only for doing emergent necessary work, required to be done for a

temporary period. The said conclusion of the coordinate Bench

stood affirmed with the dismissal of the Letters Patent Appeal

preferred by the State of Bihar. The writ Court had directed on

15.04.2005 to consider within 12 weeks from the date of service of

copy of the order upon respondent No. 1 to convert the ad

hoc/daily wage employment of the petitioners into permanent

appointment in its permanent establishment. The respondents did

not choose to implement said order of the writ Court and filed the

Letters Patent Appeal much thereafter in 2006. The Division

Bench dismissed the Letters Patent Appeal and thus affirmed the

decision rendered by the writ Court. The Division Bench decision

was rendered in 2010. The respondent Chief Engineer has issued

the order nearly two years thereafter on 09.08.2012. Apparently, Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

for their own latches and delay caused by the respondents in

issuing necessary order converting ad hoc/daily wage employment

of the petitioners to permanent establishment, the respondents are

resisting the claim of the petitioners for counting their past service

for all the purposes including for the purpose of computing of

period of their past service for different benefits against various

heads.

20. This Court's order for converting their ad hoc

employment to permanent Establishment was passed much before

01.09.2005 with effect from which, new pension scheme came into

force. The petitioners are admittedly working for years together.

Some of the petitioners attained the age of superannuation on

various dates as indicated in paragraph 10 of the supplementary

affidavit filed on behalf of the petitioners.

21. It would be useful to note that in case of N.D.Jayal

(supra), which arose out of execution of Tehri Dam Project, the

Supreme Court held that those ousted or displaced from the area

for execusion of the project had a right under Article 21 of the

Constitution to lead decent life and earn livelihood. Rehabilitation

of the oustees is logical corollary of Article 21 of the Constitution

of India. The oustees should be in a better position to lead a decent

life and earn livelihood in the rehabilitated location, the Supreme Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

Court observed. Referring to and relying on earlier decisions, in

case of Narmada Bachao Andolan v. Union of India,

reported in (2000) 10 SCC 664 and in case of B.D. Sharma v.

Union of India, reported in 1992 Supp (3) SCC 93, the

Supreme Court laid down in paragraph 60 in case of

N.D.Jayal (supra) as under : -

60. Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a decent life and earn livelihood in the rehabilitated locations. Thus observed this Court in Narmada Bachao Andolan case [(2000) 10 SCC 664] . The overarching projected benefits from the dam should not be counted as an alibi to deprive the fundamental rights of oustees. They should be rehabilitated as soon as they are uprooted. And none of them should be allowed to wait for rehabilitation. Rehabilitation should take place before six months of submergence. Such a time-limit was fixed by this Court in B.D.

Sharma v. Union of India [1992 Supp (3) SCC 93] and this was reiterated in Narmada Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

[(2000) 10 SCC 664] . This prior rehabilitation will create a sense of confidence among the oustees and they will be in a better position to start their life by acclimatizing themselves with the new environment."

22. Obviously, recognizing the fundamental right to life

of the oustees under Article 21 of the Constitution, the State of

Bihar had prepared a plan in the form of policy decision to

employ the oustees in government service, which the

officials/respondents failed to honour. Despite this Court's order,

the officials declined the petitioners their rightful claim on one

pretext on the other.

23. In the admitted facts and circumstances, as noted

above, in my opinion, it will be equitable in the interest of justice

if the respondents are directed to treat the date of appointment of

these petitioners in permanent establishment with effect from

09.07.2005, the date when 12 weeks expired from passing of the

order by this Court dated 15.04.2005 in C.W.J.C. No. 1760 of

2000 (supra). A right accrued to the petitioners with the passing of

the said order dated 15.04.2005, whereby the respondents were

commanded to consider converting of ad hoc employment of these

petitioners into permanent establishment, denial of which was

found by the Court to be arbitrary. The petitioners cannot be Patna High Court CWJC No.14818 of 2015 dt.31-08-2021

blamed for the delay caused in issuance of the order by the Chief

Engineer in this regard. In the Court's opinion, in no circumstance,

they should be denied the notional benefit of shifting the date of

their regular appointment.

24. Having held so, in the Court's opinion, the

petitioners are held be entitled to pensionary benefits, in

accordance with the Bihar Pension Rules, 1950 for computation of

which their past service on ad hoc basis shall be computed, for the

purpose of qualifying pensionary service to the extent of ten years.

25. This writ application is allowed to the aforesaid

extent.

26. There shall, however, be no order as to costs.

(Chakradhari Sharan Singh, J) Pawan/-

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Uploading Date          01.09.2021
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