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2001 DIGILAW 163 (PAT)

Bachan Kumar Singh v. State Of Bihar

2001-02-20

RADHA MOHAN PRASAD

body2001
Judgment 1. In this writ application prayer on behalf of the petitioner is for quashing the orders dated 28.9.2000 and 4,11.2000 issued by the Managing Director of the Bihar State Food & Civil Supply Corporation, Patna (Respondent no. 3) as contained in Annexures-8 & 9 and 10 & 11 absorbing S/Sri Dhirendra Narayan Jha and Jay Prakash Jha (Respondent nos. 4 & 5) in Class II service of the Corporation, ignoring the claim and seniority or 430 senior employees including the petitioner. 2. It appears that the State Government seeing the poor performance of the State undertakings decided to create a management pool to select M.B.A. degree holders and place them in Class II post of different State Government undertakings. Accordingly, advertisement was issued and in response to it Respondent nos. 4 & 5 along with others had applied for appointment against the existing and further vacancies in Class II post in different functional areas of management under different Public Sector Undertakings of the State of Bihar. They were interviewed by the high level selection committee, whereafter a panel of 131 successful candidates was prepared and the same was published in the news-paper. In course of time, the candidates placed at serial nos. 1 to 107 were adjusted in Class II posts and while the Respondent no. 5 and others waiting for turn to be appointed on Class ll post,the Joint Director of the Bureau informed him and others, placed in between serial nos. 108 and 130 that as Class II posts were not available, they could be appointed as Assistant Godown Manager, which is equivalent to Class III posts in the Bihar State Food and Civil Supplies Corporation (in short the Corporation) and the consent was also asked for from them. The said Respondent and others accepted the said offer on the condition that they would be appointed on Class II posts as soon as vacancies arise in the Corporation or Boards, and according to them the Bureau accepted the said condition and later they were also assured that they would be absorbed in Class II posts as soon as vacancies arise. The said persons were appointed in the year 1983 and kept on trying for their adjustment against Class II post. The said persons were appointed in the year 1983 and kept on trying for their adjustment against Class II post. Later when some more candidates were appointed from the panel except them and few others despite several posts lying vacant in different undertakings in the State of Bihar, they filed C.W.J.C. No. 1819 of 1986 in this Court seeking direction to the concerned authorities to consider their case for appointment to Class II posts in different State Government undertakings. The Managing Director in the counter affidavit filed in the said case denied about any assurance given to them and stated that they were given offer for appointment in Class III post, which they accepted and joine He also expressed difficulty in appointing/ promoting the said Respondent and others to Class II post as there are several persons above them in seniority of Assistant Godown Manager for their consideration on Class II post. As regards eight of the writ petitioners of the said case (including Respondent no. 4 herein) other than petitioner no. 2 (who is Respondent no. 5 herein), he expressed their inability to even consider their cases for appointment/promotion to Class II posts in view of serious allegations regarding embezzlement of foodgrains to the tune of several lacs of rupees. However, they fairly stated that they may consider the case of petitioner no. 2 (who is Respondent no. 5 herein) for appointment to Class ll posts in any of the undertakings of the State of Bihar as and when the requisition is made by such undertakings, keeping in view his name being there in the panel for appointment to Class II posts and there being no adverse entry/allegation pending against him so far. Having regard to the said facts and circumstances, the Division Bench vide order dated 20.11.1996, contained in Annexure-2, did not feel persuaded to grant any relief to the said writ petitioners except petitioner no. 2, namely, Jai Prakash Jha, who is Respondent no. 5 herein, for whom in view of the aforementioned fair stand of the Chairman of the Bureau and the Managing Director of the Corporation, directed that his case for appointment in Class II posts may be considered as and when requisition is sent by any of the Public Undertakings of the State of Bihar in future and disposed of the writ petition accordingly. 3. 3. It appears that later the matters regarding absorption/regularisation of Respondent nos. 4 & 5 in Class II post were again taken up, but in absence of the recommendation by the Bureau they were not provided with the appointment and Respondent no. 5, thus, filed C.W.J.C. No. 931 of 1998 in this Court, in which on 27.7.2000 the petitioner of the said case filed a supplementary affidavit enclosing two letters dated 6.12.1999 and 13.4.2000. By the first letter the Bureau with reference to earlier two letters of the Corporation and the direction of the Court as referred to above, asked the Corporation to forward the name of the petitioner of the said case and by second letter dated 13.4.2000 the Corporation forwarded the matter to the Chairman of the Bureau. Accordingly, this Court vide order dated 27.7.2000, contained in Annexure7, remitted the matter back to the Bureau of Public Enterprises to take a decision in respect of adjustment of the petitioner of the said case and to forward the decision to the Corporation, and the authorities of the Corporation were directed to act on such recommendation. The said writ application was accordingly disposed of. Thereafter the impugned orders have been passed. 