State of
Bihar & Ors Vs. Shyam Yadav & Ors
[1997] INSC 33 (14 January 1997)
S.C.
AGRAWAL, G.T. NANAVATI
ACT:
HEAD NOTE:
WITH
CIVIL
APPEALS NOS. 9235 OF 1995 & 9236 OF 1995
S.C.
AGRAWAL, J. :- The question that falls for consideration in these appeals is whether
Class III and Class IV employees who were employed in connection with census
operations of 1991 in the State of Bihar and whose services have been terminated after the completion of the
census work are entitled to seek absorption in service under the Government of
Bihar.
The
census operations are conducted by the Government of India in accordance with
the provisions of The Census Act, 1948 after an interval of 10 years. In
connection with the said census operations Class III and Class IV employees are
employed as Supervisors, Checkers, Compilers, etc. for collecting different datas
in the various Tabulation Offices established in different parts of the
Country. After the completion of the census operations the services of these
employees are terminated. Demands have been raised from time to time by such
retrenched census employees for their absorption in service in the Central
Government or in the State Government. Similar appointments were made on the
posts of Supervisors, Checkers, Compilers, etc. in connection with 1991 census
operations and after the completion of the census operations their services
were terminated. By his letter dated December 26, 1991, the Registrar General
and Census Commissioner, Government of India, requested the Chief Secretaries
of the States to extend whatever assistance the State Government could provide
in absorbing in the State Government's own offices as well as in the
undertakings the temporary staff appointed in connection with the census work
when the Regional Tabulation Offices which have been set up in the States/Union
Territories are wound up in 1992. The Secretary to the Government of Bihar,
Department of Personnel and Administrative Reforms, by his letter dated
September 2, 1992, informed the Registrar General and Census Commissioner that
the number of retrenched and surplus employees of the different offices of the
State Government are excessive and they are waiting for being adjusted in the
Government service but till now it has not been possible to give them a berth
and in the circumstances it would not be possible for the State Government to
absorb the retrenched census employees of the Government of India in its
offices. Feeling aggrieved by the said communication dated September 2, 1992, a
number of retrenched employees of 1991 census operations filed Writ Petitions
in the Patna High Court for quashing the letter dated September 2, 1992 and for
a direction to the State Government of Bihar to absorb them against existing
vacancies available in different departments under the State Government. the
said Writ Petitions have been allowed by the High Court by the impugned
judgments dated February
18, 1994 and March 9, 1994. The High Court has directed the
State Government to consider the cases of the retrenched census employees
(hereinafter referred to as `the petitioners') who had filed the Writ Petitions
before the High Court for their absorption along with others at the time of
regular appointment against suitable posts and that they should be given
preference, if they are otherwise eligible for such appointment, and in case
they are found over age, age relaxation equivalent to the period they have
served in the Census Department, can also be provided, but such consideration
shall be strictly in accordance with inter se seniority of the retrenched
employees of that year.
The
High Court has proceeded on the basis that the Government of Bihar in its
Cabinet meeting held on January 8, 1973 took a policy decision to provide
employment by absorbing retrenched census employees and that the said policy
decision was reiterated through various executive instructions of the State
government contained in letters dated April 7, 1982, May 14, 1985, February 14,
1986, May 5, 1987 and August 19, 1987. The High Court has also referred to the
orders passed in other Writ Petitions relating to retrenched employees of 1971
and 1981 census wherein directions were issued to the State Government to
consider the cases of retrenched employees of 1971 and 1981 census for
employment under the State. The High Court was of the view that from time to
time the authorities decided to consider the cases for absorption/appointment
of 1991 retrenched census employees at the same pattern on which the other
retrenched census employees were absorbed. Feeling aggrieved by the said
judgments of the High Court, the State of Bihar has filed these appeals.
The
question which requires examination is whether the Government of Bihar has
taken a policy decision regarding absorption of the retrenched census employees
of 1991 census operations. Before we proceed to examine the question, we would
refer to the submission urged by Shri Vasudev Prasad, the learned senior
counsel appearing for the petitioners, that the petitioners were employees of
the State Government having been employed in connection with the census
operations in the State of Bihar and that it was the obligation of the State
Government to absorb them in service under the State. This contention has been
raised for the first time in this Court. It was not urged before the High
Court. Moreover, it runs against the case set up by the petitioners in Writ
Petitions filed before the High Court wherein it has been stated that the Union
of India in the Census Department had published an advertisement on January 26,
1991 in various daily newspapers inviting applications for census work in 1991
for Grade III and Grade IV posts of Supervisors, Checkers, Compilers, etc. in
the various districts mentioned therein and that in accordance with the said
advertisement some of the petitioners applied for appointment while names of
some of them were directly forwarded by the Employment Exchanges in various
districts and that after interview by a Selection Committee they were offered
appointment by the Central Government in the Home Ministry and the petitioner
accepted the offer of appointment and that on the basis of the said offer they
were given temporary appointment in the Census Department of the Central
Government and subsequently after the completion of the census operations their
services were terminated. In view of the specific averments contained in the
Writ Petition, there is no basis for the claim by the petitioners that they
were employees of the State Government and, therefore, it is the obligation of
the State Government to absorb them.
