Rabindra Prasad v. State Of Bihar — 1994 DIGILAW 281 (PAT)

Judgment Radha Mohan Prasad, J. 1. Both the writ petitioner have been heard together and are being disposed of by this common judgment. 2. In both the writ petition the prayer is to quash the Govt. notification dated 8-8-1991, which, in the first writ application is annexure 8 and in the second writ application is annexute 7, issued by the Deputy Secretary to the Government in Agriculture Department of the State of Bihar (respondent no.3) appointing respondent No.5 in the Category II (Agriculture Engineering)of Bihar Agriculture Service class I and also to quash the communication dated 5-4-1991 of the Bihar Public Service Commission recommending the case of respondent No.5 for the said appointment. 3. The petitioner in the first writ application, who was initially appointed to the Bibar Agriculture Service class II in the year 1965 was promoted in the Junior Selection Grade of Bihar Agriculture Service Category II (Agriculture Engineering) vide notification dated 28-11-1991 (annexure 1) and is in bihar Agriculture Service class I and the petitioners in the second writ application are in the category II of Bihar Agriculture Service class II, on which post petitioner Nos.1 to 3 of the said writ application on their direct recruitment, joined the service on 28-5-1976, 12-1-1978 and 8-3-1978 and petitioner Nos.4, 5 and 6 on their promotion joined the said service on 1-1-1977, 20-8-1976 and 25-3-1991 respectively. 4. The case of the petitioners is that respondent No.5 joined the Bihar state Diary Development Corporation Ltd. which was a Government Company registered under the Companies Act and used to be governed by its own memorandum and Articles of Association. It is stated that respondent No.5 was directly recruited in the Corporation and was not in the service of any other department of the State of Bihar. Later, the Government of India formulated a scheme for diary development known as Operation Flood II, whieh was also approved by the State of Bihar, for which purpose the Bihar state Co-operative Milk Federation Ltd. came into existence, It is further stated that a high power committee was constituted for submitting the rehabilitation plan for Diary Corporation which recommended that the scheme should be conducted and implemented by the aforementioned Milk federation. On the basis of the said recommendation the State Government by its resolution dated 10-2-1984, a photo copy of the printed copy whereof has been annexed as annexure 1, resolved that all assets and liabilities of the diary Corporation shall be transferred to the Milk Federation. It was further resolved that the Diary Corporation shall be liquidated after its transfer to milk Federation. As regards the Officers and employees, the said resolution provided for transfer of their services to the Milk Federation according to their utility. Accordingly, the employees of the Corporation were divided into three categories. The first category was in relation to the employees, who were suitable for absorption in the Milk Federation : second category pertained to employees, who were to be absorbed in the Animal Husbandry department, Agriculture Universities and other institutions and the third category pertained to employees who were not fit for absorption, the services of the employees in the last category were decided to be terminated after giving retrenchment benefits. It is stated that after assessment of assets and liabilities and also for transfer of employers the State Government by the said resolution constituted a High Power Committee under the Chairmanship of chairman of Bureau of Public Enterprises with the Commissioner-cum-Secretary, animal Husbandry and Fisheries Department, Milk Commissioner and Secretary and Additional Finance Commissioner, nominee of Industrial development Commissioner, Managing Commissioner. Bihar State Diary corporation Ltd. and the Managing Director of the aforesaid Federation as its members It is further stated that the said Committee never recommended the case of respondent No.5 for absorption in any of the posts of any of the departments of the State of Bihar, but the Minister of State wrote to the then agriculture Minister for deputation of respondent No.5 in the Sone Command area Development Agency and accordingly, the matter was processed and by notification dated 25th September, 1984 respondent No.5, who was working as Assistant Project Engineer in the Diary Corporation was deputed to Sone command Area Agency against the post of Dy Director of Soil and Water management (vide annexure 3 ). According to the petitioner, after the said deputation of respondent No.5, the respondent State wrote to the Bihar public Service Commission seeking