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Patna High Court · body

2008 DIGILAW 571 (PAT)

Rupa Kumari Shrama v. State Of Bihar

2008-04-06

MRIDULA MISHRA

body2008
Judgment 1. In all these writ applications the prayer of the petitioners are similar as such they have been heard together and are being disposed of by a common order. 2. Prayer of the petitioners in all these writ applications is for quashing of Office order no. 126 dated4.5.2007 issued by the Commissioner-cum-Secretary, Rural Development Department, Government of Bihar, Ialna in pursuance of the order contained in Memo no. 1624 dated 22.2.2007. whereby the petitioners have been transferred to different blocks in the State of Bihar after being absorbed as government servant. 3. All these writ applications were heard along with C.W.J.C.No.6467 of 2007 as the petitioners have challenged their transfer order issued by the Commissioner-cum- Secretary, Rural Development Department, Government of Bihar contained in Office order no. 126 and 127 dated 4.5.2007 on the basis of the resolution contained in Memo no.2828 dated 29.3.2007 erroneously absorbing the petitioners as government servants. I found that the case of petitioners in C.W.J.C.No.6467 of 2007 is different from the case of the petitioners in all other writ applications as such they are being disposed of by two different orders. 4. Petitioners in all these writ applications are working on the post of Lady Extension Officers. Their case is that for smooth functioning of the integrated Rural Development Programme (hereinafter referred to as the I.R.D.P.) and for strengthening the block administration, through Memo no.4452 dated 11.5.1993, 195 posts of Lady Extension Officers were sanctioned and created by the Bihar Government in the first phase. These posts were under the administrative control of Rural reconstruction and Panchayat Raj department.. Later on as per requirement the strength of posts was increased time to time and the present strength of Lady Extension Officer is 276. Though the post was created and sanctioned at the State level under the Rural Development Department, but as per the requirement the appointees were posted at different places and put under the control of Divisional Commissioner. Initially the Divisional Commissioner was vested with the power of appointment but subsequently the State Government realized and considered that the Lady Extension Officers have to work under the District Magistrate under various blocks as such the District Magistrates were delegated with the power to issue appointment letters on the basis of recommendation made by the Selection committee headed by the Divisional Commissioner. Procedure for appointment on the post of Lady Extension Officer was circulated through Memo no. 12294 dated 29.12.1983 to all Divisional Commissioner in the State of Bihar by Rural reconstruction and Panchayat Raj department. A selection committee under the Chairmanship of the Divisional Commissioner was constituted which was required to select the candidates and send the names of the selected candidates to the District Magistrate for their appointment. Appointment was to be made as per guidelines issued by the Personnel and Administrative Reforms Department time to time. The reservation policy of the government for appointment in the government service was also to be followed in selection and appointment, as per the circular, the local candidates were required to be given first preference and only in case of non availability of the local candidates outsiders were to be selected. As per the circular/guideline the expenditure incurred on the posts was to be made under the budgetary head 314 Society Development-GA- Village Construction Scheme. 5. Petitioners had applied in pursuance of the advertisement for the post. They appeared in the interview before the Selection committee constit5uted under the Chairmanship of the Divisional Commissioner and appointed by the District Magistrate on recommendation of the Selection Committee against sanctioned posts on substantive basis by the Rural Development Department, Government of Bihar for which budgetary allocation was also there. Since they were appointed against the permanent posts as such definite service conditions Rule was required to be framed in their case also as in case of other non gazetted government employees. Petitioners case is that after being appointed they were admitted to annual increment after passing Hindi Noting and Drafting examination, subjected to G.P.F. contribution, getting gratuity and other pensionary benefits, but it was not decided as to whether they belong to State cadre or district cadre. Once a dispute arose about payment of house rent to the Lady Extension Officer it was clarified by the Government of Bihar through Memo No. 3401 dated 10.4.1987 that Lady Extension Officers are entitled to get same benefit at par with the State government employees, Petitioners have annexed the orders passed in C.W.J.C.No.8447 of 1995 and C.W.J.C.No. 11971 of 1996, in order to emphasize that by the impugned orders their service conditions have been changed in violation of order passed in earlier writ application. C.W.J.C.No.11971 of 1996 was filed by the Lady Extension Officers as mode for payment of their salary was being changed. The writ application was disposed of and it was held as follows:- " In my view , if it is fact that posts of Lady Extension Officer is a cadre post, then the State Government should take a decision as to whether the cadre is State cadre or district cadre within a period of six months from the date of receipt/production of a copy of this order by the petitioners before the Commissioner- cum- Secretary, Rural Department, Government of Bihar and Commissioner-cum- Secretary Department of Finance, Government of Bihar, respondent no.2." 