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2001 DIGILAW 630 (JHR)

Lalan Kumar Choudhary v. State Of Bihar

2001-09-05

M.Y.EQBAL

body2001
JUDGMENT M.Y. Eqbal, J. 1. In this writ application the petitioner has challenged the order passed by the respondent No. 2, the Director. Panchayat Raj cum Joint Secretary, Rural Development Department, Government of Bihar, Patna whereby the appointment of the petitioner on the post of Assistant Engineer in Zila Parishad, Hazaribagh by the then Deputy Development Commissioner cum Executive Officer Zila Parishad has been declared illegal and irregular and a decision was taken for cancellation of the aforesaid appointment and also the order as contained in memo dated 18.5.96 whereby the appointment of the petitioner has been cancelled. 2. In 1983 the petitioner was appointed as Junior Engineer in Zila Parishad. Hazaribagh for execution of work undertaken by the said Zila Parishad under National Rural Employment Programme (in short, the NREP). The appointment was made at daily wages basis. The petitioner continuously worked as junior engineer till 1994. It appears that there were large number of posts of Assistant Engineers available in various Departments of Government of Bihar, which were not of the cadre of Bihar Engineering Services Class II. In that view of the matter the Government of Bihar took a cabinet decision in the meeting held on 16.6.87 for creating post of Assistant Engineer in NREP for those persons who were working on daily wages basis against the lower post of junior engineer and accordingly a decision was taken for appointment at least on ad hoc basis on the post of Assistant Engineer and thereafter for absorption of those engineers. Accordingly a list was prepared by the State of Bihar with respect to junior engineers who were degree holders and were performing duty in NREP in different district of State of Bihar. In the said list the name of the petitioner was included for the district of Hazaribagh. The petitioners case is that on the basis of aforesaid list a number of junior engineers, who were performing duty on daily wages basis, were appointed on ad hoc basis to the post of Assistant Engineer in NREP. Almost all the Junior Engineers (Civil) were appointed in the post of Assistant Engineer except a few including the petitioner. It is stated that the Engineer-in-Chief-cum-Special Secretary of the Rural Development Department, vide letter dated 30.3.89 forwarded the name of the petitioner and one Sri Ajit Kumar Sharma to the Engineer-in- Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department for consideration. Almost all the Junior Engineers (Civil) were appointed in the post of Assistant Engineer except a few including the petitioner. It is stated that the Engineer-in-Chief-cum-Special Secretary of the Rural Development Department, vide letter dated 30.3.89 forwarded the name of the petitioner and one Sri Ajit Kumar Sharma to the Engineer-in- Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department for consideration. When the petitioner was not appointed on the post of Assistant Engineer, he filed CWJC No. 3294/89 before the Patna High Court for regularisation of his services as Assistant Engineer. The aforesaid writ application was disposed of on 26.4.89 directing the Zila Parishad to consider the desirability of ad hoc absorption of the engineers working in NREP scheme within their jurisdiction taking into consideration the policy of the State Government. When the order and direction was not complied with by the respondent, the petitioner filed another writ application being CWJC No. 28/93. A Division Bench of the Patna High Court, vide order dated 28.7.93 disposed of the writ application and directed the Deputy Development Commissioner cum Chief Executive Officer of Zila Parishad to consider the grievances of the petitioner and to dispose of his representation by passing a reasoned order. In the meantime, the Deputy Development Commissioner, without considering the case of the petitioner, appointed respondent No. 4 against the post of Assistant Engineer on ad hoc basis. The petitioner again approached the Patna High Court by filing CWJC No. 3355/93 (R) assailing the aforesaid appointment of the respondent No. 4 and for a direction to the respondents to consider the case of the petitioner for appointment as an Assistant Engineer in terms of the earlier order passed by the Court. While the aforesaid writ application was pending for hearing the respondent No. 3 issued office order dated 1.9.94 in compliance of the order of the High Court and regularise the services of the petitioner by appointing him against a vacant post of Assistant Engineer. The petitioner, thereafter, started working on the post of Assistant Engineer. However, in 1995 another Deputy Development Commissioner joined in Zila Parishad and by his letter dated 31.5.95 addressed to the Director, Panchayat Raj, expressed his