Nidhi Raj Anand vs The State Of Bihar
2021 Latest Caselaw 4380 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                C.W.J.C. No. 22950 of 2019

 =====================================================

Nidhi Raj Anand, wife of Amit Raj Anand, resident of 202-A,

Shobha Niketan Apartment, Ara Garden Road, Bailey Road,

Patna, P.S. Rukanpura, District Patna

.. Petitioners

Versus

1. The State of Bihar through its Principal Secretary, Road

Construction Department, Government of Bihar.

2. The Principal Secretary, Road Construction Department,

Government of Bihar.

3. The Bihar Rajya Pul Nirman Nigam Limited through its

Chairman, Sardar Patel Marg, Patna.

4. The Chairman, Bihar Rajya Pul Nirman Nigam Limited, Sardar

Patel Marg, Patna.

5. The Managing Director, Bihar Rajya Pul Nirman Nigam Limited,

Sardar Patel Marg, Patna.

6. The Development Commissioner, Bihar

.... Respondents

==================================================== Appearance :

 For the Petitioner/s   :     M/s Chitranjan Sinha, Sr. Advocate
                              Sidhhartha Prasad, Advocate
 For the State          :     Mr. Amit Prakash, GA 13
 For the BRPNLL         :     Dr. Anand Kumar, Advocate

==================================================== CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

CAV JUDGMENT Dated : 01-09-2021

Heard Sri Chitranjan Sinha, learned Senior

Advocate appearing for the petitioner, Sri Amit Prakash, learned

counsel for the State of Bihar and Dr. Anand Kumar, learned

counsel for the Bihar Rajya Pul Nirman Nigam Limited

('BRPNNL' in short).

2. The petitioner has filed the instant writ

application for the following reliefs:

" I. To issue writ in the nature of certiorari for quash-

ing the order contained in memo no. 2621 dated

16.08.2019 read with corrigendum contained in

memo no. 2674 dated 17.08.2019 issued under the

signature of Managing Director, Bihar Rajya Pul

Nirman Nigam Limited whereby and whereunder pe-

titioner's regular appointment made on the post of

Secretary (Company Affairs) vide order contained in

memo no. 2693 dated 07.09.2012 has been cancelled

and petitioner has been directed to work on the post

of Secretary (Company Affairs) as a contractual em-

ployee and it has further been directed that petitioner

would be entitled to the payment of honorarium in

light of the letter of development commissioner con- Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

tained in memo no. 93 dated 03.07.2019 issued in

pursuance of the recommendation of high level com-

mittee.

II. It is further prayed that during the pendency of in-

stant application the effect and operation of order

contained in memo no. 2621 dated 16.08.2019 read

with corrigendum contained in memo no. 2674 dated

17.08.2019 issued under the signature of Managing

Director, Bihar Rajya Pul Nirman Nigam Limited be

stayed and the petitioner be allowed to work on regu-

lar post of Secretary (Company Affairs)

III. To pass such other order(s) direction(s) for which

petitioner is entitled in the facts and circumstances of

the instant case."

3. The case of the petitioner in short is that the

Board of Directors of the BRPNNL being competent under

Article 79(22) of the Memorandum of Association resolved to

create the post of Secretary (Company Affairs) in the pay scale

of Rs. 1060-1580. Mr. S. Subba Rao was appointed as a regular

Secretary of the BRPNNL and held the post till his resignation

in the year 1982. In the year 2008 the competent authority

decided to make contractual appointment on the post of Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

