The main legal point established in the judgment is that the petitioners could not be treated as government servants prior to the issuance of the notification dated 28.03.2012, and therefore, were not entitled to pay protection as per Rule 39 of the Bihar Service Code.

Ajay Kumar Tripathi, J.

There are five petitioners before this Court who are seeking quashing of the Notification dated 12.09.2016 issued under the signature of Additional Secretary, Road Construction Department, Government of Bihar. The quashing of the Notification basically relates to the issue of non-grant of pay protection to them.

2. There is a long history behind the present litigation. These petitioners, along with large number of other candidates, came to be appointed as Junior Engineer between the year 1981 to 1985. They were also loosely referred to as the graduate engineers. They worked on an ad hoc manner. Their engagement was casual and not by following any procedure as such. In the year 1997, they also came to be promoted to the post of Assistant Engineer, if the expression "promotion" could be used in the present set of facts. They got a particular pay-scale and increments, but their status remained so all these years and they never had the privilege or benefit of becoming a regular Government servant. Obviously, the demand and lobbying started when these petitioners started inching towards the evening of their life. With the long service behind them, the State of Bihar, as a matter of policy, decided to regularize them, give them the benefit of past service for the purposes of grant of pension etc. and a notification in this regard was issued on the basis of a Cabinet resolution. The Notification in question is Annexure-5 dated 28.03.2012. From a reading of Annexure-5, especially paragraph 2 and 3 of the Notification, it seems that pay protection was granted to them, which, subsequently, was deleted by Notification dated 13.05.2014 contained in Annexure-7.

3. The petitioners had approached the High Court earlier, where they took a plea that the matter was being unnecessarily delayed and there was no basis for the Finance Department to issue Annexure-7. The Court was informed that the matter after reconsideration is being placed before the Cabinet, which got dragged on for some time. Finally, the Cabinet retook a decision since controversy prevailed that Annexure-5 was not in conformity with earlier Cabinet decision. The Cabinet, in a conscious decision, decided not to extend the pay protection to the petitioners, which they were asking or looking for. This is the beginning of second round of battle and the prayer in the writ application with regard to the aspect of pay protection has been made.

4. Learned senior counsel for the petitioners submits that the petitioners were Government servants for all practical purposes. Right from their hiring they have been transferred and posted at various stations under the orders issued by the State. They have been given the benefits of pay-scales as well as increments right through and, therefore, Rule 39 of the Bihar Service Code comes into play and not Rule 78 as is the stand of the State.

5. Attention of the Court was also drawn to a similar kind of litigation which was initiated in the State of Jharkhand and travelled up to the Hon'ble Supreme Court as substantial number of such engineers, after bifurcation of the State of Bihar on 15.11.2000, ended up in the State of Jharkhand. When they demanded regularization etc., the State of Jharkhand decided to remove them. Decision was challenged before a learned Single Bench and then before a Division Bench and finally before the Hon'ble Supreme Court, where the decision of the Division Bench which held in favour of those petitioners and against their removal was upheld by the Hon'ble Apex Court.

6. Learned senior counsel for the petitioners thereafter makes a submission that the benefit, which has been extended to such employees of the State of Jharkhand on the basis of the decision of the Hon'ble Apex Court, should be extended and made applicable because all benefits had been extended post their regularization.

7. The issue of regularization is not before this Court. That decision has already been taken as a matter of pol