recommendation for this absorption in category II of the Bihar Agriculture Service class I, vide letter dated 20-4-1987 as contained in annexure 4 to the writ application. According to the petitioner, after the said deputation of respondent No.5, the respondent State wrote to the Bihar public Service Commission seeking recommendation for this absorption in category II of the Bihar Agriculture Service class I, vide letter dated 20-4-1987 as contained in annexure 4 to the writ application. It is alleged that while seeking the said recommendation wrong facts were furnished to the commission and facts were extorted inasmuch as, according to the petitioners the absorption was to be effected on the recommendation of the High Power committee under the resolution (annexure 2) which never recommended the case of respondent No.5 for such absorption. 5. Further it is alleged that the fact that under the rules the post of bihar Agriculture Service class I are to be filled up by the promotion of the members of the Bihar Agriculture service class II was completely suppressed in the said communication to the Commission. It is further stated that the departmental promotion Committee by its minutes dated 20-12-90 recommended that case of the petitioner of the first case for promotion to the Junior selection grade of the Bihar Agriculture Service class I with effect from 1-4-1981 along with six others, who were also in Bihar Agriculture Service class ii. According to the petitioners, the opinion expressed in the letter dated 20-4-1987 to the Commission that the post was vacant in the bihar Agriculture Service, class I for appointment of respondent No.5 by absorption was absolutely false. It is also alleged that while the recommendation of the commission was sought for the respondent No.5 was given ad hoc appointment in category II of the Bihar Agriculture Service class I for six months or till his appointment on regular basis was made on the recommendation of the Commission, whichever is earlier. A photo copy of the said notification dated 25th May, 1987 appointing respondent No.5 on ad hoc basis has been annexed as annexure-6 to the writ application. Later, it appears that on 5-4-1991 the Commission made its recommendation for absorption of respondent No, 5 whereafter, the impugned notification dated 8-8-1991 was issued purporting to absorb him in the Junior selection grade in category II (Agriculture Engineering) of the Bihar Agriculture Service class I with retrospective effect from 26-9-1984. Later, it appears that on 5-4-1991 the Commission made its recommendation for absorption of respondent No, 5 whereafter, the impugned notification dated 8-8-1991 was issued purporting to absorb him in the Junior selection grade in category II (Agriculture Engineering) of the Bihar Agriculture Service class I with retrospective effect from 26-9-1984. It is contended that although the memorandum placed before the Council of Minister for the said appointment clearly stated that there is no provision for direct recruitment to the Junior Selection grade of the Bihar Agriculture Service, yet respondent No.5 has been illegally absorbed in the said service against the post for which the personnel and administrative Reforms Department of the State Government had given poster clearance for filling up the same by promotion of the members of the bihar Agriculture Service class II. 6. Further; it is contended that the said appointment has been made without following any procedure inasmuch as the general rule for appointment inviting applications from all eligible candidates was also not followed. It is alleged that respondent No.5 has been picked up for appointment in utter disregard of the Constitutional mandate as provided in Articles 14 and 16 of the Constitution of India, besides ignoring the procedures laid down in rules contained in notification No.1923-D dated 9th July, 1945 by government of Bihar in the Development Department, which was framed in exercise of the powers conferred by clause (b) of Sub-section (1) of Section 241 of the Government of India Act 1935 by his Excellency the Governor for the regulation of recruitment of Bihar Agriculture Service class I and class II and the general provincial service and special posts outside these cadres. 7. Mr. Prasad, learned Counsel for the petitioner submitted that the said rule is DOW a rule framed under Article 309 of the Constitution of India by virtue of general notification No.3555-34-27/50 dated 15th April, 1950. 