4. Learned counsel for the petitioner has submitted that the impugned orders insofar as it relates to Respondent no. 4 are bad in law as well as contrary to the order of this Court in the writ petition filed by him along with others, contained in Annexure-2, wherein this Court did not feel persuaded to grant any relief to him. It is submitted that in fact there was no question of absorption/regularisation of the said Respondents 4 & 5 on Class II post as they never held the said post prior to the issuance of the impugned orders. They were sirply appointed as Assistant Godown Manager and joined in that capacity much after the petitioner who joined on 1.1.1975. According to him, Respondent nos. 4 & 5 were appointed as Assistant Godown Manager in the year 1983 and they joined the said post on 30.1.1983 and 4.6.1983 respectively. In the gradation list, petitioner occupies 4th position by virtue of his appointment in the year 1974 and joining on 1.1.1975 whereas Respondents nos. 4 & 5 occupy 431st and 434th position respectively by virtue of their appointment in the year 1983. In the gradation list, petitioner occupies 4th position by virtue of his appointment in the year 1974 and joining on 1.1.1975 whereas Respondents nos. 4 & 5 occupy 431st and 434th position respectively by virtue of their appointment in the year 1983. He submitted that the petitioner being senior to the said Respondents was entitled for consideration of his case for promotion/absorption/regularisation whatever has been given to Respondent nos. 4 & 5 in preference to them, more so because his service record has throughout been satisfactory and nothing adverse has been ever communicated to him. According to the learned counsel, pick and choose method adopted by the Respondent-Corporation is wholly arbitrary and violative of Article 14 of the Constitution besides being in violation of the procedure laid down by the Government resolution no. 166 dated 16.2.1990. 5. A counter affidavit has been filed on behalf of the Corporation and its official (Respondent nos. 1 & 2), and also on behalf of Respondent nos. 4 & 5 separately to which separate rejoinder have been filed on behalf of the petitioner. 6. Learned counsel for the Corporation has submitted that the Corporation has acted simply on the direction of the Bureau and there is no illegality in that in view of the order of this Court passed in the earlier writ case directing for consideration of the case of Respondent no. 5. It is submitted that as Respondent no. 4 was above Respondent no. 5 in the panel his case has also been considered. 7. Mr. Mukherjee, learned Senior Counsel appearing for Respondent no. 4 has submitted that the appointment of Respondent no. 4 has been made in pursuance to the requisition dated 6.12.1999 sent by the Bureau of Public Enterprises to the Managing Director of the Corporation in the light of the order of this Court, contained in Annexure-2, and, thus, there is no illegality in the impugned orders. He submitted that it is true that in the order, contained in Annexure-2 direction for consideration of the case of Respondent no. 5 was only given, but since Respondent no. 4 was above him in the panel his case has also been considered in the light of the said direction of this Court and they have been provided with the appointment. 5 was only given, but since Respondent no. 4 was above him in the panel his case has also been considered in the light of the said direction of this Court and they have been provided with the appointment. He further submitted that the petitioner has no locus standi to challenge the validity of the impugned orders of absorption of Respondent nos. 4 & 5 as he did not even possess the minimum qualification of degree in M.B.A. for appointment on Class II post. In support of this he referred to the decision of the Supreme Court in the case of The State of Jammu & Kashmir V/s. Triloki Nath Khosa, reported in A.I.R. 1974 Supreme Court 1. 8. Mr. Pradhan, learned counsel appearing for Respondent no. 5 has submitted that the case of Respondent no. 5 stands on completely different footing as in his case, this Court also in its first direction, contained in Annexure-2 directed for consideration of his case for appointment in Class II post as and when requisition is sent by any of the Public Undertakings of the State of Bihar in future, and in the subsequent direction, contained in Annexure-7, this Court after taking notice of the requisition dated 6.12.1999 (Annexure-5) sent by the Bureau of Public Enterprises remitted the matter back to the Bureau to take decision in respected of his adjustment, and to forward the decision to the Corporation and the authorities in the Corporation were directed to act on such recommendation. It is submitted that the Respondents have accordingly acted and the Respondent-Corporation has appointed him vide Annexure-11. Thus, according to him there is no illegality in the appointment of Respondent no. 5. 