Secretary (Company Affairs). Pursuant to an advertisement for

making contractual appointment, vide order dated 29.5.2009,

after following due process, the petitioner was appointed as

Secretary (Company Affairs) on contractual basis. The petitioner

continued to discharge her duty and her terms of contract was

extended from time to time. In the year 2011 the BRPNNL

issued an advertisement for appointment of Company Secretary

in the unrevised scale 10,000-15,200 and revised scale of

15,600-39,100. A selection committee was constituted vide

memo no. 12985 dated 25.11.2011 under the orders of the

Governor, Bihar. The selection committee proceeded with the

process of selection against the advertisement pursuant to which

eight persons including the petitioner had applied. The said five

members selection committee headed by the Secretary, Road

Construction Department, recommended the petitioner for

appointment on the post of Secretary (Company Affairs) which

was accepted by the Board of Directors of the BRPNNL and a

letter of appointment dated 7.9.2012 was issued. The petitioner

submitted her joining on 10.9.2012. It is further case of the

petitioner that on 2.7.2019 a high level meeting was convened

for fixing the honorarium of Company Secretary appointed on

contract and who are working in different Government Nigam.

Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

In pursuance of the said meeting, the Development

Commissioner issued a 'Peet Patra' dated 2.9.2019 stating that

the decision of the high level committee would be applicable

w.e.f. 1.7.2019 and that the Managing Directors of the

respective Nigams would be accountable for payment of the

fixed honorarium as per the decision of the high level

committee.

4. The Managing Director of the BRPNNL

wrote to the Development Commissioner, Bihar, that the

petitioner has been regularly appointed on the post of Company

Secretary vide office order dated 7.9.2012 and she was being

paid salary in the revised scale of Rs. 15,600-39,100 grade pay

Rs. 5400/- . The Development Commissioner, Bihar, wrote back

to the Managing Director of the BRPNNL that Company

Secretaries are appointed only on contractual basis and that

appointment and payment being made to the petitioner was

improper and reflected financial irregularity. An order contained

in memo no. 2621 dated 16.8.2019 was issued under the

signature of the Managing Director, BRPNNL, cancelling the

petitioner's appointment vide memo no. 2621 dated 7.9.2012

and changing the petitioner's service from 'permanent' to

'contractual'. Later a corrigendum contained in memo no. 2674 Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

dated 17.8.2019 was issued under the signature of the Managing

Director, BRPNNL, mentioning the honorarium to be paid to the

petitioner. It is stated that the petitioner joined the post on

contractual basis under protest and communicated the same to

the Managing Director of BRPNNL by letter dated 19.8.2019.

5. It is submitted by Sri Chitranjan Sinha,

learned senior counsel for the petitioner, that the provisions of

Bihar Government Servants (Classification, Control and

Appeal) Rules,2005 ('the Rules' in short) is applicable to the

employees of the BRPNNL including the petitioner herein.

Inspite of the impugned orders having serious civil

consequences to the petitioner, neither any approval from the

Board of Directors was taken as required under Article 79(22) of

the memorandum of association of BRPNNL nor was any notice

issued to the petitioner or proceeding initiated under the Bihar

CCA Rules, 2005 before passing of the impugned orders. It is

submitted that even if a proceeding would have been started,

such an order, as impugned herein, could not have been passed.

The petitioner was appointed on a vacant sanctioned post

created by the competent authority after following the procedure

which included inviting applications to an advertisement and

selection being carried out by a selection committee duly Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

constituted under the orders of the Governor, Bihar. The order

impugned changing the status of a permanent employee to a

contractual employee without any notice whatsoever and for no

good reason was unheard of. Learned senior counsel for the

petitioner in support of his contention relied on the judgment of

the Hon'ble Supreme Court in the case of Baleshwar Das vs.

State of U.P. (AIR 1981 SC 41).

6. A counter affidavit and a supplementary

counter affidavit has been filed on behalf of the BRPNNL and a

separate counter affidavit has been filed on behalf of the

Development Commissioner, Bihar.

7. The stand of the respondents BRPNNL is

that after her selection by the committee headed by the Principal

Secretary, the appointment of the petitioner has not been

approved by the State Cabinet which was necessary for

appointment of gazetted officer of the State Government. A high

level meeting was convened under the Chairmanship of the

Development Commissioner, Bihar, for fixing the honorarium of

Company Secretary working on contractual basis in various

Government corporations. The order applies to all Corporations.

