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2004 DIGILAW 897 (PAT)

Nandelal Yadav v. State Of Bihar

2004-09-03

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. Initially, this writ petition was filed for the relief for regularising and making permanent services of the petitioner who has been working on the post of Ewazi chowkidar of circle No. 19/3 under Wena Police Station in the district of Nalanda and also for payment of all the dues and salary accordingly. 3. The case of the petitioner, in short, is that earlier one Shaukhi Gope was working as chowkidar in the said circle and he was removed from the post on 11.5.1978 and from that date itself the petitioner who is his nephew was nominated and posted as Ewaji chowkidar and since then he is working on that post and has also received salary till January, 1989, which is clear from Annexures-1 and 2 which are the letters issued by the Supdt. of Police, Nalanda and Circle Officer, Rahul, respectively. 4. The learned counsel for the petitioner further claimed that the Officer-in-charge of the concerned Police Station sent recommendation dated 10.1.1990 (Annexure-G) whereafter an enquiry was made by the Supdt. of Police who found him innocent of the charges and allowed him to continue on the post vide letter No. 307 dated 19.2.1994 (Annexure-3). Thereafter, an enquiry was made by the District Magistrate, Nalanda, as to why the petitioners services were not regularised in the meeting of the establishment Committee dated 9.8.1997 (Annexure-5). 5. It is clear from the records that earlier a counter- affidavit was filed on behalf of respondent No. 5 Supdt. of Police, Nalanda at Biharsharif, on 4,4.2000, in which it was stated that there was some delay due to complaints made against the petitioner, but now his regular appointment was under process and payment of salary made to the petitioner was also accepted. However, it transpires that later on 12.9.2002 (Annexure-10), the District Magistrate, Nalanda, rejected the claim of the petitioner on the ground that only the person appointed on the post of chowkidar can be regularised and that Ewazi chowkidar can not be regularised. Against the said order the petitioner filed another writ petition bearing CWJC No. 14245/2002 which was dismissed by this Court on 27.3.2003 (Annexure-9) as not maintainable, as the instant writ petition was pending, with an observation that the petitioner may bring the aforesaid fact on record of the instant writ petition by filing a supplementary affidavit therein. Against the said order the petitioner filed another writ petition bearing CWJC No. 14245/2002 which was dismissed by this Court on 27.3.2003 (Annexure-9) as not maintainable, as the instant writ petition was pending, with an observation that the petitioner may bring the aforesaid fact on record of the instant writ petition by filing a supplementary affidavit therein. Accordingly, the writ petitioner has filed a supplementary affidavit on 1.4.2004 challenging the aforesaid order dated 12.9.2002 of the District Magistrate and has also annexed the relevant materials in support of his case. In the aforesaid supplementary affidavit the petitioner has claimed that on 17.1.1990 rules have been framed for regularisation of such posts which was to take effect from 1.1.1990 (Annexure-12) and in that it was specifically stated that a person appointed prior to 1.1.1990 either on the death of the earlier chowkidar, on the recommendation on of the earlier chowkidar his appointment will be regularised. 6. The learned counsel for the petitioner also relies upon Government letter dated 20.9.1995 (Annexure-13) in which it was stated that the ban imposed on the regularisation for such posts vide letter No. 711 dated 23.1.1991 has been lifted. Hence, in the aforesaid circumstances, there was no occasion for ignoring or rejecting claim of the petitioner, 7. Now, another supplementary counter-affidavit has been filed on behalf of respondent No. 5, Supdt. of Police, Nalanda at Biharsharif, stating therein that order dated 12.9.2002 has been passed by the District Magistrate on the basis of report of the concerned Circle Officers that the nomination of the petitioner has not been sent through their offices. In the aforesaid circumstances, the learned counsel for the respondent submits that in the absence of the nomination no regularisation can be legally made and hence the impugned order of the District Magistrate is fully justified and proper. 8. After considering the arguments of the learned counsel for the parties and after perusing the materials on record it is quite apparent that the petitioner has been working as Ewazi chowkidar since 1978. It is also apparent from the record that the authorities themselves admitted that salary was paid to the petitioner till January, 1989, and he has been working regularly. It is also apparent from the record that the authorities themselves admitted that salary was paid to the petitioner till January, 1989, and he has been working regularly. It is also apparent from the records that all the allegations made against the petitioner were found to be false and the petitioner was found innocent and allowed to continue on the post vide letter dated 19.2.1994 (Annexure-3) whereafter the District Magistrate himself asked in the meeting of the Establishment Committee dated 9.8.1997 (Annexure-5) as to why the petitioner was not regularised. 9. Inspite of the aforesaid facts and working of the petitioner for twenty six long years, now the Circle Officers say that no nomination was sent from their offices. The said claim of the Circle Officers is absolutely illegal as the question involved is as to when the nomination has been given by the earlier chowkidar, and then why the Circle Officer did not send it to the authorities concerned and even if there was no nomination by the earlier chowkidar, then why the petitioner was allowed to continue in the services for such a long period. Apparently, due to these reasons the District Magistrate did not reject the claim of the petitioner on that ground and by the impugned order dated 12.9.2002 he refused to grant approval on the ground that it can be granted only to a person appointed on the post and not to an Ewazi chowkidar who was working on the basis of some nomination. This order is clearly in the teeth of Government letters dated 17.1.1990 (Annexure-12) and 20.9.1995 (Annexure-13) which clearly postulates that Ewazi chowkidar working prior to 1.1.1990 should be regularised and also that the ban imposed on such approvals was lifted much prior to the passing of the impugned order by the District Magistrate. It further transpires from the records of the case and from the materials mentioned above that earlier the authorities including the District Magistrate were fully convinced that the services of the petitioner should have been regularised due to which on 9.8.1997 the District Magistrate himself has sought explanation as to why the services of the petitioner was not regularised. It further transpires from the records of the case and from the materials mentioned above that earlier the authorities including the District Magistrate were fully convinced that the services of the petitioner should have been regularised due to which on 9.8.1997 the District Magistrate himself has sought explanation as to why the services of the petitioner was not regularised. But merely on some whimsical and apparently frivolous reports of the Circle Officers, the impugned order has been passed on grounds completely violative of the Government letters themselves and in the process rendering twenty six years services of the petitioner to nought and leaving him helpless at the fag end of his career. 10. In the aforesaid circumstances, I hereby set aside the impugned order of the learned District Magistrate dated 12.9.2002 and direct the authorities concerned to regularise/approve the services of the petitioner on the sanctioned post of chowkidar with effect from the date from which he is legally entitled to as per the Government letters mentioned above and give him all the consequential benefits including the arrears of salary accordingly, 11. With the aforesaid directions, this writ petition is allowed.