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2001 DIGILAW 443 (PAT)

Bharat Prasad v. State Of Bihar

2001-05-17

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. This writ petition is directed against the order of the Commissioner-cum-Secretary, Department of Water Resources, Government of Bihar, contained inMemo No. 533 dated 10.3.2000, by which the claim of the petitioner to confirm him on the post of Jeep Driver has been rejected, and for other consequential reliefs. The relevant facts are as follows. 2. The petitioner was appointed as Khalasi in a work charged establishment, to be precise, Tirhut Canal Division No. 2, Bettiah, in the then Irrigation now Water Resources Department on 22.5.73. Applications were invited from the employees working in the work charged establishment holding driving licence for direct recruitment on the post of Jeep Driver by the Chief Engineer, Irrigation Motihari. The Selection Committee constiuted by the Chief Engineer considers) the cases of 57 candidates, 22 of then were selected. However as three of tehn were posted outside the jurisdiction of tN Chief Engineer, Irrigation, Motihari and three were employed in the regular estab lishment, the Committee finally prepared a panel of 16 candidates including the petitioner who was placed at serial no. 2 On 27.4.81, a memorandum to this effect was put up for orders by the Member Secretary of the Selection Committee. Or 16.5.81 order for appointment was issued On 23.5.81 the petitioner joined the post While he was working on the post of Jeer Driver, on 1.10.85 he was confirmed or the post of Khalasi in the regular estab lishment in terms of the policy decision or the State Government contained in lette No. 3058 dated 22.10.84 of the Finance Department. On 12.10.87 orders were is sued vide Annexures 7 and 8 allowing in crements with effect from 22.5.82 i.e after completion of one years service and accordingly fixing his pay on the pos of Driver. However on 30.10.87 (on 3.10.87) the same Executive Engineer who had issued Annexures 7 and 8 communicated vide Annexure 9 confrmtion of the petitioner on the post of Khalas vide order dated 1.10.85 (supra). The case of the petitioner is that in the mean time on 11.2.86 and 19.3.86 the Superin tending Engineer of the Circle requesterd the Chief Engineer to make modification in the order dated 1.10.85 by which the petitioner had been confirmed on the post. of Khalasi, and on 18.6.86 the petitioner too made representation in that regard. The case of the petitioner is that in the mean time on 11.2.86 and 19.3.86 the Superin tending Engineer of the Circle requesterd the Chief Engineer to make modification in the order dated 1.10.85 by which the petitioner had been confirmed on the post. of Khalasi, and on 18.6.86 the petitioner too made representation in that regard. Instead, on 30.6.88 the petitioner was transferred to Masan Canal Division No 1, Ramnagar on the post of Truck Khalasi. From the records it appears that on 9.7.88 he was relieved from the post of Jeep Driver, Tirhut Canal Division No. 2, Bettiah. 3. The petitioner instituted Title Suit No. 198/88 before the Munsif, Bettiah. The court by order dated 18.3.89 restrained the defendants from transferring the petitioner. Miscellaneous Appeal No. 16/89 preferred by the defendants was dismissed on 21.3.91. The order of injunction however was set aside by this Court in Civil Revision No. 1191/91 on 20.5.93. The petitioner thereafter submitted his joining initially in Tirhut Canal Division at Bettiah, and later in Masan Canal Division at Ram Nagar, and then again at Bettiah which were not accepted on one ground or the other. After reports were submitted by the concerned Executive Engineer and Superintending Engineer, on 2.5.94 the Chief Engineer issued an order in terms of which the petitioner joined in the Masan Canal Division No. 1 at Ramnagar which was accepted on 28.5.94. On 24.6.94 he filed representation. He came to this Court in CWJC No. 11465/97 for quashing of the order as contained in letter No. 1477 dated 3.10.87 by which confirmation on the post of Khalasi vide order dated 1.10.85 (Annexure 6) had been communicated to him. By order dated 26.10.99, disposing of the writ petition, this Court directed the petitioner to file representation in respect of his claim which he did on 12.11.99. The impugned order dated 10.3.2000 has been passed on the said representation. 4. The case of the respondents is that as the petitioner was initially engaged on the post of Khalasi in a work charged establishment he could not be regularised/appointed on the post of Driver. Reference has been made to letter nos. 941 dated 19.2.81, 6073 dated 26.9.81 and 517 dated 2.4.83 of the Irrigation Department, enclosed as Annexures A, B and C to the counter affidavit. Reference has been made to letter nos. 941 dated 19.2.81, 6073 dated 26.9.81 and 517 dated 2.4.83 of the Irrigation Department, enclosed as Annexures A, B and C to the counter affidavit. It is said that no sooner the Chief Engineer realised the mistake he issued order on 1.10.85 regularising the petitioner on the post of Khalasi. The order was assailed by the petitioner in Title Suit No. 198/88 which was eventually dismissed after the injunction order was set aside by the High Court in C.R. No. 1191/91. 