It is stated that the office order appointment dated 7.9.2012

clearly mentions that the appointment of Company Secretary in Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

Corporation would always be temporary / contractual. The

change in status of the petitioner was done in compliance of the

order dated 2.7.2019 issued by the Development Commissioner,

Bihar. It is pursuant to the decision taken on 2.7.2019 in the

high level committee meeting convened under the chairmanship

of the Development Commissioner for fixing the honorarium of

Company Secretary working on contractual basis that by order

dated 5.8.2019 of the Development Commissioner, the

petitioner's appointment was cancelled, appointment letter

dated 7.9.2012 itself mentioning that the appointment will

always be temporary, and that it could be revoked at any stage

by giving one month's notice. Learned counsel for the BRPNNL

in support of his contention relies on the judgment in the case of

Bharat Singh vs. State of Haryana (AIR 1988 SC 281), State

of Karnataka vs. All India Manufacturers Organization

[(2006) 4 SCC 683], Indian Drugs and Pharmaceuticals Ltd

vs. Workmen, Indian Drugs and Pharmaceutical Ltd [(2007)

1 SCC 408] and Kalpataru Vidya Samasthe (R) and ors vs. S

D Gupta & another [(2005) 7 SCC 524].

8. By filing a separate counter affidavit, the

stand of the Development Commissioner, Bihar is that on

2.7.2019 a high-level committee meeting was convened under Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

the chairmanship of the Development Commissioner for fixing

the honorarium of company secretary working on contractual

basis in various government Nigam. Honorarium was fixed with

effect from 1.7.2019. This order applies to all Nigams whether

the Development Commissioner, Bihar, was in the Board of

Directors or not. It was further stated that in all Nigams,

Company Secretaries are working on contractual basis and thus

in order to maintain uniformity, the honorarium was fixed. It

was found that in the BRPNNL the petitioner was appointed on

regular basis, however, as in the joining letter it was mentioned

that the appointment will be temporary and he could be removed

by giving one month's notice, the order impugned was passed

whereby the petitioner's regular appointment was cancelled and

he was directed to work on the post of Secretary (Company

Affairs) as a contractual employee. Learned counsel for the

respondent no. 6 in support of his contention relied on the

judgment of the Hon'ble Supreme Court in the case of Indian

Drugs and Pharmaceuticals Ltd (supra).

9. Heard learned senior counsel for the

petitioner, learned counsel for the BRPNNL and learned counsel

for the Development Commissioner Bihar.

10. Having heard learned counsel for the Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

parties, the facts relevant in the instant case are that in the year

2011 the BRPNNL issued an advertisement for appointment on

the post of Company Secretary in the BRPNNL in the unrevised

scale of Rs.10,000-15,200 and revised scale of Rs.15,600-

39,100. In response to the said advertisement eight applications

were received including that of the petitioner herein. It would be

relevant to note here that the petitioner at the time of making the

application was already working in the BRPNNL as Secretary

(Company Affairs) on contractual basis. On scrutiny of

applications four out of the eight persons were found to be clear

having the the requisite qualifications/ experience and they were

called for interview. Of the four candidates only two candidates

appeared before the selection committee on 30.7.2012 and the

selection committee recommended the name of the petitioner for

appointment. The petitioner was appointed by office order dated

7.9.2012 pursuant to which the petitioner joined on 10.9.2012

and started working as a regular employee.

11. With respect to the selection committee

which recommended the name of the petitioner for appointment,

it may be noted that the said selection committee was

constituted by resolution dated 25.11.2011 on the orders of the

Governor, Bihar, and comprised of the Secretary, Road Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

Construction Department, the Chairman and the Managing

Director of the BRPNNL. and a representative each of the

Finance Department and General Administration Department of

Government of Bihar, not below the rank of Deputy Secretary.

12. Further from perusal of the contents of

the advertisement it would transpire that the BRPNNL was

inviting application for the post of Company Secretary in the

pay scale of Rs.10,000-325-15,200 (unrevised) and Rs.15,600-

39,100 (revised). Nowhere in the advertisement did it state that

the appointment was on contractual basis or for a fixed period.