6 Inspite of specific direction of this Court the cadre of the petitioners were not decided and again by letter dated 3rd June, 1998 the mode of payment of salary and allowance to the petitioners were directed to be changed putting it under the plan head. This order was challenged by the petitioners organization in C.W.J.C.No.5572 of 1998. The operation of the impugned order was stayed and a direction was issued that the petitioners would be paid their salary and allowance as they were being paid in the past notwithstanding the letter dated 3rd June, 1998. So far the question as to whether the services of the petitioners have been rightly considered to be under the District Rural Development Agency it is still pending for consideration as the writ application has not yet been decided. 7. Petitioners grievance is that despite the fact that in C.W.J.C.No. 11971 of 1996 vide order dated 1.7.1998 this Hon ble court had directed the respondents to decide the cadre and service conditions of Lady Extension Officers, no such step was taken by the respondents and without deciding their cadre and service condition, the impugned orders has been issued, transferring the petitioners from their present place of posting. Petitioners further grievance is that by issuance of the impugned orders their service conditions have been changed without complying the direction of the High Court as from the impugned orders it is indicated that now the posts of Lady Extension Officers/ Extension Officers have been put under non plan head and absorbed as Government servant without deciding their inter-se seniority, promotional avenues and other benefits available to any government employee. On account of the impugned order they are being treated as special category of appointees as the posts against which they have been absorbed are going to be abolished on their retirement or death. On account of the impugned orders petitioners are going to loose their seniority, promotional avenues as well as all consequential benefits like pension, gratuity, G.P.F. annual increment, compassionate appointment etc. They are also going to be deprived from the benefit of continuity in government service from the date of their initial appointment as well as the benefit of incadrement. 8. Counter affidavit has been filed on behalf of the Commissioner-cum- Secretary, Rural Development Department, Government of Bihar (respondent no.2) stating that the Lady Extension Officers and the Extension Officers ( Industries and Commerce) posted under different district Rural Development Agencies under Block strengthening scheme are not government servant though they are demanding for service condition at par with the government servant. As per the new guidelines of the D.R.D.A. issued by the Government of India the Lady Extension Officers and the Extension Officers Industries and Commerce are to be kept on contract/deputation basis but so far the Lady Extension Officers working prior to 1.4.1994 are concerned they have been adjusted in different departments by the impugned orders. It has been admitted that Mahila Prasar Padadhikari Sangh had earlier filed C.W.J.C.No.5577 of 1998 and C.W.J.C.No.6042 of 2008 where also the question regarding the service conditions of the writ petitioners is under consideration and still pending. Case of respondents is that C.W.J.C.No.6543 of 1991 was filed by the Extension Officers (Industries & Commerce) for pay parity. This writ application was decided on 6" April 1999. While deciding the writ application, the court dealt with the revision of pay of Extension Officers (Industries & Commerce) and Statistical Investigator working in D.R.D.A. In relation to the Service Conditions, the court directed for setting up of a committee. M.J.C.No.294 of 2000 was also filed by the petitioner because their service condition was not decided. In order to comply the direction of the court, a committee was constituted and as per the resolution of the committee 276 posts of Lady Extension Officers were created under non plan head in the block establishment for absorption of Lady Extension Officers as Government servant. In order to comply the direction of the court, a committee was constituted and as per the resolution of the committee 276 posts of Lady Extension Officers were created under non plan head in the block establishment for absorption of Lady Extension Officers as Government servant. Now after issuance of order vide Memo no.2828 dated 29.3.2007 Lady Extension Officers have become government servant and are entitled for available facilities like government servant. Government resolved to transfer the Lady Extension Officers from their present place of posting as they have completed more than three years in their present place of posting. Utmost care has been taken for the convenience of Lady Extension Officers as they have been posted in the district adjacent to the district where they were posted earlier. 