opinion that the appointment of the petitioner on the post of Assistant Engineer without making any advertisement and without any roster clearance, was illegal and further he recommended for cancellation of the said appointment. However, in 1995 another Deputy Development Commissioner joined in Zila Parishad and by his letter dated 31.5.95 addressed to the Director, Panchayat Raj, expressed his opinion that the appointment of the petitioner on the post of Assistant Engineer without making any advertisement and without any roster clearance, was illegal and further he recommended for cancellation of the said appointment. On the basis of the same recommendation the respondent No. 2 issued the impugned letter dated 18.5.96 informing the respondent No. 3 that the Government after due consideration held that the appointment of the petitioner as Assistant Engineer by the Deputy Development Commissioner was illegal and irregular. Consequently a final order of cancellation of appointment of the petitioner was issued on 5.7.96. The petitioner challenged the aforesaid order by filing CWJC No. 5806/96 at Patna. The Patna High Court by order dated 16.7.96 passed in CWJC No. 5806/96 directed the parties to maintain status quo. The Patna High Court finally passed an order in 1998 for returning of the writ petition (CWJC No. 5806/96) for presentation before the Ranchi Bench of the Patna High Court and accordingly the instant writ application was filed. 3. In the counter affidavit filed by the respondent Nos. 2 and 3, it is stated that the petitioner was appointed on the post of Junior Engineer under NREP scheme on daily wages basis for a period of three months and he continued as such. In 1994 the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Hazaribagh issued appointment letter to the petitioner for the post of Assistant Engineer only because of the order passed by the Patna High Court in CWJC No. 28/93. However, the matter relating to appointment of the petitioner was enquired by the DDC and it was found that without observing rules and regulations for appointment, the appointment was made by the Personnel and Administrative Department of the Government of Bihar. Neither the advertisement was published nor the names were called from the Employment Exchange. The roster clearance was also not followed. It is further stated that power for appointment on the post of Assistant Engineer Grade II is vested with the Government and DDC had no jurisdiction to appoint the petitioner on the post of Assistant Engineer. Accordingly the appointment of the petitioner has been cancelled. The roster clearance was also not followed. It is further stated that power for appointment on the post of Assistant Engineer Grade II is vested with the Government and DDC had no jurisdiction to appoint the petitioner on the post of Assistant Engineer. Accordingly the appointment of the petitioner has been cancelled. It is further stated that the DDC has power for appointment only in the post of Junior Engineer with the prior approval of the State Government. 4. I have heard Mr. Ganesh Prasad, Sr. Advocate appearing for the petitioner and Mr. R.N. Sahay and Mrs. I. Sen Choudhary, learned counsels appearing for the respondents. 5. Admittedly, the petitioner was appointed on daily wages basis on the post of Junior Engineer in Zila Parishad, Hazaribagh, vide Memo No. 623, dated 31.8.83 for execution of the work undertaken by the said Zila Parishad under NREP scheme. A copy of the appointment letter has been annexed as Annexure 1 to the writ application. The petitioner continuously worked on the said post from 1983 to 1994, i.e. for about 11 years. It is also not disputed that during that period a large number of post of Assistant Engineers (Civil) were available in various Departments of the Government and the State Government also created a number of post of Assistant Engineer for NREP. The State of Bihar took a cabinet decision to regularise/appoint all such Assistant Engineers who have been working on daily wages basis. The uncontroverted statement made in para 11 of the writ petition is that a list was prepared by the State of Bihar with respect to Junior Engineers who were degree holders and performing the duties in NREP scheme in different districts of the State of Bihar. In the said list the name of the petitioner was also included for the district of Hazaribagh. When the petitioners case was not considered for promotion/appointment on the post of Assistant Engineer, he filed CWJC No. 3294/89 before the Patna High Court for regularisation of his services as an Assistant Engineer. In that case, the State of Bihar took a stand that the petitioner was appointed as Junior Engineer by the District Board and not by the State Government and, therefore, the petitioner is not in the employment of State Government and, therefore, it is not a case of discrimination. In that case, the State of Bihar took a stand that