8. Separate counter affidavit has been filed on behalf of respondents 1 to 3 and respondent No.5 in the first case (C. W. J. C. No 8745/91 ). In the counter affidavit respondents 1 to 5 inter alia stated that as per the policy decision of the State Government contained in annexure 2 the case of respondent No.5 was recommended by the Bihar State Diary Corporation for absorption in the Agriculture Department, because his basic qualification was b. Sc. In the counter affidavit respondents 1 to 5 inter alia stated that as per the policy decision of the State Government contained in annexure 2 the case of respondent No.5 was recommended by the Bihar State Diary Corporation for absorption in the Agriculture Department, because his basic qualification was b. Sc. Argicultural Engineering in 1st division, whereafter the Agriculture department considered his case and posted him as Dy. Director, Agriculture (Soil) and water Managament) on deputation in the Sone Command Area development Agency. The State Government also decided to absorb respondent No.5 in the cadre of Agriculture Department againat class I post of Bihar Agriculture Service category II (Engineering) for which the commission was requested to send its recommendation. Thereafter, in anticipation of the recommendation the State Government appointed him on ad hoc basis for the period of six months, which was extended five times each for a term of six months from 25th November, 1967 to 24th May.1990. Thereafter the recommendation of the Commission was received and accordingly, the notification of absorption of respondent No.5 in the Bihar Agriculture service was issued with a condition that the seniority of the officers in the agricultural Department working prior to the date of absorption will stand above him. It is further stated that respondent No.5 was accordingly appointed temporarily with retrospective effect from 26th September, 1984 i. e. the date of his joining on the post of Dy. Director Soil and Water management in Sone Command Area Development Agency. 9. In reply to the stand of the petitioners that the matter was never referred to the High Power Committee as was required in the Government resolution contained in annexure 2 it is stated that the Committee was not constituted with regard to the absorption of any particular officer in the department, rather it was constituted for fixation of salary etc. According to the stand of the State, and its officers in the counter affidavit the appointment of respondent No.5 against the class I post of the Bihar Agriculture service is neither a case of direct recruitment nor a case of promotion, but it is a case of absorption after the concurrence of the Public Service Commission. 10. The fact that roster clearance was obtained from the Department of personnel and Administrative Reforms for promotion of class II officers of Engineering Category has been admitted in para 26. 10. The fact that roster clearance was obtained from the Department of personnel and Administrative Reforms for promotion of class II officers of Engineering Category has been admitted in para 26. bat it is stated that the State Government took policy decision to reserve one post for absorption of respondent No.5. According to respondents there has been no violation of the mandate of Articles 14 and 16 of the Constitution of India as respondent No.5 has been absorbed after the concurrence of the Commission and that it was liability of the State Govt. in view of the policy decision to absorb the services of earstwhile employees of the Dairy Development corporation.10. In para 18 of the counter affidavit it is however, stated that pursuant to the policy decision, the petitioner was absorbed first and thereafter appointed after the concurrence of the Bihar Public Service Commission. 11. The official respondents in their counter affidavit has also stated about filing of another writ application in an identical case which was registered as C. W. J. C.3087/92 and disposed of by this Court vide order dated 27th November.1992 with a direction to the Agriculture Production commissioner to dispose of the representation of the petitioner of the said case by a reasoned order within two months. The said representation is stated to have been disposed of by the Agriculture Production Commissioner by reasoned order dated 23rd January, i993 in which he has held that the case of respondent No.5 is of absorption and that the concept of petitioner of the said case that he had been appointed is not correct. 