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2004 DIGILAW 189 (PAT)

Awadhesh Kumar v. State Of Bihar

2004-02-16

RAVI S.DHAVAN, SHASHANK KR.SINGH

body2004
Judgment 1. This is a very small, petty and sad case about 14 Jeep drivers who worked as daily wagers in the district of Nawada. They were not being made regular and an issue was being created that the authority which had engaged them on daily wages perhaps did not have the power or sanction to regularize their appointments. Some of these petitioners were appointed 24 years ago. The date of their appointment as a daily wagers is shown against them as below: No. Name Office ar Date of jpointment 1. Ram Janam Mishra D.R.D.A.Nawada 12.6.1980 2. Md. Ehtesam Khan Warsaliganj, Anchal 11.12.1981 3. Ram Nandan Prasad District Confidential Branch 15.11.1983 4. Prabhu Prasad Pakribarwan, Anchal 18.1.1984 5. Maqsood Alam Narhat, Anchal 27.7.1985 6. Binod Kr. Sinha N.R.E.P., Nawada 22.11.1985 7. Rajendra Pd. Singh Subdivlslonal Office, Nawada 20.1.1987 8. Om Prakash District Confidential Branch, Nawada 11.1.1988 9. Nagendra Prasad Addl. Collector Office, Nawada 1.3.1988 10. Awadhesh Kumar District Panchayati Raj Office, Nawada 1.2.1989 11. Umesh Singh Nawada Anchal 3.3.1990 12. Sanjay Sharma Narhat Block 20.3.1990 13. Manohar Thakur Akbarpur, Block 20.5.1990 14. Moti Lal Choudhary District Confidential Branch, Nawada 1.7.1990 2 Vacancies were available in the district. This is not in issue between the petitioners and the district administration nor is this an issue before the High Court between counsel for the apellants-petition-ers and the State counsel. 3. In the writ petition, Petitioners-appellants virtually got a declaration that their appointments will be done by the Bihar Public Service Commission. This is the order on the writ petition. The order is dated 26 August, 1997. It is challenged in the Letters Patent Appeal. Someone was raising a controversy on the file that regarding petitioners-appellants, all Jeep drivers, a decision has to be taken whether their posts are category-Ill or category-IV. Lest there be any misunderstanding on how the issue was created, the court is reproducing the notings which created the controversy; ***Local Language*** 4. With a controversy created, the writing on the wall was very clear that this record of the Jeep drivers would shuttle between Nawada and the Secretariat until somebody clarifies it whether they are class-Ill or class-IV. Petitioners filed a writ peti- tion and to defeat their claims the State-respondents filed a counter affidavit. With a controversy created, the writing on the wall was very clear that this record of the Jeep drivers would shuttle between Nawada and the Secretariat until somebody clarifies it whether they are class-Ill or class-IV. Petitioners filed a writ peti- tion and to defeat their claims the State-respondents filed a counter affidavit. The counter affidavit seems to rely on a government communication and asserted: That, the District Administration was taking necessary steps for appointment of jeep drivers on sanctioned post, but the state government in Personnel and Administrative Reforms Department has taken a decision that appointment of Class III grade employee be made on the basis of competitive examination conducted by Bihar Public Service Commission. This decision has been communicated to all the District Magistrate vide memo no. 11243 dated 6.12.1995. In face of the aforesaid decision of the state government the appointment of the jeep drivers can be made only after competitive examination is held by the Bihar Public Service Commission. 5. These pleadings in the counter affidavit seemed to be closing the door on the petitioners that the selection of all the Jeep drivers working on daily wages will be done by the Bihar Public Service Commission. The pleadings seem a bit strange that a Jeep driver whose qualification is middle school pass the Bihar Public Service Commission will engage itself in recruiting the drivers. 6. The State counsel submitting on the case could not clarify the situation why some of the petitioners were in wait for regularization after 20 years of service. The only alternate left for the court was to see the original record on a writ of certiorari. 7. When the original record came before the court it presented a horrible picture of untruth. The pleading before the High Court was twisted and away from the record. A general instruction was issued from the Secretariat to all the Divisional Commissioners. It is a communication issued from Secretary-cum-Commissioner, Department of Personnel, wireless message no. 202 dated 14.12.1995. It reads thus: "Kly. refer to the govt, of Bihar resolution dated 6th. Sept. 1995 issued under the Department of Personnel and Administrative Reforms m/no. 11243 dt. 6th Dec. 95 reg. revised procedure for. appointment to Class III posts in regional offices of the State Govt. 202 dated 14.12.1995. It reads thus: "Kly. refer to the govt, of Bihar resolution dated 6th. Sept. 1995 issued under the Department of Personnel and Administrative Reforms m/no. 11243 dt. 6th Dec. 95 reg. revised procedure for. appointment to Class III posts in regional offices of the State Govt. Under the revised procedure, the District Magistrates and other appointing authorities in the districts are required to send requisition pertaining to all vacancies in the offices with roster breakup approved by the competent authority to Bihar Public Service Commission. The Bihar Public Service Commission will issue advertisement for appointment to these vacancies and also hold examination. Govt, desires that all Class III nontechnical posts vacant in the districts be filled up without delay. The Divisional Commissioners have been telephonically requested by me to coordinate and ensure that all the vacancies of non-technical Class III posts in the districts are reported to the Bihar Public Service Commission with copy to Department of Personnel and Administrative Reforms, Bihar, Patna within fifteen days only. Ensure compliance." 8. Now if negative and positive are put together the State has twisted and manufactured the facts as if the petitioners are at fault and their services cannot be regularized. The communication has nothing to do with drivers. 9. This sort of unfair pleadings leads to conflict between the State and its lowest employee. It also leads to conflict in an institution which is a temple of justice where only truth must be spoken. The facts must not be twisted for ultimate purposes for misplaced babu power or unlawful gains. To watch the wel/are of the employees of the State is the obligation of the State. It is only when the State will not do justice then the High Court comes in. Thus every action of the government is inversely proportionate to the number of litigation which is generated at the hands of the government at the High Court. The High Court has no hesitation in certifying by a certiorari that the government has spoken the untruth by misrepresenting facts and twisted them to deny a rightful claim of Jeep drivers of Nawada. 