the petitioner was appointed as Junior Engineer by the District Board and not by the State Government and, therefore, the petitioner is not in the employment of State Government and, therefore, it is not a case of discrimination. A Division Bench of the Patna High Court, on the basis of stand taken by the State Government, disposed of the writ petition on 26.4.89 observing that the District Board may consider the desirability of the ad hoc absorption of the engineers working under NREP scheme within their jurisdiction. For better appreciation the order dated 26.4.89 passed in CWJC No. 3294/89 is reproduced hereinbelow :-- "26.4.89. This is an application for regularising the petitioner as a Junior Engineer pursuant to his appointment in the year 1983 by the District Development Commissioner who is Executive Officer of the District Board to look after the NRSP Scheme of the District Board on payment of daily wages. According to the petitioner some of his counter parts similarly situated in the State Government as Assistant Engineer on payment of daily wages and were appointed some time in the year 1985 have been regularised as ad hoc Assistant Engineer but the case of the petitioner, who was appointed in the year 1983 as Junior Engineer was not considered for appointment as ad hoc Assistant Engineer. Thus the State has acted discriminately in the matter of absorption and payment of salary. Mr. Madhup, learned counsel for the State contends that the argument of the learned counsel for the petitioner is not correct in as much as the petitioner was appointed by the District Board and not by the State Government. Thus, the services of the petitioner who was appointed by the District Board, cannot be compared with the persons born in the employment of the State Government. As such, there could be no discrimination. Having heard the learned counsel for the parties, we find that this is not the case of discrimination. If the petitioner and the persons born in the State employment are in two different services and, therefore, merely because the State employees have been subsequently absorbed in the State services will not amount to any discrimination so far the petitioner is concerned. We, therefore, do not find substance in the argument of the learned counsel for the petitioner. If the petitioner and the persons born in the State employment are in two different services and, therefore, merely because the State employees have been subsequently absorbed in the State services will not amount to any discrimination so far the petitioner is concerned. We, therefore, do not find substance in the argument of the learned counsel for the petitioner. We, however, observe that the District Board may consider the desirability of the ad hoc absorption of the Engineers working under NREP Scheme within their jurisdiction. In this connection, they should beat in mind the State Policy. It is needless to say such absorption must follow the rule of seniority. With the observations aforesaid the application is disposed of." 6. When the Zila Parishad did not consider the case of the petitioner for a long time, the petitioner then approached the Patna High Court by filing CWJC No. 28/93. The writ petition was disposed of on 28.7.93 by a Division Bench of the Patna High Court by passing the following order :-- "28.7.93. Heard learned counsel for the petitioner and the State. It is stated that there are several regular vacancies of Assistant Engineer available with the District Board, No step is being taken for filling up those vacancies. The petitioner was appointed on daily wages some time in the year 1983 to execute the programme of the Government under NREP. It is further stated that in other department absorption of the Assistant Engineer working on daily wages along with the petitioner is being considered. It appears that the petitioner had moved this Court earlier and a Bench of this Court while disposing of the writ application directed the District Board to consider the grievance of the petitioner. According to the learned counsel, no decision has yet been taken. Having noticed entire facts and circumstances aforementioned, we without expressing our opinion to the merit of the case, dispose of this application with a direction to the Deputy Development Commissioner-cum-Chief Executive Officer, District Board, Hazaribagh, to consider the grievance of the petitioner and dispose of the same by a reasoned order within four months from the date of production of a copy of this order. With the aforesaid, this application is disposed of." 7. With the aforesaid, this application is disposed of." 7. It appears that finally in compliance of the order and direction of the Patna High Court, the case of the petitioner was considered and an office order was issued by the Deputy Development Commissioner-cum-Chief Executive Officer. Zila Parishad, Hazari-bagh whereby the petitioner Was appointed/ regularised on