12. In the counter affidavit filed on behalf of respondent No.5, besides reiterating most of the facts stated on behalf of respondent Nos.1 to 3, it is stated that the scale of pay in the grade of Assistant Dairy Engineer is equivalent to that of category II (Agriculture Engineering) of Agriculture service Class I. The Managing Director as well as the Chairman of the dairy Corporation requested that Agriculture Department to take steps for absorption of respondent No.5 in terms of the Government Resolution dated 10th February, 1984 (annexure 2 ). Thereafter the file moved in the Agriculture department for adjustment/absorption of Respondent No.3 and accordingly by notification dated 25th September, 1984 the service of respondent No.5 was placed on deputation in the Sone Command Area development Agency with a clear direction to take steps for his absorption in the cadre of Bihar Agriculture Service. The petitioners were aware of the said fact, but they never raised any objection. Thus, it is contended that now at this stage the petitioners are estopped from raising any objection in regard to absorption of respondent No.5 in the Bihar Agriculture Service. In regard to the notification dated 25th May, 1990 whereby extension of the ad hoc appointment of respondent No.5 was granted only upto 24th May, 1991 or till regular appointment on the recommendation of the Commission is made, wherever is earlier, it is contended that as the Commission had recommended the case of respondent No.5 for absorption and the formal notification for his absorption with effect from 25th September, 1984 was also giving issued on 8th March, 1991 no further notification was issued any further extension to him. It is contened that when respondent no.5 was permanently absorbed in the Bihar Agriculture Service class I, the petitioner was not in the said service, nor the petitioner was in the scale in which respondent No.5 has been absorbed by the impugned notification. Thus, according to respondent No.5, the petitioners could not have made any grievance. It is also claimed that even if the impugned notification is deemd to be effective prospectively. still respondent no.5 is entitled for counting his seniority from the year 1973, i. e. the date on which he was inducted in such equivalent rank and cadre in the Dairy development Corporation, 13. Mr. It is also claimed that even if the impugned notification is deemd to be effective prospectively. still respondent no.5 is entitled for counting his seniority from the year 1973, i. e. the date on which he was inducted in such equivalent rank and cadre in the Dairy development Corporation, 13. Mr. Chandramuli Kumar Prasad, learned Counsel for the petitioners has submitted that the appointment of respondent No.5 by the impugned order by way of absorption in Bihar Agriculture Service, class I is not sustatinable in view of rule 4 of the aforementioned Rules for the regulation of Recruitment to the Bihar Agriculture Service class I, class II and the General Provincial Service and Specialists outside this cadre, which was framed in exercise of powers conferred by clause (b) of sub-section (1) of Sec.241 of the Government of India Act.1935, which by virtue of the notification No.8051 dated 3rd July.1963 issued by the Appointment department of the Government of Bihar in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, acuired the status of a rule framed under proviso to Article 309 of the Constitution of India, as under clause 2 (b) of the said notification all service rules and orders in bihar in force before 26th Junuary, 1950 are deemed to be made under article 309 of the Constitution of India. In my opinion Mr. Prasad is right in his submission that the aforementioned Rules contained in the Notification which was issued by the Government of Bihar Development Department on 9th July, 1945 shall be deemed to be Rule made under Article 309 of the constitution. 14. It was submitted by the learned Counsel for the petitioners that in the aforesaid rules there are only two modes for appointment to the Bihar agriculture Service class I i. e. either (a) the procedure contained in Part II of the said rule or (b) by promotion and transfer of Officer already in service of the Government in accordance with the proceduce contained in Part III. It was submitted that the admitted case of the party is that in making appointment of respondent No.5 none of the said two modes were followed. Thus, according to him, the appointment of respondent No.5 by absorption was wholly illegal and ultra vires the aforesaid rule. 15. On the other hand, Mr. It was submitted that the admitted case of the party is that in making appointment of respondent No.5 none of the said two modes were followed. Thus, according to him, the appointment of respondent No.5 by absorption was wholly illegal and ultra vires the aforesaid rule. 15. On the other hand, Mr. Mukhopadhya, learned Counsel for the respondent No.5 submitted that the petitioner in his pleadings has not challenged the validity of appointment of respondent No.5 on the aforesaid ground According to him, the pleadings in paras 25 and 27 of the writ petition is that the appointment of respondent No.5 is in violation of the government resolution dated 11-4-1977 contained in annexure 9 whereby and whereunder a complete ban was put on direct recruitment. It was further submitted by the learned Counsel for respondent No 5 that in view of the enactment of the Bihar Aericulture Service Act, 1982 the said rule stands repealed and shall have no effect in the matter of appointment to the bihar Agriculture Service. 