9. In the supplementary counter affidavit filed by the State it has been stated that the Government of India instructed the State government in the year 1983 to create and appoint one Lady Extension Officer post and one Extension Officer ( Commerce and Industries) for execution of I.R.D.P. programme. The Lady Extension Officers were appointed under that scheme in D.R.D.A. by the District Magistrate as appointing authority. The expenditure of salary was born by the Government of India, the State Government in the ratio of 50x50. The Government of India stopped payment of its share since 1996-97. The State Government created block administration strengthening scheme for payment of salary to Lady Extension Officers and Extension Officers working in D.R.D.A. The State Government vide letter no.4585 dated 3.6.1998 cancelled the previous order issued vide letter no.645 dated 15.1.1988 and declared Lady Extension Officers as staff of D.R.D.A. They were not recognized as government servant for getting facilities at par with the government servant Further it has been stated that the Mahila Prasad Padadhikari Sangh filed a writ application being C.W.J.C.No.5577 of 1998 challenging order dated 3.6.1998 contained in letter no.4585 and for granting them service condition at par with the government servant. The matter is still pending for consideration in the Hon ble High Court. The Rural Development Department constituted a committee to find out the solution in the light of the new guidelines of government of India. The committee recommended to adjust service of Lady Extension Officers , appointed prior to 1994. For absorption request letters were sent to different departments. The matter is still pending for consideration in the Hon ble High Court. The Rural Development Department constituted a committee to find out the solution in the light of the new guidelines of government of India. The committee recommended to adjust service of Lady Extension Officers , appointed prior to 1994. For absorption request letters were sent to different departments. When the department did not respond the Rural Development Department to comply the order passed in M.J.C.No.294 of 2000 and 1839 of 2005 resolved vide Memo no. 1624 dated 22.2.2007 to created 280 posts of Lady Extension Officers and 219 posts of Extension Officers under non plan head in block establishment under head 2525 and adjusted 280 Lady Extension Officers, 186 Extension Officers and 53 Statistical investigators. It was also decided that these created posts will exist only till the retirement/ death of adjusted staff and will automatically stands abolished thereafter. So far the cadre post of these adjusted Lady Extension Officers and Extension Officers are concerned it has not been decided. They were earlier working in D.R.D.A. an institution registered under the Societies Registration Act 1860 as such not a Government servant. After their adjustment they will avail all facilities at par with the government servant. They have been adjusted in the pay scale of Rs. 5000-8000/- which is the pay scale of State cadre as such their services are transferable through out the State. 10. From the pleadings of the parties as well as the submissions advanced by their counsels it is clear that the Lady Extension Officers were appointed on the basis of the recommendation of Selection Committee headed by the Divisioinal Commissioner. Their appointment was made as per guidelines issued by the Personnel and Administrative Reforms Department . The District Magistrate was authorized to issue appointment letters for their appointment. The Lady Extension Officers were also admitted to annual increment after passing Hindi Noting and Drafting Examination subjected to G.P.F. contribution getting pension and other pensionary benefits. These statements made in the writ applications have not been controverted by the respondents State. From the counter affidavit it is also apparent that initially the Lady Extension Officers were receiving their salary from the non plan head. These statements made in the writ applications have not been controverted by the respondents State. From the counter affidavit it is also apparent that initially the Lady Extension Officers were receiving their salary from the non plan head. It was only after issuance of the letter dated 3rd June, 1998 that the mode of payment of salary and allowance to the Lady Extension Officers were directed to be changed putting it in the plan head. This order was challenged by Lady Extension Officers organization by filing C.W.J.C.No.5572 of 1998. The operation of the impugned order was stayed and the direction was issued to make payment of their salary without changing the mode of payment. So far the service conditions of Lady Extension Officers are concerned that was kept pending for consideration and the writ application has still not been decided. In the given facts and circumstances of the case the respondents had no other option than to continue with the similar conditions as it was existing on account of the ad-interim order passed in C.W.J.C.No.5572 of 1998. 