We
would now examine the question whether the Government of Bihar had taken a
policy decision regarding absorption of the retrenched employees of 1991 census
in the State services. In order to establish the case that such a policy decision
had been taken, the learned counsel for petitioners has taken us through the
various documents on which reliance has been placed by the High Court.
Shri
B.B. Singh, the learned counsel appearing for the appellants, has, however,
submitted that those documents relate to retrenched census employees employed
in connection with the census operations of 1971 and 1981 and do not relate to
census operations of 1991 and that as regards the retrenched employees of 1991
census the policy of the State Government is that it is not possible to absorb
them since it found great difficulty in absorbing the employees of 1981 census
operations and there are a large number of retrenched employees of the State
Government who are seeking absorption. We will, therefore, briefly refer to
these documents.
The
first document is the Memo dated January 8, 1973 which deals with the priority to be given to the retrenched
Government servants in appointments to be made to non- Gazetted Class III and
Class IV posts. The said Memo is general in nature relating to employees who
had been retrenched from Government service and directs that to the posts that
are reserved as per rule for SCs/STs or Ex- servicemen only such candidates
from the list of retrenched persons should be appointed who come in the above
category and if there are no candidates belonging to these categories in the
list then the candidates of SCs and STs or Ex- servicemen should be taken from
outside and that 50% of the unreserved vacancies should be filled up on
priority basis by the suitable candidates from amongst the retrenched hands and
that the remaining vacant posts should be filled up by the outsiders by
adopting the normal procedure. The said Memo makes no mention of retrenched
census employees of the Central Government and it cannot, therefore, be
construed as containing a policy decision regarding absorption of retrenched
census employees of the Central Government. The letter dated April 7/8, 1982
from the Chief Secretary to all the Departments of the Government as well as
the Head of Departments and District Magistrates relates to appointment of
retrenched employees of the census operation offices in the State in Government
offices. In the said letter it is stated that work in Bihar Tabulation Offices
which were opened in different parts of the State under the census operation
office has now been completed and the employees on account of the retrenchment
of their services were facing problems of unemployment. By the said letter it
was directed that arrangement should be made to appoint these retrenched
employees against vacant posts by giving them priority in keeping with their
individual qualification and merit and that the District Magistrate should get
prepared panel of such Class III/IV employees who had been retrenched from
census operation office and preserve the same with them so that in future as
and when vacancy comes up he would fill up the post by appointing persons from
this appeal. It was, however, stated that there shall be no concession in age
limit in making such appointment and that this order would not apply in cases
of appointments made on the basis of written competitive examinations conducted
by Bihar Public Service Commission or Lower Service Selection Board. In the
letter dated May 14/17, 1985 from the Chief Secretary to all Departments of the
Government, all Heads of Department, Divisional Commissioners, District
Magistrates and undertakings of the State Government it was stated that the
Government had taken a decision after due consideration to absorb the
retrenched census employees of the census operations in the Government services
by appointing them against vacancies on priority basis as per their
qualifications as per the following directions:-
1.
Where appointment is not being made by Bihar Public Service Commission or Lower
Service Selection Board, at the district level if two persons out of whom one
is a retrenched census employee from census is found suitable equally then the
retrenched census employee may be given preference.
This
concession should be allowed only when it conforms to the prescribed
appointment procedure and is within the frame work of reservation principles.
2. So
far as relaxation of age limit is concerned, the period of service of the
retrenched employee in census operation may be extended, but the maximum period
of exemption should not exceed 3 years. Such exemption is admissible to only
such retrenched employees of census operations who have worked for at least six
months continuously in census operations.
3.The
District Magistrates should prepare panel of IVth grade employees retrenched
from census operation and keep it with them and the vacant posts and future
vacancies should be filled up from this panel.
4. The
Government should be kept posted with the information from time to time as to
the appointments so far made or to be made in future in accordance with these
instructions.