16. In reply Mr. Prasad, learned Counsel for the petitioner submitted that it is not in dispute that categorisation which has been done under the aforesaid Validating Act of 1982 was done long back in the year 1953 by executive instructions issued by the State Government which is also evident from section 4 of the said Act and appointments were also made category wise. According to Mr. Prasad, as there appeared to be some infirmity in the aforesaid executive instructions the Bihar Act 44 of 1982 was enacted to validate, regularise and regulate the numerous appointments, confirmation and promotion made by the Department during the post-independence period and on the basis of the circular issued on 13th August, 1953 and 12/14th August, 1954. It has been submitted that the Act simply validates the action taken by the Government under the said two notifications and further only provides that appointments, confirmation and promotions are to be made categorywise separately and that it. shall not be inter-changeable from one category to another. 17. It is relevant to quote the preamble portion of the Act :- "to validate, regularise and regulate the numerous appointments, confirmations and promotions, made by Department of Agriculture, government of Bihar during the post-independence period and on the basis of circular letter nos. D/ag-232/53-Agri-l49, dated 13th August, 1953 and D/ag/032/53-Agri-27658. dated 12th/14th December, 1953 and certain matters connected therewith. 17. It is relevant to quote the preamble portion of the Act :- "to validate, regularise and regulate the numerous appointments, confirmations and promotions, made by Department of Agriculture, government of Bihar during the post-independence period and on the basis of circular letter nos. D/ag-232/53-Agri-l49, dated 13th August, 1953 and D/ag/032/53-Agri-27658. dated 12th/14th December, 1953 and certain matters connected therewith. Whereas, during the post-independence period, the development activities in regard to Agriculture were enlarged with consequential increase in the cadre strength of the Bihar Agricultural Service ; whereas, for the more efficient and scientific development of agriculture, the posts of Bihar Agriculture Service were divided in a numder of categories on the basis of the disciplines, duties and functions, as set out in schedule I attached herewith ; whereas, in the interest of better specialisation the posts in the different categories were not permitted to be inter-changeable from one category to another and each category remained separate and distinct for the purpose of appointment, confirmation and channel of promotion ; whereas, the above mentioned decisions were communicated through letter Nos D/ag-232/53-Agri-R-149 dated-August 13, 1953 and d/ag 032/53-Agri-27652, dated 12th/14th December 1953 and have been followed ever since. " 18. The said Act has been brought into operation with effect from 12th august 1953. As is evident from clause (iii) of Section (i ). The provisions contained in Sections 3 and 4 of the Act are as follows : - "3. Appointment, confirmation and promotion in each category.-The appointment, confirmation and promotion in each category shall be made separate and distinct aad the posts of the different categories shall not be inter-changeable from the category of another.4. Validity of appointments, confirmations and promotions.-Notwithstanding anything contained to the contrary in any judgment decree or order of any court or any rule all appointments, confirmations and promotions in pursuance of letter no D/ag-232/53-Agri-R.149, dated August 13, 1953 Memo no D/ag/032/52-Agri 27652, dated 12th/14th December, 1953, shall be deemed to have been validly made if this Act were in force on such date or dates. " 19. Section 5 of the Act which deals with the repeals and savings, repealed the Bihar Agricultural Service Ordinance, 1982, i e. Bhiar Ordinance No-34 of 1982. " 19. Section 5 of the Act which deals with the repeals and savings, repealed the Bihar Agricultural Service Ordinance, 1982, i e. Bhiar Ordinance No-34 of 1982. Sub-section (2) of Sec.5 provides that notwithstanding such repeal any action taken or any act done in pursuance of the said Ordinance shall be deemed to have been taken or done under the provisions of this Act as if this Act was in force at the relevant period when such actions were taken or deemed to have been taken. 