5. From the letters referred to above, Annexures A, B and C to the counter affidavit, it appears that the State Government took a policy decision to regularise the employees of the work charged establishment appointed up to 21.8.75 on regular vacant posts in the Regional Establishments on the basis of seniority and qualification. Such regularisation was to be made on equivalent posts so that regularisation does not become a means of promotion. 6. In the instant case two things happened. On or about 27.4.81 pursuant to advertisement limited to the employees working in the different work charged establishments, and selection made by the Selection Committee, 16 work charged employees including the petitioner possessing necessary qualification were appointed on the post of Driver but in the work charged establishment. This is evident from the memorandum dated 27.4.81 (Annexure 2). Three candidates were initially selected from amongst the 57 candidates, who had submitted their applications, were finally not considered for appointment because they were already employed in regular establishment, and as per the policy of the Government while work charged employees could be regularised in regular establishment but not the vice versa. 7. The second thing that happened was that on 1.10.85 the petitioner was regularised on the post of Khalasi but in the regular establishment. In fact the post itself was converted into a regular post in the regular establishment. That was a general order In respect of large number of work charged employees and this was apparently done in accordance with the policy decision to regularise the service of such work charged employees who were appointed prior to 21.8.75 and had put in 5 years of satisfactory service. 8. In a sense, there was no conflict between the two orders. By the former order the petitioner was appointed on the post of Driver in the work charged establishment. 8. In a sense, there was no conflict between the two orders. By the former order the petitioner was appointed on the post of Driver in the work charged establishment. By the latter order he was regularised on the post of Khalasi on which he was initially appointed in the regular establishment. I do not find any error in the latter order. Apparently that was in accordance with the letters dated 19.2.81, 26.9.81 and 2.4.83 referred to above. The point is whether the former order suffers from any error. 9. While the Government orders contained in the letters referred to above barred regularisation on higher post in the regular establishment, no Government order has been brought to my notice which prohibited fresh appointment on another post in the work charged establishment itself. Apparently it was a case of fresh appointment on the post of Driver for which applications had been invited foilowed by selection by a Selection Committee under the authority of the Chief Engineer. 57 persons submitted their applications out of whom 22 were initially selected while 16 only including the petitioner were appointed. No error in the selection was pointed out to the Court. Perhaps there was need to Drivers in the different work charged establishments falling in the jurisdiction of the Chief Engineer, Irrigation, Motihari. 10. The selection was made in the year 1981, and at no point of time either the selection or the appointments were cancelled. The order dated 1.10.85 in my opinion was an independent order in respect of regularisation of the work charged employees in the regular establishment. I do not find any conflict between the two. The petitioner continued on the post of Driver at least till 1993 (C.R. No. 1191/91 was allowed on 20.5.93). In the meantime increments were allowed and accordingly pay was fixed on the post of Driver on 12.10.87 i.e. after order dated 1.10.85 was issued. After injunction order was set aside and he joined the post of Khalasi, per force, on 28.5.94 he made representation on 24.6.94. He came to this Court-in CWJC No. 11467/97 which was entertained (even though he had earlier chosen the remedy of suit which was allowed to be dismissed). 11. After injunction order was set aside and he joined the post of Khalasi, per force, on 28.5.94 he made representation on 24.6.94. He came to this Court-in CWJC No. 11467/97 which was entertained (even though he had earlier chosen the remedy of suit which was allowed to be dismissed). 11. Where appointment is made by a Selection Committee and no error is pointed out in the selection process and the appointees continue on the post for long period it would not be proper to disturb the appointment. Having regard to the fact that the present case relates to a work charged establishment it may be relevant to point out that it is not the case of the respondents that the Drivers are not required. Nothing has been stated to suggest that the performance of the petitioner as Driver was not satisfactory. The post of Driver requires special knowledge and technical expertise, and where a person has rendered satisfactory service for long period it may not be in the interest of the establishment to remove him from the post on the basis of technicalities. 12. In the result, for the reasons mentioned above, I would quash the impugned order of the Secretary dated 10.3.2000 contained in Annexure 17 and direct him to consider the case of the petitioner afresh. 13. This writ petition stands disposed of.