The fact that the appointment was on a regular basis is not only

evident from the contents of the advertisement but also from the

contents of the order of appointment of the petitioner dated

7.9.2012 as also from the contents of the impugned order dated

16.8.2019 which clearly mentions that the regular appointment

of the petitioner has not been found to be in order.

13. At this stage it would be relevant to refer

to the judgment relied on by learned senior counsel appearing

for the petitioner in the case of Baleshwar Das (supra) wherein

the Hon'ble Supreme Court held that a person would be said to

hold a post in a substantive capacity when he holds it for an

indefinite period and not for a definite or temporary period.

Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

Paragraph nos. 32 and 33 are being quoted herein below for

ready reference:

"32. What, in the context, is a substantive ca- pacity vis-a- vis an appointment to a post ? In our view, the emphasis imported by the adjec- tive "substantive" is that a thing is substantive if it is "an essential part or constituent or relat- ing to what is essential". (Black's Legal Dictio- nary, 4th Edn. P. 1597.) We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as sub- stantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the of- ficial diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on pro- bation subject to confirmation.

33. Once we understand 'substantive capacity' in the above sense, we may be able to ratio- nalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been pre- scribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity."

14. The petitioner herein continued to work on the Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

regular post of Secretary (Company Affairs) from the date of

her appointment in the year 2012 till the order impugned was

passed pursuant to the high-level meeting held in 2.7.2019

convened for the fixing the honorarium of the Company

Secretary appointed on contract basis. From perusal of the

minutes of the meeting as contained in Annexure-7 to the writ

application it would transpire that the same does not deal with

those Company Secretaries who have been appointed on regular

basis as the petitioner herein. The contents of the minutes are

clear in so far as the same deal with fixing the honorarium of

Company Secretaries working on contract basis. In the opinion

of the Court the decision taken in the said meet meeting has no

applicability in the case of the petitioner who was appointed on

regular basis after following the due process and the respondent

authorities in applying the said decision and consequently

changing the nature of the appointment of the petitioner from

permanent to contractual by the order impugned have clearly

committed an error.

15. The contention of learned senior

counsel for the petitioner that Bihar CCA Rules, 2005 is

applicable in case of employees of the BRPNNL and further

neither any notice was issued to the petitioner nor any Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

proceeding under the Rules, was initiated against her before

passing the order impugned has neither been denied nor

contested by the respondents. The orders impugned are fit to be

set aside on this ground alone.

16. Coming to the judgments relied upon by

the learned counsel for the respondents paragraph no. 13 in the

case of Bharat Singh (supra) holds that in a writ application,

when a point of law is required to be substantiated by facts, the

party raising the point must plead and prove such facts either in

his writ petition or in his counter affidavit, as the case may be.

In case the facts are not pleaded or the evidence in support of

such fact is not annexed to the writ petition or to the counter

affidavit, the court will not entertain the point. In the case of

State of Karnataka and another vs. All India Manufacturers

Organization and others (supra), learned counsel for the

respondents relied on the judgment, particularly paragraph no.

56 thereof to contend that an instrumentality of the State cannot

have a case to plead different from that of the State. There can

be no debate with respect to the ratio of the aforesaid two

judgment as held by the Hon'ble Supreme Court.

17. In the case of Indian Drugs and

Pharmaceutical Ltd. (supra) learned counsel for the Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

respondents relied on paragraph no. 14 of the said judgment of

the Hon'ble Supreme Court which is quoted herein below for

ready reference:

"The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation."

18. From the contents of the paragraph no.

14 quoted herein above, in the opinion of the Court the same is

of more assistance to the case of the petitioner as from the

contents of the order impugned itself there remains no doubt

that the petitioner was a regular/permanent employee having

been appointed on the regular post of Secretary (Company

Affairs) and thus her status could not have been changed from a

regular employee to that of a contractual employee without

following the due process of law.

Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

19. The next judgment relied on by learned

counsel for the respondents is in the case of Kalpataru Vidya

Samasthe (supra) and more particularly paragraph nos. 7 and 8

thereof which is quoted herein below for ready reference:

7. It is now well-settled principle of law that the appointment made on probation/ad hoc for a specific period of time and such appointment comes to an end by efflux of time and the person holding such post can have no right to continue in the post. In the case of Director, Institute of Management Development v. Pushpa Srivastava, a three Judge-Bench of this Court considered the identical question and held in paragraph 20 of the Judgment as under: (SCC p. 37)

"20. Because the six months' period was coming to an end on 28.2.1991, she pre- ferred the writ petition a few days before and prayed for mandamus which was granted by the learned Judge under the im- pugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appoint- ment is contractual and by efflux of time, the appointment comes to an end, the re- spondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being con- tinued from time to time on 'ad hoc' basis for more than a year whether she is enti- tled to regularization? The answer should be in the negative".

8. In the instant case, as noticed above, the re- spondent has accepted the appointment includ- ing the terms and conditions stipulated in clause 11 of the appointment order and rejoined the post from 4-9-1995 and continued in the post up to 29-2-1996 on which date the period of six Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

months came to an end. He raised grievances before the Tribunal after the probationary pe- riod came to an end by efflux of time. Having accepted the terms and conditions stipulated in the appointment order and allowed the period for which he was appointed to have been lapsed by efflux of time, he is not permitted to turn back and said that the appointment dehors the Rules or the terms and conditions stipulated in the ap- pointment, were not legally valid."

20. The aforesaid judgment of the Hon'ble

Supreme Court is also of no assistance to the respondents in the

facts of the case as the petitioner has specifically pleaded in the

writ application that after issuance of the orders impugned she

joined the post on contractual basis under protest and

communicated the same to the Managing Director by her letter

dated 19.8.2019 (Annexure-12). In replying to the contentions

of the petitioner, in the counter affidavit filed on behalf of the

BRPNNL the respondents accept the same to be a matter of

record. Learned senior counsel appearing for the petitioner

relying on the judgment of Central Inland Water Transport

Corporation Ltd. & Anr. vs Brojo Nath Ganguly and

another [AIR 1986 SC 1571] submits that it is now well

established that an instrumentality or agency of the State being

the State under Article 12 of the Constitution is subject to the

constitutional limitations and its actions are State actions which

must be judged in light of the fundamental rights guaranteed by Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

Part III of the Constitution. As held in the case of Tulsi Ram

Patel [(1985) 3 SCC 398], violation of the principle of natural

justice by a State action is the violation of Article 14 of the

Constitution.

21. In view of the facts enumerated hereinabove,

the petitioner who was appointed after following the due

process as a regular Secretary (Company Affairs) in the

BRPNNL, admittedly without issuing any notice or starting a

proceeding under the Rules, the respondent authority came out

with the order impugned changing her status from a regular/per-

manent employee to that of a contractual employee. The order

impugned is clearly arbitrary, illegal, in violation of the princi-

ple of natural justice and unsustainable. The order contained in

memo number 2621 dated 16.8.2019 as also the corrigendum

contained in memo no. 2674 dated 17.8.2019 issued under the

signature of the Managing Director, BRPNNL, are both set

aside. The order contained in memo no. 2693 dated 7.9.2012 ap-

pointing the petitioner as Secretary (Company Affairs) is re-

stored with all consequential benefits. The petitioner will be en-

titled for the arrears of salary and other amounts due for the en-

tire period as a regular Secretary (Company Affairs) which shall

be paid to the petitioner by the Managing Director, BRPNNL Patna High Court CWJC No.22950 of 2019 dt.01-09-2021

within a period of three months from the date of receipt of a

copy of this order after deducting the amount of honorarium

etc., which may have been paid to the petitioner for the said pe-

riod.

22. The writ application stands allowed.

(Partha Sarthy, J) Spd/-

AFR/NAFR
CAV DATE                16.3.2021
Uploading Date          2.9.2021
Transmission Date