20. From the perusal of the provisions of the Act it is clear that it does not provide for the mode for recruitment/appointment, confirmation and promotion. The reading of the preamble portion of the Act further makes it clear that the provisions contained in the said Act is only to validate regularise and regulate the numerous appointments, confirmations and promotions made by the Department pursuant to the earlier instructions referred to above and, further it approves the categorisation made bv the state Government under the aforesaid circular. Thus, it is difficult to accept the submissions of Mr. Mukhopadhya, learned Counsel for respondent no.5 that the provisions contained in the 1945 Rules stood repealed by enactment of Bihar Act 44 of 1982. 21. I have already mentioned above that 1945 rule provides for the two modes of appointment and under rule 3 wherever vacancy occurs, the governor shall decide whether it shall be filled by direct recruitment or by promotion. For the direct recruitment the procedure is mentioned in part ii, of the said Rules and for promotion of officers already in Govt service the procedure is mentioned in part III of the said circular. Thus, I am of the view that after a vacancy occurs for appointment in the Bihar Agricultural service class I, Bihar Agriculture Service class II, the General Provincial service and Specialised posts outside the said cadre, the Government has to first decide whether it shall be filled up by direct recruitment or by promotion, only whereafter, the process of filling up of the said vacancy in the manner decided by the Government is to be taken. 22. Mr. 22. Mr. Mukhopadhya, learned Counsel for the respondent No.5 also ventured to submit that as in 1982 Act the mode of appointment, confirmation ond promotion is silent, Government resolution of 1984 as contained in annexure 2 will amount to supplementing the Act in this regard. Alternatively, it was submitted by him that in any view of the matter, as 1945 rule is silent for giving benefits as provided in Government Resolution contained in anuexure 2 to the surplus employees of the Dairy Corporation, it will amount to supplementing the said rules to that extent. I do not find any substance in either of the said two submissions of the learned Counsel appearing for respondent No.5. I have already held above that the Bihar act 44 of 1982 was enacted only for the purpose to validate and regulate the numerous appointments, confirmation and promotion made under the earlier Govt. circulars besides approving the categorisation which was made under the aforesaid notification The only power given even in the said Act to the State Government is that it can add or delete any post from category of posts in schedule I by notification in official Gazette. As regards the mode of recruitment, the said Act does not deal with it and in my opinion, 1945 Rule holds the field. 23. The Government resolution contained in annexure 2 is a general resolution of the State Government dealing with the liquidation of the dairy development Corporation and the manner in which the retrenched employees of the said Corporation are to be adjusted in diffarent departments of the government. In my opinion, by no stretch of imagination it can be held that the Government by its resolution contained in annexure 2 provided for the mode of recruitment in the Bihar Agriculture Service. Thus, I donot find any substance in the submission of the learned Counsel appearing for respondent No 5 that Annexure 2 supplements the 1945 Rules in the matter of recruitment in Bihar Agriculture Service. 24. The 1945 Rule being exhaustive in the matter of providing the mode of appointment/recruitment to the Bihar Agriculture Service, in my opinion, no other mode can validly be adopted for filling up the vacancy occurring in Bihar Agriculture Service Class I, and class II unless the said rule itself is amended. Accordingly, the order of appointment of respondent no. 24. The 1945 Rule being exhaustive in the matter of providing the mode of appointment/recruitment to the Bihar Agriculture Service, in my opinion, no other mode can validly be adopted for filling up the vacancy occurring in Bihar Agriculture Service Class I, and class II unless the said rule itself is amended. Accordingly, the order of appointment of respondent no. S as contained in annexure 8, which admittedly was made without following any of the modes, prescribed in the 1945 Rules cannot be sustained and the same is quashed. The respondents are directed to fill up the vacancy in accordance with law. 25. In the result, the writ application is allowed, but in the facts and circumstances, there shall be no order as to costs. Writ Application allowed.