9. In reply, Mr. Prasad, learned counsel for the petitioner has referred to paragraph 11 of the. counter affidavit filed on behalf of the State of Bihar and Bureau of Public Enterprises (Respondent nos. 1 & 2) in which it is stated that no requisition for selection of the candidates has been received as yet in the Bureau on the basis of resolution no. 166 dated 12.2.1990. A true copy of which has been annexed as Annexure-1 to the writ petition. It is, thus, submitted by him that in fact, even the appointment of Respondent no. 5 has not been made in pursuance to any requisition sent by any of the Public Undertakings of the State of Bihar. 166 dated 12.2.1990. A true copy of which has been annexed as Annexure-1 to the writ petition. It is, thus, submitted by him that in fact, even the appointment of Respondent no. 5 has not been made in pursuance to any requisition sent by any of the Public Undertakings of the State of Bihar. It is also submitted by the learned counsel for the petitioner that there is no rule brought on record to show for filling up Class Il post especially by way of absorption/regularisation except the Government resolution, contained in Annexure-1, which only provides for the procedure for direct appointment and also prescribes for minimum qualification of degree in M.B.A. He submitted that no procedure for appointment in pursuance to the said Government resolution was ever undertaken, and the Respondent nos. 4 & 5 are purported to have been absorbed/regularised in Class II post even though they never held the said post before their said so-called absorption/regularisation. Thus, according to him, the reference to minimum qualification by the learned counsel for the Respondent is wholly misplaced and has got no relevance to the facts of the present case. It is submitted that in absence of any rule, the only permissible mode for consideration of the case of Respondent nos. 4 & 5 was by way of promotion on the basis of seniority. 10. This Court finds force in the submission of the learned counsel for the petitioner. It is not the case of the Respondents that the procedure for their so-called absorption/regularisation was undertaken in pursuance to the Government resolution contained in Annexure-1, which relates to direct recruitment. Learned counsel for the Respondents have neither been able to show that there is any rule for absorption/regularisation of the Respondents who are holding Class III post against Class II post nor they have been able to show that there is any rule/decision of the competent authority prescribing minimum qualification for consideration of the case for promotion. Even as per the direction given by the Division Bench of this Court, contained in Annexure-2, the case of Respondent no. 5 was only to be considered and that too on requisition being sent by any of the public undertakings of the State of Bihar when according to the counter affidavit of Respondent nos. 1 & 2, no such requisition was ever sent. 5 was only to be considered and that too on requisition being sent by any of the public undertakings of the State of Bihar when according to the counter affidavit of Respondent nos. 1 & 2, no such requisition was ever sent. Even in Annexure-5, which has been relied upon by the learned counsel for the Respondent in support of their claim that requisition was sent by the Bureau, there is nothing to indicate that any requisition was sent by any of the Public Undertakings of the State of Bihar for appointment in Class II post. In fact, the Bureau in the said letter has only referred to its various communications between the Corporation and the Bureau and in the last paragraph has simply called for opinion from the Managing Director of the Respondent-Corporation about the involvement of the financial liability in absorption of the said Respondents. In any view of the matter, the impugned orders of absorption/regularisation of Respondent no. 4 cannot be sustained as it is neither an appointment made after following the procedure laid down in Government resolution contained in Annexure-1 nor can be held to be a case of promotion on consideration of the cases of senior persons by following the principle of seniority in absence of any Rule in that regard. Thus, this Court finds it difficult to uphold the validity of the impugned orders absorbing/regularising Respondent nos. 4 and 5 on Class II post. Moreover, this Court has failed to appreciate that on the earlier occasion the stand of the Corporation itself was that there was serious allegation against Respondent no. 4 and other petitioners of the earlier writ petition being C.W.J.C. No. 1819 of 1986 regarding embezzlement of foodgrains to the tune of several lacs of rupees by them in the Corporation, which appears to have been completely ignored while passing the impugned orders, as it is not the case of the Respondent- Corporation that he was later exonerated of the said allegations. 11. in the result, the writ application is allowed, but without costs. The impugned orders, contained in Annexures-8 & 9 and 10 & 11 are quashed. The Respondent-Corporation will be at liberty to fill up the vacant posts afresh in accordance with law.