Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2629 OF 2023
(Arising out of SLP(C) No.6944 of 2023)
THE STATE OF BIHAR AND OTHERS …APPELLANT(S)
VERSUS
JAWAHAR LAL RAM AND OTHERS …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 2630 OF 2023
(Arising out of SLP(C) No.6822 of 2023)
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted.
2. In the present appeals, the appellants have come to this
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Court, being aggrieved by the judgment and order dated 6
Signature Not Verified
February 2023, passed by the Division Bench of the High
Digitally signed by
Narendra Prasad
Date: 2023.04.15
14:21:04 IST
Reason:
Court of Judicature at Patna vide which the judgment and
1
th
order 17 February 2020 passed by the learned Single Judge
of the High Court dismissing the writ petitions filed by the
respondents herein has been reversed.
3. These appeals arise out of the peculiar facts and
circumstances.
4.
The parties are referred to herein as they are referred to
in the original writ petition being CWJC No. 22943 of 2018.
5. The erstwhile Bihar Intermediate Education Council
(hereinafter referred to as the ‘Council’) had gone for
computerization and in pursuance thereof, the N.I.C.T.
Computering System Private Limited was engaged for
computerization work on contract basis.
6. The original writ petitioners were initially taken on
service by N.I.C.T. and sent to the said Council for
computerization work. They continued to work for the
Council as employees of the said N.I.C.T. from 1999 to 2005.
7. Since the writ petitioners were working for a period of
almost six years, the Council requested the Government to
create different posts in the Computer Section of the Council.
Accordingly, 63 posts came to be sanctioned in different
grades. In the meanwhile, the contract between N.I.C.T. and
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the Council came to be terminated in the year 2005.
However, the respondents, who were earlier employees of the
N.I.C.T. came to be appointed against the sanctioned posts
by the Chairman of the Council.
8. Subsequently, the Government of Bihar decided to
amalgamate Bihar School Education Examination Board
along with the said Council. Accordingly, the Bihar
Intermediate Education Council (Repeal) Act, 2007
(hereinafter referred to as the “said Act”) was enacted. As per
the said Act, the Government of Bihar constituted a
Committee of three Secretaries to formulate the scheme for
regularization of the services of the employees, who were
working in the said Council.
9. A scheme came to be framed for regularization under
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the Government Resolution dated 12 July 2012. It appears
that, in terms of the said scheme, the services of the writ
th
petitioners came to be terminated on 18 August 2017.
Being aggrieved thereby, the writ petitioners filed the writ
petition being CWJC No.12242 of 2017 before the High
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Court. The learned Single Judge, vide order dated 18 May
2018 partly allowed the writ petition and directed the State
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Government to take a decision with regard to absorption of
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the services of the writ petitioners. Vide order dated 9
October 2018, the claim of the writ petitioners for
regularization in service came to be rejected by the Education
Department. Being aggrieved thereby, the CWJC No.22943
of 2018 was filed. The learned Single Judge, vide order dated
th
17 February 2020 dismissed the same. Being aggrieved
thereby, a Letters Patent Appeal being No. 180 of 2021 was
filed before the High Court by the original writ petitioners.
The same was allowed by the Division Bench of the High
Court. Hence, the present appeals.
10. We have heard Mr. Shyam Divan, learned Senior
Counsel appearing on behalf of the appellants and Shri
Dinesh Dwivedi, learned Senior Counsel appearing on behalf
of the respondents-employees (writ petitioners).
11.
Shri Shyam Divan submits that the reasoning given by
the Division Bench of the High Court is totally perfunctory.
He submits that the learned Single Judge, by an elaborate
well-reasoned order, found that the writ petitioners were not
entitled for absorption. He further submits that as per the
scheme, four conditions were required to be fulfilled and the
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writ petitioners did not comply with the said conditions.
Finding this, the learned Single Judge dismissed the writ
petition. He submits that the Division Bench, however, on a
ground that, the report of the Committee was signed by only
one member and not all the three members, has erroneously
reversed the well-reasoned order passed by the learned
Single Judge. He further submits that the personal affidavit
filed by the Additional Chief Secretary of the State
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Government dated 6 December 2022 would reveal that the
report of the Committee was accepted by the Cabinet of the
State of Bihar and as such, the reasoning that, the report
was not signed by all the three officers, is totally without
substance.
