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2002 DIGILAW 870 (PAT)

Arjun Manjhi v. State Of Bihar

2002-08-09

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. In this writ application, prayer made by the petitioner is to quash the order dated 22.2.2002 (Annexure-9) whereby prayer made by the petitioner to regularise his service as Dafadar has been rejected. Further prayer made by the petitioner is to direct the respondents to regularize his services as Dafadar of Union no. 4 in Mashrak Police Station. 2. Petitioner earlier came to this Court for regularisation of his service as Dafadar by filing C.W.J.C. No. 8172 of 1997. This Court, by order dated 3.8.1999, disposed of the writ application giving opportunity to the petitioner to file representation before the District Magistrate for redressal of his grievance. In pursuance of the said order, the petitioner filed the representation and by the impugned order, same has been rejected. 3. It is the stand of the petitioner that on account of ill health of his father, he performed the duty of Dafadar since 1989 and, therefore, his service is fit to be regularized as Dafadar. From the perusal of the impugned order, it seems that the Superintendent of Police of Saran, vide its memo dated 15.3.1993, recommended for temporary appointment of the petitioner as Dafadar but the recommendation was turned down by the Collector. It is relevant here to state that the State Government, by its decision dated 17.1.1990, which was made effective from 1.1.1990, took a policy decision that the Chaukidar and Dafadar be treated as Government servants under the State and the District Magistrate shall be their appointing authority. The State Government also took the decision that the promotion to the post of Chaukidar/Dafadar shall be made by following the procedure for appointment as contained in letter of the Home (Police) Department of the State Government dated 6.11.1991. It was also decided that the post of Dafadar shall be filled up by promotion from the post of Chaukidar. 4. Learned counsel for the petitioner submits that the petitioner is working as Dafadar since 1989 and in view of the decision of the State Government dated 27.2.1992 (Annexure-10), his case for regularisation to the post of Dafadar is fit to be considered. 4. Learned counsel for the petitioner submits that the petitioner is working as Dafadar since 1989 and in view of the decision of the State Government dated 27.2.1992 (Annexure-10), his case for regularisation to the post of Dafadar is fit to be considered. He points out that according to the said decision, as the petitioner worked as Dafadar prior to 7.1.1990 in place of his father, his case is fit to be considered according to the earlier decision of the State Government and the decision of the State Government dated 17.1.1990 shall not be applicable. 5. As stated earlier, the petitioner came up before this Court earlier for regularization of his service. In that case, it has been observed that the father of the petitioner died on 9.9.1994 and had drawn salary till that date. In that it was not disputed that the petitioners father received his salary till the date of his death and this fact is also not disputed in the present case but the same is sought to be explained by saying that the respondents or their subordinate officers ought not to have prepared pay bills in the name of the petitioners father but they ought to have prepared pay bills in the name of the petitioner. In case, it was so, nothing prevented the petitioner to raise this objection at that point of time. Petitioners father having received the salary till 9.9.1994, it cannot be said that the petitioner worked in his place prior to that date. Few duty orders placed on record would not show that he had worked in place of his father. In that view of the matter, petitioner cannot derive benefit of the decision of the State Government dated 27.2.1992. 6. Learned counsel for the petitioner submits that having gained practical experience, it is the fit case in which respondents be directed to regularize the petitioners services. In support of his submission, he has placed reliance on the judgment of the Supreme Court in the case of Bhagwati Prasad and anr. V/s. Delhi State Mineral Development Corporation and anr., (1990) 1 SCC 361 and a decision of this Court in the case of Abadh Singh V/s. Bihar State Cooperative Marketing Union Limited and others, 1995 (2) PLJR 184. I am not, at all, impressed by this submission of the learned counsel and the authorities relied on, are clearly distinguishable. V/s. Delhi State Mineral Development Corporation and anr., (1990) 1 SCC 361 and a decision of this Court in the case of Abadh Singh V/s. Bihar State Cooperative Marketing Union Limited and others, 1995 (2) PLJR 184. I am not, at all, impressed by this submission of the learned counsel and the authorities relied on, are clearly distinguishable. In the case of Bhagwati Prasad and anr. vs. Delhi State Mineral Development Corporation (supra), the employee was lacking certain qualification and on account of the experience gained by him, the employee was directed to be continued in service. Similarly, in the case of Abadh Singh vs. Bihar State Cooperative Marketing Union Limited and ors. (supra), the employee was allowed to continue in service as he had continued in service for a long period notwithstanding the irregularity in his appointment. Here, in the present case, the State Government had taken the decision to make the post of Dafadar, a service under the State. The post of Dafadar has to be filled by promotion of Chaukidars. As such, respondents are under an obligation to follow the procedure for appointment and the direction sought for by the petitioner to regularize his service shall be in teeth of that. In sum and substance, the prayer of the petitioner is to direct the respondents to appoint him in disobedience of law. This shall be destructive to the rule of law and this Court shall refrain from issuing any such direction which leads to breach of any law. 7. I do not find any merit in this application and it is dismissed in limine.