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IN THE HIGH COURT OF PATNA
Partha Sarthy, J.
Nidhi Raj Anand - Appellant
Vs.
State Of Bihar And Others - Respondent
Civil Writ Jurisdiction Case No. 22950 of 2019
Decided On : 01-09-2021
Service Law – Appointment – Conversion of regular appointment as contractual appointment on payment of honorarium, on post of Secretary (Company Affairs) in Bihar Rajya Pul Nirman Nigam Limited – Nowhere in advertisement did it state that appointment was on contractual basis or for a fixed period – Fact that appointment was on a regular basis is not only evident from contents of advertisement but also from contents of order of appointment of petitioner as also from contents of impugned order – 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 – Petitioner who was appointed after following due process as a regular Secretary (Company Affairs) in BRPNNL, admittedly without issuing any notice or starting a proceeding under Rules, respondent authority came out with order impugned changing her status from a regular/permanent employee to that of a contractual employee – Order impugned is clearly arbitrary, illegal, in violation of principle of natural justice and unsustainable – Impugned order set aside – Petitioner will be entitled for arrears of salary and other amounts due for entire period as a regular Secretary (Company Affairs). (Paras 12, 13 and 21)
Constitution of India – Articles 12 and 14 – An instrumentality or agency of State being State under Article 12 of Constitution is subject to constitutional limitations and its actions are State actions which must be judged in light of fundamental rights guaranteed by Part III of Constitution – Violation of principle of natural justice by a State action is violation of Article 14 of Constitution. (Para 20)
JUDGMENT :
1. 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:
II. It is further prayed that during the pendency of instant 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 regular post of Secretary (Company Affairs)
III. To pass such other orders directions 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 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.
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
Appointments against sanctioned posts do not require prior approval from the State Government, allowing for post facto validation and regularization of service.
Employers must clearly specify the nature of appointments in job advertisements; failure to do so leads to regularization of initially contractual positions when recruitment processes are followed.
Irregular daily wager appointments without advertisement violate Articles 14 & 16; no regularization or reinstatement even with prior equal pay directions; termination upheld as backdoor entries depr....
An employee's salary cannot be withheld without proper departmental proceedings, and irregular appointments can be regularized through continued service and promotions.
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