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2006 DIGILAW 1007 (PAT)

Dasrath Mehtar v. State Of Bihar

2006-11-06

BARIN GHOSH

body2006
Judgment Barin Ghosh, J. 1. In the instant writ petition the Petitioner Dasrath Mehtar, by caste a Scheduled Caste, has come up with a complain that after having had made him to work as a Mehtar, i.e. Sweeper from 1983 until 16th October, 2004, he has been unceremoniously thrown out from his service. On behalf of the Commandant, Bihar Home Guards, initially a counter affidavit was filed. In that it was stated that the post in which the petitioner was working is not a sanctioned post. 2. Rule 151 of the Bihar Boards Miscellaneous Rules read with Appendix-H thereto furnishes the guidelines for making appointment to Ministerial or other posts in Bihar. The said rule and the said appendix do not authorise appointment in a non-sanctioned post, although requirement of publication of notification may be suspended temporarily in cases of urgency. In such view of the matter, it appeared to the Court that an appointment of the nature as given to the writ petitioner could not be given, for a post cannot remain vacant, unless the same is sanctioned. In the circumstances, a further affidavit was called for. 3. In the further affidavit, as filed today in Court, it has been stated that 2226 posts of Home Guards were sanctioned by the Government which obtained budgetary sanction for the Financial Year 1981-82 for six months only but the sanction of those posts and some other senior posts was renewed from time to time. It has been stated that the Home Guard Department approached the Government with a proposal to create three Special Battalions and at the same time sought Governments approval to engage Class IV employees to perform the work of Cook, Sweeper, Cobbler, Barber, Tailor, etc. It is the specific case in the said affidavit that the Government refused to grant permission to appoint Class IV employees to perform the work of Cook, Sweeper, Cobbler, Barber, Tailor, etc. It has been stated that thereupon 2226 sanctioned posts of Home Guards were divided into three Battalions consisting of a strength of 742 each and it was decided that out of 742 Home Guards, 700 would be regarded as Home Guards, as defined in the Bihar Home Guards Act, 1947 read with the Bihar Home Guards Rules, 1953, and the remaining 42 sanctioned posts of Home Guards will be utilised for engaging Cooks, Sweepers, Barbers, Tailors, etc. Learned Counsel appearing on behalf of the State submitted that this was a policy decision and accordingly this Court will not interfere with such policy decision. 4. It is surprising that the learned Counsel for the State does not know what is the meaning of a policy decision. In the instant case, the policy decision of the Government was that none of the Home Guards as sanctioned should be used as Cooks or Sweepers. If the higher authorities and officers of Home Guard Department cannot function without a Cook or a Sweeper, by the policy decision of the State Government, they were told that they must cook their own meals and sweep their own dirt. Despite such policy decision, the high Officers of the Department had the audacity to engage a Sweeper despite the State Government by a policy decision decided not to permit them to do so. It is surprising that since the petitioner was appointed as a Sweeper and allegedly not as a Home Guard, a stand has been taken in the affidavit filed today that Rule 16 of the Home Guard Rules did not apply to him. The admitted fact, however, remains that the salaries as has been paid to the petitioner had been paid from that fund which has been sanctioned by the State Government for payment of fees of Home Guards and, accordingly for all practical purposes, it must be deemed that the petitioner, though had been appointed as a Home Guard, was made to sweep for he was a Mehtar, i.e. a Scheduled Caste, to satisfy the private needs of the higher officers of the Department. 5. It has been stated that the petitioner has been disengaged simply and that is permissible under the Act. At the same time it has been stated that in terms of the Act and the Rules, a Home Guard can be engaged for four years maximum, whereupon he may be re-enrolled. The fact remains that from 1983 until 2004 the petitioner remained engaged or re-engaged as a Home Guard and suddenly he has been relieved without letting him know why, and that too, before completion of four years cycle. The petitioner has also not been told that whether there is any scope of re-enrolling him as a Home Guard. The fact remains that from 1983 until 2004 the petitioner remained engaged or re-engaged as a Home Guard and suddenly he has been relieved without letting him know why, and that too, before completion of four years cycle. The petitioner has also not been told that whether there is any scope of re-enrolling him as a Home Guard. The manner in which the Officers of the Home Guard Department have proceeded is that the petitioner is not a Home Guard, he is a personal servant of the officers of the Home Guard Department for the purpose of using him as a Sweeper to sweep their houses and offices when the policy decision of the Government is that you do remove your own dirt, which action has been defended by the counsel engaged by the State. 6. The manner in which the officers of the Home Guard Department have proceeded tells me to take appropriate action against those officers so that they do not dare to act contrary to the policy decision of the State while they remain employees of the State Government. It is astounding that when the Government decided not to allow any of these officers to engage a Sweeper, they engaged a Sweeper out of the sanctioned strength of Home Guards and purported to hold out that the Sweeper is not a Home Guard, though he was paid from the salaries sanctioned by the State for home guards. 7. Let the Registry supply a copy of this order to the Secretary, Home Department of the State, who is directed to immediately initiate appropriate proceedings against the persons who have acted in the manner, as above, and also to ascertain whether by compelling the petitioner, though engaged as a Home Guard, to work as a sweeper any Officer of the State is liable to be punished under the appropriate provisions of law protecting Harijans and ultimately see to it that these lapses do not take place in future. 8. 8. Inasmuch as the law under which the petitioner had been appointed, he could be relieved, it would not be appropriate on my part to direct restoration of the services of the petitioner, but inasmuch as in the affidavit it has been stated that the Act authorizes re-enrollment and since there is not a whisper as to incapacity of the petitioner to discharge the duties of Home Guard, unless the petitioner is re-enrolled, no one junior to the petitioner in the force shall be re-enrolled, and for that purpose engagement of each Home Guard shall be calculated on the basis of the four years cycle. 9. This disposes of the writ petition.