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2004 DIGILAW 711 (PAT)

Birendra Kumar v. State Of Bihar

2004-07-20

NARAYAN ROY

body2004
Judgment 1. Heard counsel for the parties. 2. The writ petitioner, by this application, prays for issuance of a writ of mandamus commanding upon the respondents to absorb/regularise his services on an existing post of Class III in view of the judgments/orders passed by this Court in C.W.J.C. No. 6378 of 1993 and C.W.J.C. No. 12842 of 1996, as contained in annexures 1 and 5, respectively. 3. From the materials on record, it appears that the petitioner is working on Class III post under respondent no. 3, District Magistrate-cum-Chairman, District Rural Development Agency, Aurangabad (hereafter to be referred to as "DRDA") on daily wages since 26.6.1986 and despite availability of sanctioned vacant posts, the petitioner is not being regularised on Class III post. It further appears that while the petitioner and seven other persons were working under respondent no. 3 on daily wages, they were terminated vide order dated 25.6.1993 pursuant to direction of the Joint Development Commissioner, Government of Bihar, Patna. The order of termination was challenged by the petitioner and other persons in this Court in C.W.J.C. No. 6378 of 1993. The writ application on contest was allowed on 31.1.1995 vide order, as contained in annexure 1, and the order of termination of the writ petitioners was set aside and at the same time, this Court keeping in view the fact that the writ petitioners had continued on daily wages for 7 to 10 years, concerned respondents were directed to consider their cases for absorption/regularisation in light of the principles laid down by the apex court in the case of State of Haryana V/s. Piara Singh (AIR 1992 Supreme Court 2130). When the question of regularisation of the petitioner and others was not considered by the authorities, they came to this Court for initiation of a contempt proceeding in M.J.C. Nos. 2986 of 1995 and 1417 of 1996. The M.J.C. applications, however, were disposed of with a direction to the petitioners to approach the Managing Director of the DRDA with their claims and the concerned authority was directed to consider the same in light of the direction given by this Court. However, the aggrieved daily workers again approached this Court in C.W.J.C. No. 12842 of 1996 challenging the order passed by the DRDA, whereby and whereunder the prayer for payment of remaining wages and regularisation of their services was rejected. However, the aggrieved daily workers again approached this Court in C.W.J.C. No. 12842 of 1996 challenging the order passed by the DRDA, whereby and whereunder the prayer for payment of remaining wages and regularisation of their services was rejected. The writ application aforesaid, however, was disposed of after hearing the parties on 9.2.1999 vide order, as contained in annexure 5, and this Court directed the authorities to consider the cases of the writ petitioners for their regularisation as against the vacant posts and at the same time, noticing the fact that one vacant post of clerk is available directed the DRDA to consider the cases of the writ petitioners for regularisation with regard to one vacant post of clerk. This Court further directed to consider the seniormost employee having requisite qualification for the post aforesaid. It further appears that despite passing of the orders by this Court, as referred to above, the grievances of the aggrieved persons were not redressed and the same necessitated this petitioner to approach this Court by this writ application. 4. Learned counsel for the petitioner submitted that sanctioned vacant posts of clerks, accountant and head clerk are lying vacant under the concerned authority, but for the reasons best known to them, the case of the petitioner is not being considered for his regularisation. In this connection, learned counsel refers to annexure 8 to the supplementary affidavit, whereby and whereunder the District Magistrate-cum-Chairman of DRDA sent a letter to the Divisional Commissioner, Magadh Division, for roster clearance vide his letter dated 9.9.2000 showing five vacant posts and after certain queries made from the end of the Divisional Commissioner aforesaid a communication was made to the Chairman of the DRDA vide letter dated 13.2.2001, whereby and whereunder roster clearance was given for three unreserved posts and two reserved posts, but the same till date has not been acted upon and in case, the vacancies could have been filled up even according to roster clearance, the petitioner could have got one berth in unreserved category. Learned counsel further submitted that the managing committee of the DRDA from time to time discussed the matter about filling up the vacant posts, but nothing was done by the concerned authority. The managing committee thereafter vide its resolution, as contained in annexure 14 dated 17.3.2003, again resolved to absorb six persons including the petitioner. Learned counsel further submitted that the managing committee of the DRDA from time to time discussed the matter about filling up the vacant posts, but nothing was done by the concerned authority. The managing committee thereafter vide its resolution, as contained in annexure 14 dated 17.3.2003, again resolved to absorb six persons including the petitioner. However, the petitioner and others were not considered for absorption. Learned counsel, in this view of the matter, submitted that the authority concerned could have considered the case of the petitioner and similarly situated persons for their regularisation owing to the number of vacancies, as referred to above, in light of the earlier directions, issued by this Court. 