Patna High Court
Most. Ahilya Devi vs The State Of Bihar on 23 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.444 of 2022
In
Civil Writ Jurisdiction Case No.14199 of 2019
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Most. Ahilya Devi Wife of Naresh Tiwari, Resident of Mohalla - Sanjay
Nagar, Road No. 3, P.S. - Jakkanpur, District - Patna.
... ... Appellant/s
Versus
1. The State of Bihar Through the Principal Secretary, Rural Works
Department, Govt. of Bihar, Patna.
2. The Special Secretary, Rural Works Department, Govt. of Bihar, Patna.
3. The Principal Secretary, Department of Finance, Govt. of Bihar, Patna.
4. The Chief Engineer-I, Rural Works Department, Govt. of Bihar, Patna.
5. The Superintending Engineer, Rural Works Department, Works Circle, Aara.
6. The Executive Engineer, Rural Works Department, Works Division, Aara.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Durgesh Nandan, Advocate
For the Respondent/s : Mr. S. Raza Ahmad, AAG-5
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 23-08-2023
The appeal is against the judgment of the learned
Single Judge, which found the sympathetic consideration sought
for by the petitioner for a regular appointment, to be
unsustainable especially since her husband, died while he was
working in a Work Charge Establishment. Finding that there is a
total absence of a policy resolution or decision supporting the
petitioner's claim, the writ petition was dismissed.
2. The learned counsel for the petitioner/appellant
Patna High Court L.P.A No.444 of 2022 dt.23-08-2023
would seriously assail the decision, pointing out that the
appellant herself was continued for long on the Work Charge
Establishment, even after the death of the appellant's husband.
3. The learned counsel for the appellant relies on
two decisions of this Court. One of a Division Bench and the
other of a learned Single Judge; respectively, Koshi Project
Workers Association v. State of Bihar; 2007 1 PLJR 358 and
Triveni Mahto v. State of Bihar; 2005 4 PLJR 505.
4. In Triveni Mahto (supra), the petitioners were
engaged as daily wagers, in works which were perennial in
nature. Their cases were considered for absorption in Work
Charge Establishment, and after absorption, they continued in
service on a regular salary. Later, their absorption was attempted
to be cancelled since it was found to be contrary to a
Circular/Resolution of the Finance Department. The plea of the
State was only that none of the petitioners had completed 240
days in continuous service. This Court, based on an earlier
decision, found that the engagement of the writ petitioners and
their absorption came long before the resolution of the Finance
Department. It was found that the petitioners were engaged prior
to the resolution of the Finance Department and had completed
240 days prior to the resolution in the year 1987. We cannot find
any parallel or the principles applicable to the present case.
Patna High Court L.P.A No.444 of 2022 dt.23-08-2023
5. In Koshi Project Workers Association (supra),
the challenge was against the cancellation of promotions to the
post of Clerk/Assistant. The petitioners were originally engaged
as Majdoors in the Work Charge Establishment and later
promoted in the year 1973. The reversion to the original post of
Majdoor occurred in the year 2002 on the finding that promotion
from the Work Charge Establishment is not permissible. The
Court while accepting the fact that there is vast difference
between the Work Charge Establishment and Permanent
Establishment; all the same found that the order impugned was
issued on the wrong premise that the writ petitioners were
employed under the Work Charge Establishment. It was found
that the State Government incorporated a Clause in the P.W.D.
Code Volume-I providing for a Work Charge Establishment of
permanent nature; required for 12 months in a year and for long
and indefinite periods. The writ petitioners in the said case were
promoted to the post of Clerk/Assistant and thus became
employees of the Permanent Establishment. We do not find any
assistance from the aforesaid judgment also, for enabling the
claim of the appellant herein.
6. Insofar as the appellant is concerned she is said to
have been terminated from the post of Work Charge
Establishment by Memo No. 806 dated 05.11.2014 passed by the
Patna High Court L.P.A No.444 of 2022 dt.23-08-2023
Superintending Engineer, Rural Works Department, Works
Circle, Ara. A writ petition was filed in the year 2014 which was
disposed of directing a representation to be considered. The
representation was considered and rejected by Annexure-1
against which the appeal is filed.
7. The appellant's husband was appointed as
Chowkidar in the Work Charge Establishment on 04.08.1987 and
received salary up to May 1990. The appellant's husband was
missing from 08.07.1990 upon which the family was thrown to
the streets. An application was made by the petitioner on
21.12.1990 and the petitioner, on sympathetic considerations,
was appointed on daily wages for three months. The daily wage
employment was extended from time to time and later she was
appointed in the place of her husband as work charge Chowkidar
in the year 1991.
8. Admittedly, the work charged employees who can
be regularized are only those who have been appointed prior to
21.10.1984. The appellant's case is that her case stands on a
different footing and ought to have been considered on
humanitarian grounds.
9. We have to notice that this is the context in which
the matter was remanded for consideration of a representation.
The representation was disposed of by Annexure-1, which
Patna High Court L.P.A No.444 of 2022 dt.23-08-2023
specifically spoke of Financial Department memo no. 10710
dated 17.10.2013 relating to conversion of Work Charge
Establishment to Regular Establishment of only those persons
appointed before 11.12.1990. The applicant is said to have been
appointed in the Work Charge Establishment only on 03.03.1992,
hence the representation was rejected with right reserved to the
applicant to submit an application under the process for district
level panelisation.
10. Regularization, as the guidelines stand now,
cannot be considered. We find absolutely no reason to interfere
with the rejection of the representation, in the absence of any
Rule for regularization.
11. We have already found that the judgments cited
do not apply to the appellant's case.
12. The appeal hence would stand dismissed.
(K. Vinod Chandran, CJ)
( Partha Sarthy, J)
aditya/-
AFR/NAFR
CAV DATE
Uploading Date 28.08.2023.
Transmission Date