12. Shri Dinesh Dwivedi, on the contrary, submits that the
writ petitioners have been continuously working from 1999
till 2017. He submits that the writ petitioners have
continuously worked for a period of almost 18 years. He
submits that all the writ petitioners complied with all the
four conditions, as stipulated in the Scheme of 2012. He
further submits that the learned Single Judge, in the first
round of litigation, has also found that the writ petitioners
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complied with all the four conditions.
13. In the peculiar facts and circumstances, we are not
inclined to go into the legal issues. At the outset, we may say
that we are not satisfied with the manner in which the
Division Bench has dealt with the matter in the present
litigation. When the Division Bench was considering the
well-reasoned order passed by the learned Single Judge, the
least that was expected of it was to give reasonings as to why
it disagreed with the findings given by the learned Single
Judge.
14.
Insofar as the finding of the Division Bench that the
report was not signed by three members is concerned, it
ought to have taken into consideration that much water had
flown subsequently, inasmuch as the affidavit of the
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Additional Chief Secretary dated 6 December 2022 would
have shown that the report of the Committee was accepted
by the State Government, which was fructified in the scheme
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dated 12 July 2012, which was published in the gazette
notification. As such, the High Court, at the most could have
examined the correctness of the scheme as notified in the
gazette notification. It appears that the Division Bench
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found an easy way to deal with the litigation.
15. In any case, if the directions as issued by the Division
Bench are to be complied with, it will lead to more than one
complications. The Division Bench has granted liberty to the
State Government to again start the process and in the
meantime directed the writ petitioners to be taken back to
work. It has further directed honorary benefits to be
calculated and disbursed for the intervening period.
16. We are of the considered view that if the order, as
passed by the Division Bench, is permitted to continue, it will
give rise to third round of litigation and would not provide
any solace to the employees, who have been fighting for
justice from 2017.
17. The facts as recorded hereinabove would clearly show
that the writ petitioners have been working since 1999
continuously in the said Council, may be initially from 1999
to 2005 they were working as employees of N.I.C.T. However,
undisputedly they were working for the Council.
18. Subsequently, on account of the posts being sanctioned
by the State for the Council and the contract between the
Council and N.I.C.T. being terminated, they were absorbed
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on the posts so sanctioned by the State Government.
Undisputedly, the appointment was issued by the Chairman
of the said Council, who was the competent authority.
19. On account of subsequent fortuitous development i.e.
the merger of the Council with the Board, the petitioners
became surplus and a scheme was required to be evolved for
their absorption/regularization. Finally, a scheme was
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finalized and notified in the Official Gazette on 12 July
2012.
20. Even after the scheme was notified in the year 2012, the
writ petitioners were permitted to continue to work till 2017
and only in the year 2017, their services came to be
terminated.
21. It could thus be seen that the writ petitioners have been
continuously working since 1999 i.e. much before the
judgment in the case of Secretary, State of Karnataka
1 th
and Ors. v. Uma Devi (3) and Others , was delivered on 10
April 2006.
22. Uprooting the writ petitioners at this stage of life would
have devastating effects on them as well as on their families.
1 (2006) 4 SCC 1
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23. In that view of the matter, we find that, in the present
case, taking into consideration the peculiar facts and
circumstances of the case and without this being treated as a
precedent in any manner, a relief needs to be moulded so as
to do complete justice.
24.
We are, therefore, inclined to exercise our extraordinary
powers under Article 142 of the Constitution of India and
directed thus:
“The writ petitioners shall be absorbed on the
posts on which they are appointed in the year
2005. They would be permitted to rejoin with
st
effect from 1 May 2023. Though the writ
petitioners would be entitled to continuity in
service for all the purposes including retiral
benefits, they would not be entitled for any
backwages for the period during which they
were out of employment.”
25. The appeals are disposed of in the above terms. Pending
application(s), if any, shall stand disposed of.
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..............................J.
(B.R. GAVAI)
..............................J.
(ARAVIND KUMAR)
NEW DELHI;
APRIL 10, 2023
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