The
said directions were reiterated in the letter dated February 14, 1986 of the Chief Secretary to all Government Departments, All
Departmental Heads, All Divisional Commissioners, All District undertakings. By
the said letter the concerned officers were directed to furnish information
about the total number of appointments that were made since April 8, 1982 and the number of retrenched census
employees who were appointed. The next document is the letter dated May 5, 1987 from the Chief Secretary to all Departments of
Government, all Heads of Department, Divisional Commissioners and District
Magistrates. Shri Vasudev Prasad has placed strong reliance on this letter and
has submitted that it shows that the decision of the State Government regarding
absorption was not confined to retrenched census employees of 1971 and 1981
census operations but was a general decision covering retrenched census employees
of subsequent census operations also. We do no find anything in the said letter
which may lend support to this inference.
The
letter dated May 5, 1987 refers to the earlier letters dated April 8, 1982, May
17, 1985 and February 14, 1986, and after setting out the directions given in
the letters aforementioned further directions with regard to absorption of
retrenched census employees were given as under:- (i) the prohibitory orders in
connection with not filling the existing vacancies in the State should not be
applied in the cases of appointment of such employees;
(ii) exemption
regarding age limit be extended upto the age of 35 years;
(iii) the
retrenched employee should be given the foremost priority subject to the
condition that the retrenched employee holds prescribed qualifications showing
his competence for the post, and (iv) the directions regarding reservation
issued from time to time would be fully applicable.
The
letter dated May 5,
1987 has to be read in
the same context as the earlier letters referred to above. If the letter is
thus read, it can only be construed to refer to retrenched census employees of
1981 census operations. There is nothing in the said letter which may indicate
that it contains a policy for the retrenched census employees of future census
operations also. Having considered the various letters on which reliance has
been placed by the High Court, we are unable to hold that on the basis of the
said letters it can be said that the Government of Bihar had taken a policy decision
regarding absorption of retrenched census employees of future census operations
including the retrenched census employees of 1991 census operations.
Reference
may now be made to the letters pertaining to the retrenched employees of 1991
census operations. A reference has already been made earlier to the letter of
the Registrar General and Census Commissioner dated December 26, 1991 and the
reply of the Government of Bihar dated September 2, 1992 to the said letter.
The High Court has referred to letter dated July 23, 1992 from the Commissioner, Saharsa Division, and the letter of
the Secretary to the Government of Bihar dated September 29, 1992 addressed to all the Commissioners. It appears that by
letter dated March 4, 1992, the Director, Census Operations, Bihar, had made a
request for absorption of retrenched census employees of 1991 and the Regional
Census Employees Union, Saharsa Division, were also submitting a demand
regarding employment of retrenched census employees of 1991 census. By his
letter dated July 23,
1992, addressed to the
Chief Secretary to the Government of Bihar, the Commissioner, Saharsa Division,
sought directions about the decision of the State Government in this regard. In
the said letter the Commissioner has made a reference to the earlier letter
dated May 5, 1987 from the Chief Secretary containing instructions regarding
adjustment of retrenched census employees of 1981 census and has stated that
those employees have been absorbed in the regional offices. Thereafter the
Secretary to the Government of Bihar, Department of Personnel and
Administrative Reforms, Special Retrenchment Cell, addressed a letter dated September 19, 1992 to all the Divisional Commissioners
and District Magistrates wherein he dealt with the matter of absorption of the
retrenched employees from census office of Government of India. In the said
letter it is state that the State Government had received a request from the
Registrar General and Census Commissioner of the Government of India, regarding
absorption of the employees who were in census offices of Government of India
for census operation, 1991 and that the State Government having fully
considered the case and has taken this decision, that it is not possible for
the State Government to assimilate the retrenched employees of the census
offices of the Government of India because in different offices of the State
Government itself there is an excess number of both retrenched and surplus
employees waiting for readjustment. A copy of the letter No. 261 dated September 2, 1992 sent to the Registrar General and
Census Commissioner of the Government of India was also enclosed for
information.
The
letter dated September 29, 1992 from the Secretary to the Government of Bihar,
Department of Personnel and Administrative Reforms, Special Retrenchment Cell,
addressed to all Divisional Commissioners and District Magistrates referred to
by the High Court was not sent in reference to letter of the Commissioner, Saharsa
Division, dated July 23, 1992. The said letter dated September 29, 1992 deals
with absorption of retrenchment/surplus staff of the State Government and it
does not relate to retrenched employees of 1991 census operations which matter
was specifically dealt with in the earlier letter dated September 19, 1992.
Shri Vasudev
Prasad has placed strong reliance on Memo dated October 18, 1993 from the Directorate of Employment and Training, Government
of Bihar, addressed to all the Officers in-charge of Employment Exchanges in
the State of Bihar. The said Memo relates to
priorities/relaxation in the matter of appointment of retrenched employees of
the regional census offices in the State of Bihar and makes a reference to letter of January 1993 received from the
Directorate General of Employment and Training, New Delhi.