11. It has been admitted in the counter affidavit that the service conditions rules of Lady Extension Officers has yet not been framed. Considering this admission there was no reasons for the respondents to make any change in the service conditions of lady Extension Officers as per direction of this court in C.W.J.C.No.5572 of 1998. The respondents had to maintain status-quo. Petitioners should have continued to receive their salary from the non plan head and should not have been either transferred or any change should have been made in the service condition only after disposal of C.W.J.C. No.5572 of 1998 or after framing the service conditions rule any change could have been brought. Since it has not been done I find that there was no reason for issuance of impugned order no. 126 dated 4.5.2007 by the Commissioner-cum- Secretary, Rural Development Department as well as the order contained in Memo no. 1624 dated 22.2.2007. 12. In the counter affidavit it has been slated that the letters were issued in compliance of the direction in C.W.J.C. No.6543. of 1991, M.J.C.No.294 of 2000 and 1839 of 2005. The reason which has been assigned is not at all satisfactory. 1624 dated 22.2.2007. 12. In the counter affidavit it has been slated that the letters were issued in compliance of the direction in C.W.J.C. No.6543. of 1991, M.J.C.No.294 of 2000 and 1839 of 2005. The reason which has been assigned is not at all satisfactory. This being the admitted fact that initially the petitioners appointment was made at district level and till now the State level cadre has not been created by framing service conditions Rule either in exercise of constitutional power under Proviso to Rule 309 of the Constitution of India or under any statutory provisions. In the given circumstance, on the basis of any resolution petitioners service conditions could not have been changed specially when the impugned orders does not decide the promotional avenues of the petitioner or any details regarding their service conditions. The question of changing the service condition of the petitioners on the basis of the impugned orders cannot be held to be in accordance with law. 13. In this view I find that the impugned orders have been issued by the respondents in arbitrary exercise of their powers. The pre conditions for either deciding or changing the service conditions of the petitioners was by framing rules as provided under the Constitution. That has not been done. The statement made in Counter affidavit that petitioners were not appointed as government servant, and they were employees of D.R.D.A. which is a society registered under Societies Registration Act is also not correct. Petitioners after their appointment were receiving their salary from non plan head. The respondents made an attempt to change the mode of payment of their salary by issuing letter no. 4585 dated 3.6.1998, but operation of that order was stayed by the orders of High Court. Petitioners were admitted to annual increment, contributing to Provident fund. In their appointment reservation policy of the government was followed. Suddenly the Government can not treat them as employee of D.R.D.A. By the impugned orders, though the petitioners have been absorbed as government servant but if continuity in service is not allowed from the dates of their appointment, they are certainly going to loose their seniority, promotional avenues, pensionary benefits and all other consequential benefits for which they are entitled. Since impugned orders have been passed without deciding these aspects, they are arbitrary and as such quashed. 14. Since impugned orders have been passed without deciding these aspects, they are arbitrary and as such quashed. 14. The respondents are directed to first decide the service conditions of the petitioners as well as their cadre only thereafter any transfer order can be passed. 15. The writ application is allowed. The office order no. 126 dated 4.5.2007 issued by the Commissioner-cum- Secretary, Rural Development Department, Government of Bihar, treating the petitioners, Patna in pursuance of their absorption as Government servant on the basis of order contained in Memo no. 1624 dated 22.2.2007 is quashed. The respondents are directed to frame service conditions Rules of the petitioners, within six months of this order. Deciding all relevant aspects attached to their service. Only thereafter any order of transfer could be passed against the petitioners.