5. Learned counsel for the DRDA, on the contrary, submitted with reference to various affidavits filed on behalf of the DRDA that as per the direction of this Court, vacant post has already been filled up and this Court fully being satisfied that directions have already been carried out, disposed of the contempt applications filed by the aggrieved persons. It is further submitted that Government of India, Ministry of Rural Development vide its guidelines issued in the year 1999 has banned all fresh appointments and the existing vacancies have been directed to be filled up by way of deputation. Learned counsel, in this view of the matter, submitted that the DRDA in view of the guidelines issued by the Government of India, as referred to above, cannot consider the case of the petitioner for his regularisation on Class III post. Learned counsel has also tried to impress upon the Court that even assuming that three vacant posts of selection grade is available, the same cannot be filled up by fresh appointment. 6. Learned counsel for the petitioner now submits that the respondents have not come out with clean hands and distorted facts have been stated in the affidavits. It is submitted by learned counsel that prior to coming into force of the guidelines, issued by the Government of India, Ministry of Rural Development, there were only two scales in Class III cadres i.e. Rs. 1200-1800 and Rs. It is submitted by learned counsel that prior to coming into force of the guidelines, issued by the Government of India, Ministry of Rural Development, there were only two scales in Class III cadres i.e. Rs. 1200-1800 and Rs. 1400-2300 and vide order dated 14.5.1995 three persons have already been promoted to higher grade posts and now there is neither higher grade post nor there is any selection grade post vacant in DRDA, and, therefore, the statement made by the respondents that the selection grade post cannot be filled up by the petitioner and others is wholly misconceived. 7. From the pleadings of the parties and argument advanced at the bar, it appears that the petitioner is working on Class III post on daily wages since 26.6.1986 and some of Class III posts are lying vacant in the DRDA, Aurangabad, which are not being filled up in view of the guidelines, issued by the Government of India, Ministry of Rural Development. From the plea taken by the counsel for the respondents, it is manifest that in case there would be vacancies, the same would be filled up by way of deputation and not by way of promotion or regularisation. But, according to the case of the petitioner, he is claimant for the post, which was available much prior to coming into force of the guidelines, issued by the Government of India, Ministry of Rural Development. 8. The matter pertaining to absorption/regularisation of the petitioner and others has been examined by this Court from time to time vide annexures 1 and 5, respectively, and necessary directions were issued and pursuant to the direction of this Court, DRDA obtained roster clearance from the Divisional Commissioner, Magadh Division, to fill up Class III posts. Obviously, therefore, it would be construed that vacancies are there, so far Class III posts are concerned. 9. In the given facts and circumstances of the case, however, it appears that the guidelines of the Government of India, Ministry of Rural Development, issue in the year 1999, has not strictly come into force, inasmuch that roster clearance was obtained by the concerned authority from the Divisional Commissioner for filling up Class III posts in the year 2001 and thereafter one Krishna Kumar Singh was regularised from that very clearance on 9.7.2003. The guidelines, issued by the Government of India, Ministry of Rural Development, therefore, may be applicable so far new appointments are concerned. But, so far the cases of regularisation are concerned, in my opinion, the same would not be affected by the guidelines aforesaid, otherwise, the authority could not have obtained roster clearance for filling up Class III posts in 2001 nor one of the posts would have been filled up by regularising Krishna Kumar Singh aforesaid from the aforesaid roster clearance on 9.7.2003. 10. From the tenor of the affidavits filed on behalf of the respondents, it appears that Krishna Kumar Singh aforesaid was regularised in compliance of the order passed by this Court in C.W.J.C. No. 12842 of 1996. This itself indicates that the authorities are not strictly acting as per the guidelines, issued by the Government of India, Ministry of Rural Development. 11. In this background, the case of the petitioner cannot be rejected outright, rather he should be considered by the authorities for his regularisation as per the roster clearance obtained in the year 2001 and keeping in view the fact that the petitioner is working till date on Class III post on daily wages since 1986. 12. Having heard counsel for the parties at length and considering the facts and circumstances, respondent no. 3, the District Magistrate-cum-Chairman, DRDA, Aurangabad, is directed to consider the case of the petitioner for his regularisation on Class III post in accordance with law and in the light of the observations aforementioned. 13. With the direction/observation aforesaid, this application is disposed of.