By the
said Memo it was directed that the necessary steps be taken in accordance with
the rules by giving priority/relaxation to the retrenched employees who were
employed in connection with 1991 census operations as per the directions of the
Directorate General of Employment and Training on the receipt of list of such
retrenched employees from the Directorate of Census and its subordinate
offices.
The
said Memo only contains directions for the Officers in- charge of Employment
Exchanges to take steps according to the rules for giving priority/relaxation
in the matter of registering and sponsoring the names of the retrenched
employees of 1991 census operations in the matter of appointment in the
Government services/undertakings. There is nothing in the said letter to
indicate that the Government of Bihar had given a commitment regarding
absorption of the retrenched census employees of 1991 census operations in the
service of the State Government.
Shri Vasudev
Prasad has also invited our attention to the advertisement dated April 21, 1993
(published in the newspaper `Hindustan' dated May 17, 1993) issued by the
District Employment Officer, Purnea, whereby applications were invited for
appointment on Grade IV posts in the District Collectrate, Kishanganj and other
district level officer of the State Government. In the said advertisement it is
stated: "Preference shall be given to Discharged Census Employees".
It has been submitted that this advertisement shows that the policy of the
State Government was to give preference in the matter of appointment to
discharged census employees of 1991 census. This contention is not borne out by
the words used in the advertisement because it is not expressly stated in the
advertisement that the stipulation regarding preference contained in this
advertisement relates to discharged census employees of 1991 census. The said
stipulation could be for the employes of 1981 census operations since the State
Government had taken a decision for their absorption. Moreover from the rejoinder
filed on behalf of the appellants it appears that not a single retrenched
census employee of 1991 census operations has been appointed in Purnea on the
basis of the said advertisement.
Our
attention has also been invited to order dated January 10, 1996 relating to posting of 25 persons out of 26 retrenched
census employees who had been appointed by order dated December 26, 1995 as Clerks. In the rejoinder filed
on behalf of the appellants it has been pointed out that these 26 retrenched
census employees had been employed in connection with 1971 and 1981 census
operations and not for 1991 census operations.
Thus
there is nothing in the documents to which reference has been made by the High
Court as well as in the documents on which reliance has been placed by Shri Vasudev
Prasad which may indicate that the State Government had taken a policy decision
for absorption of retrenched census employees of 1991 census operations. On the
other hand, there are letters of the State Government dated September 2, 1992 and September 19, 1992 clearly stating that it was not possible for the State
Government to absorb retrenched employees of 1991 census operations in the
service of the Government of Bihar. There is no material on record to show that
the decision of the State Government as contained in the letters dated September 2, 1992 and September 19, 1992 was modified subsequently by the State Government and it
was decided to absorb such retrenched employees of 1991 census operations in
the State service. In these circumstances, we are unable to uphold the impugned
judgments of the High Court holding that in view of policy decision taken by
the State Government regarding their absorption the retrenched census employees
of 1991 census operations are entitled to be absorbed in the State services and
on that basis the said employees can claim preference or priority in the matter
of such appointment in service under the State Government.
Some
of the petitioners had registered themselves with the Employment Exchange prior
to their appointment in connection with 1991 census operations. Their names
were forwarded by the concerned Employment Exchange and on that basis they were
so appointed on a post connected with 1991 census operations and consequently
their names were deleted from the register in the Employment Exchange. Since
they have been retrenched from the census office, they are entitled to have
their names restored in the register in the concerned Employment Exchange.
Similarly, those retrenched employees of 1991 census operations who were not
registered with any Employment Exchange can get themselves registered at an
Employment Exchange. In accordance with the directions given by the Directorate
General of Employment and Training, New Delhi, referred to in the Memo of the Director
of Employment and Training, Bihar dated October 18, 1993, such retrenched
census employees should be given priority/relaxation by the Employment Exchange
wherein they are registered in the matter of sponsoring and forwarding their
names for appointment against future vacancies.
In the
result, the appeals are allowed, the impugned judgments of the High Court, in
so far as they direct that the retrenched employees of 1991 census operations
are entitled to be given preference in the matter of appointment in the
services under the State of Bihar, are set aside. The petitioners can apply for
appointment against any post falling vacant if they fulfil the qualification
and other conditions prescribed for appointment to such post and, if they so
apply, they shall be considered in accordance with the rules governing such
appointment. In case they are found to be over age, one time relaxation in age
may be given to them provided they were within the age limit prescribed for
appointment at the time of their initial recruitment in the census organisation.
It is also directed that registration in the Employment Exchange of those
petitioners who were earlier so registered prior to their appointment to the
census organisation shall be restored and those who were not registered would
be entitled to get themselves registered at the Employment Exchange. The
petitioners who are thus registered with the Employment Exchange shall be given
priority/relaxation in the matter of forwarding their names for appointment
against future vacancies. No order as to costs.
Back
