Uday Sinha, J. - (1.) This is an application under Article 226 of the Constitution of India by the Petitioners, who are correspondence clerks in the Bihar State Electricity Board (hereinafter referred to as 'the Board') for insurance of a Writ of mandamus commanding the respondents to consider the cases of the petitioners for their permanent employment in their respective posts with effect from the 18th of March, 1958 and to grant them and the consequential benefits. The respondents to this writ application are the State of Bihar through the secretary to the Government of Bihar in the Department of Electricity, the Bihar State Electricity Board and the Chairman, Bihar Electricity Board, Patna-1.
(2.) The case of the petitioners is that they were initially appointed in the Electricity Department of the State of Bihar. In 1958 the State Government resolved to constitute a State Electricity Board for Bihar with effect from the 1st of April, 1958 for the purpose of discharging the functions then being performed by the Electricity Department and its certain offices excluding the Electrical Inspectorate and Works Division. In consequence of that resolution, contained in Government resolution No. 2959/Elec. dated the 27th of March, 1958, all those subordinate staff of the Electricity Department with the exception stated therein were transferred, to the Bihar State Electricity Board from the 1st of April, 1958. The services of all the petitioners besides officers of various grades and categories were placed at the disposal of the said Board on foreign service terms. The petitioners, who were on the date of the transfer temporary correspondence clerks of the Electricity Department contend that their services were transferred to the Board subject to all the rights and privileges and conditions of service in regard to pay increments, leave, promotion and discipline as under the State Government and in addition they would continue their mention try rights which would include the right of counting emoluments for pension in respect of not only such posts in existence under the Government, but also on such new posts as might be created thereafter by the Board The petitioners contend that they consented to reive the newly formed Board on the clear understanding that they would enjoy the same service conditions as were admissible to them as Government servants and that they had been assured of these facilities and privileges. In 1960 the State Government appointed the Second Pay Revision Committee and in accordance with its recommendations in 1901 the State Government rev Bed the scales of pay of all the non-gazetted and gazetted Government servants. The replacement scales of pay took effect from the 1st of April, 1962, but no arrears were allowed prior to April, 1964 to the petitioners. The recommendations were accepted in 1966 In 1966 the State Government in the Electricity Department issued a direction to the Board under section 78-A of the Electricity (supply) Act to adopt replacement scales prescribed by the State Government and to give such facilities to its employees as were being given to the Government servants under the decisions taken by the State Government in regard to the recommendations of the Second Pay Revision Committee the petitioners contend that this was a violation of the undertaking given to them by the State Government According to the petitioners, the State Government had been asking the Board to make them available the Service records of the members of the temporary staff of the Electricity Department, transferred to the Board for the purpose of deciding as to which of them were to be made permanent in the posts held by them, but for one reason or the other the Board had been putting off the matter, although the Board sent recommendations to the State Government in regard to other categories of the transferred employees. The petitioners have, therefore, filed this application for a writ of mandamus, as the matter has been hanging fire for the last several years in spue of demands made by the petitioners to the Board and despite the directions issued by the State Government in this regard.
(3.) The application has been opposed by the Board as well as the State Government, who have contested the case of the petitioners by filing separate counter-affidavits. In the counter-affidavit filed on behalf of the Stare of Bihar it has been contended that the services of a number of staff both permanent and temporary including staff engaged on contract and work-charged establishment were placed at the disposal of the Board under the terms and conditions laid in Government letter No 2959/Elec. dated the 27th of March, 1953. The Stand of the State Government is that in terms of the Government decisions only permanent Government servants of the Electricity Department continued to enjoy under the Board the same service conditions in respect of pay, increments leave, promotion and discipline as under the State Government, and that there was no guarantee in regard to temporary employees who would not be made permanent by Government by the 30th of September, 1958 or by a funner extended period of six months. Since no order was passed by the Stare Government to make the petitioners permanent within the period Contemplated by the aforesaid Government resolution, the services of the petitioners were placed at the disposal of the Board without any pre-condition. The State Government in paragraph-5 of its counter affidavit has referred to three letters hiving been sent by the Electricity Department to the Board in order to give replacement fit series of pay of the Government to the permanent Government servants of the Electricity Department whose services hid been placed at the disposal of the Board. In short, the stand of the State Government is that the petitioners are no longer Government servants and that they are out and out Board's employees ts and thus no writ, as prayed for can be granted against the State Government directing it to give the benefits of permanent Government servants to them.;