10. The court put the respondents under a notice to answer an issue on perjury. One official, apparently escapes by technicality because now he has been posted to Jharkhand. 10. The court put the respondents under a notice to answer an issue on perjury. One official, apparently escapes by technicality because now he has been posted to Jharkhand. The other officer who was Collector at the time when the affidavit was filed by his Deputy Collector is now represented by a private counsel. 11. The original record was placed before the counsel who represents the then Collector. He was asked to read the pleadings in paragraph-8, which has been reproduced in this order, and side by side read the communication on which the pleading is based. Thereafter, he was given the liberty to seize the opportunity to justify the stand taken in the affidavit by misinterpreting the government communication. Counsel after having examined the record and having looked at the pleadings in paragraph no. 8 and the communication at page-28 of the original record, accepted that the subjects are entirely different and contradiction is apparent on the face of it and the pleading is not compatible with the record summoned on certiorari. This then ends and demolishes the entire case of the State respondents. The case is based on material suppression of facts. 12. In so far as the State counsel is concerned he could not show to the court how a driver may be a class III employee. He could only show certain circulars issued by the State Government as government orders. One of them is dated 31 July, 1997 memo no.-3/M 1-1052/96 Ka 7003. This circular is nothing but total abdication of administrative responsibility and an aspect which has now become part and fabric and ground realities of administration in Bihar. This circular refers to some direction given in a writ petition by the Patna High Court, its Ranchi Bench then, that a certain driver be regularized. It records that whereas the State has permitted the case to be delayed and barred by limitation and a Special Leave Petition could not be filed, therefore, the decision of the High Court be accepted and in accordance with the decision of the High Court the driver concerned be regularized. The State administration is in the habit of writing in file after file that it is doing so or taking a certain action because the High Court has ordered it so. 13. The State is entirely free to take its action, but it must be in accordance with law. The State administration is in the habit of writing in file after file that it is doing so or taking a certain action because the High Court has ordered it so. 13. The State is entirely free to take its action, but it must be in accordance with law. It always has the opportunity to take recourse to the forum of the Court of last resort. Changing Government orders repeatedly and running the administration on circulars is a mediocrity of administration. This court is disappointed that the State counsel could not guide the court on what exactly is the law on the basis of which persons who belong to this category, that is to say drivers, may be appointed. 14. The answer lies clear in the Bihar Service Code. There are certain employees within the "menial" category itself who receive two types of salary. This is the context of the present case. These are employees in the lowest rung of the ladder. This category is known as "inferior employees" or "menial servants." There is a long list. It is appended as Appendix-IV. It is a sequel to rule 24 of the Bihar Service Code. Within this general category known as "Menial servants" there is a qualification. By fiction there are some "menial servants" whose job is technical in nature. Regard being had to the emoluments received by them-they are treated "as inferior service". 15. Thus within one dominant category known as inferior or menial there is a qualification that certain technical staff though menial and inferior are treated for the purpose of payment of emoluments as if they were in superior service. The expression is: "treated in superior service." The expression by no stretch of imagination means that they are the superior service. Rule 24 is about inferior service. The category of employees is given in Appen-dix-IV. They are all employees which are stipulated in Appendix-IV. They all belong to Rule 24 which is inferior service. The exception is that whereas they are of inferior service and/or menial staff some of them so mentioned in part-2 receives a pay packet which is higher than the employees in part-1. 16. The court is very sad to see that inferior service employees, the lowest in the ladder, are being harassed by the State Government and its district administration and litigations are" being generated. This leads to frustration, friction and breach of peace. 16. The court is very sad to see that inferior service employees, the lowest in the ladder, are being harassed by the State Government and its district administration and litigations are" being generated. This leads to frustration, friction and breach of peace. This style of fighting with lowest rung employees and permitting the Babu to work through the file and making an issue out of a clear cut situation only shows a phenomenon that the State Government in reference to its employees is in continuous conflict with them. A ready reckoner may show the number of cases which are lying at the Patna High Court in petty matters like the present one. 17. In the context of this matter the power was and/or is always with the district administration. There was never any doubt about it. Merely seeking clarification by somebody will not remove the powers of the head of the department which are contained within the district administration itself. The petitioner appellants will be entitled to regularization as from the date when the clarification was being sought on 1.2.1993 (Annexure-1). This in any case became a final panel subsequently as from 12 January, 1993. In so far as the enlistment is concerned, it was only confirmation that posts were vacant and these persons, that is, the petitioners-appellants need to be regularized. 18. This appeal is allowed with costs throughout. Each of the appellants will be entitled to cost of Rs, 1500/-. In addition they are to see regularization within three weeks from today. 19. A copy of this order be translated in Hindi and send to the Chief Minister so that she may know what is going on within her government.