the post of Assistant Engineer. vide office order dated 1.9.94. The petitioner accordingly joined the post of Assistant Engineer and started working as such. It appears that in 1995 another officer joined on the post of Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Hazaribagh. The said DDC of his own, issued Memo No. 50, dated 31.5.95 addressed to the Director, Panchayat Raj, Bihar, Patna informing that the appointment of the petitioner to the post of Assistant Engineer was irregular and without following the rules and procedures. He, therefore, recommended for cancellation of appointment of the petitioner. On the basis of recommendation made by the DDC, the impugned letter was issued by the Director, Zila Parishad for cancellation of the appointment of the petitioner. 8. From the facts, it is clear that in all the earlier writ petitions particularly in CWJC No. 3294/89, the State of Bihar took the stand that the petitioner was not the employee of the State Government rather he is the employee of District Board and, therefore, the case of the petitioner could not be compared with the other Junior Engineers in the employment of the State Government. It is because of the stand taken by the State Government those writ petitions were disposed by directing the Zila Parishad and its authorities to consider the case of the petitioner for regularisation of his services or for appointment on the post of Assistant Engineer. Surprisingly, the respondent- State have changed their stand in the instant writ application inasmuch as now the stand of the respondents is that the authorities of the Zila Parishad have no jurisdiction to appoint the petitioner on the post of Assistant Engineer rather the competent authority is the State Government. 9. Surprisingly, the respondent- State have changed their stand in the instant writ application inasmuch as now the stand of the respondents is that the authorities of the Zila Parishad have no jurisdiction to appoint the petitioner on the post of Assistant Engineer rather the competent authority is the State Government. 9. As noticed above in CWJC No. 3294/ 89, when the respondent-State took the stand that the petitioner was not the employee of the State Government rather he is in the services of District Board, a Division Bench of the Patna High Court directed the District Board to consider the desirability of the ad hoc absorption of the engineers working under NREP scheme. When the direction was not complied with by the District Board, another writ petition was filed by the petitioner being CWJC No. 28/93. A Division Bench of the Patna High Court disposed of the writ petition with a direction to the Deputy Development Commissioner-cum-Chief Executive Officer, District Board. Hazaribagh to consider the grievances of the petitioner and to dispose of the same by passing a reasoned order. Pursuant to that direction the case of the petitioner was considered by the Deputy Development Commissioner-cum-Chief Executive Officer, District Board, Hazaribagh, who by passing a reasoned order dated 1.9.94 absorbed the petitioner on the post of Assistant Engineer. The petitioner accordingly joined the post of Assistant Engineer and worked in the said post. Admittedly, the petitioner joined the services in 1983 and for about 17-18 years, he has continuously worked as junior Engineer and then Assistant Engineer. Surprisingly the appointment of the petitioner was cancelled by the respondents without giving any notice to show cause and without following the basic principle of natural justice and that too by taking a different stand that it is the State Government, who is the competent authority to appoint the petitioner after following the process of recruitment. This Court is of the view that the impugned order of cancellation of appointment cannot be sustained in law for the aforesaid reason and also on the ground of violation of principles of natural justice. The matter needs reconsideration by the Director, Panchayat Raj-cum-Joint Secretary, Rural Development Department, Government of Bihar, Patna. 10. This writ application is, therefore, allowed and the impugned order cancelling the absorption/appointment of the petitioner on the post of Assistant Engineer is set aside. The matter needs reconsideration by the Director, Panchayat Raj-cum-Joint Secretary, Rural Development Department, Government of Bihar, Patna. 10. This writ application is, therefore, allowed and the impugned order cancelling the absorption/appointment of the petitioner on the post of Assistant Engineer is set aside. The matter is remitted back to the Director, Panchayat Raj-cum-Joint Secretary, Rural Development Department, Government of Bihar, Patna to pass a fresh reasoned order in the light of the fact and discussion made in this order. Such decision must be taken by the said respondent within 30 days from the date of receipt of a copy of this judgment. 11. Writ application allowed.