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2011 DIGILAW 729 (PAT)

Sheo Bhajan Prasad Diwakar v. State of Bihar through the Chief Secretary, Old Secretariat, Patna

2011-04-21

JAYANANDAN SINGH

body2011
ORDER All the petitioners are erstwhile Instructors appointed in a scheme originally formulated by the Government of India in 1981-82 known as Non-Formal Education Programme, for giving non-formal education to the children of 6-14 years at different centers in the State. To run the centers, posts of Supervisors and Instructors were created on fixed stipend and appointments were made in a phased manner after adopting due procedure of advertisement and selection. This Programme continued under the control of the Department of Adult and Non-Formal Education of State Government from 1984 to 1995. It is stated that, in fact, the Programme continued up to 2001 when it was finally closed. 2. The question arose before the Government as to what would happen to the incumbents appointed under the Programme as Instructors and Supervisors. The matter remained in the process of consideration at different levels. In the meanwhile, some of the Supervisors moved this Court through CWJC No.8110 of 2001. The said writ application was finally taken up on 02.07.2009 when this Court was informed by learned counsel for the respondents that the matter of absorption of the Supervisors employed under the Programme was under active consideration by the Government. In the circumstances, the writ application was disposed of with a direction to the respondents to complete the process of absorption of erstwhile Supervisors as per their own decision reflected from Annexure-13 and 13/A of that writ application. This Court is informed that thereafter final decision was taken in respect of their absorption and all the Supervisors employed under the Programme have been absorbed against class-III post available under different Departments in the State. 3. The submission of learned Senior Counsel for the petitioners is that, if the State Government had taken a policy decision to absorb the services of Supervisors employed under Programme who were thrown on road on account of closure of the Programme, the petitioners, who are Instructors employed under the same Programme, should also be given the same treatment. He submits that mere fact that the others were Supervisors and these petitioners are Instructors is of no relevance and gives no justification to the respondents in not applying the same policy in respect of these petitioners also. He submits that the petitioners do not insist for class-III posts as many of them may not have the qualification for the same. He submits that the petitioners do not insist for class-III posts as many of them may not have the qualification for the same. But since they were also thrown on road on account of closure of the Programme by the State Government after more than a decade, as a model employer the State Government should take them into service by absorption even on class-IV posts as per the vacancies available in different Departments. 4. Counter affidavit has been filed and it is stated that the Instructors of the Programme have been given weightage for their selection as Panchayat Teachers or any other contractual appointment under the Panchayats. Learned counsel for the respondents submits that the Supervisors have been absorbed in regular service against class-III posts. He submits that the decision of absorption of Supervisors against class-III posts in regular service cannot be applied in respect of these Instructors since both were two posts of two ranks drawing different stipend. 5. The admitted fact is that the Programme was introduced by Government of India and adopted by the State Government more than a decade back. The Supervisors were appointed in the Programme to supervise the running of the centers and Instructors were appointed to impart teaching in the centers. The role of these two functionaries in the Programme was of course different, but when the Programme was closed by the Government both the category of employees of the Programme came on road. It is admitted that in respect of Supervisors the State Government has taken a decision to absorb them in service against regular class-III posts which they have done. Denial of the same in respect of the Instructors and give them only weightage for consideration of their cases in any selection process, only on account that they had worked in the Programme at a lower hierarchy has no rationale. If as a model employer like State Government has taken a decision to absorb all the Supervisors of the closed Programme in regular service, the same policy decision has necessarily to be applied in respect of other employees of the Programme also who were thrown on road along with the Supervisors on account of closure of the Programme. Any distinction in this respect cannot be taken as relevant and justified for the purposes of denying the benefits of that policy in respect of other employees of the Programme also. 6. Any distinction in this respect cannot be taken as relevant and justified for the purposes of denying the benefits of that policy in respect of other employees of the Programme also. 6. In the circumstances, this Court finds that the respondents are not justified in not absorbing the Instructors also in regular service at least on class-IV posts and on the lines they have absorbed the Supervisors of the Porgramme. In the circumstances, this Court directs the respondents to apply the same policy in respect of the Instructors of the Programme also and absorb them in regular Government service as per their qualification and eligibility. For this purpose, the respondents shall identify such Instructors of the Programme who were validly appointed and subsequently stand thrown out on account of closure of the Programme and issue orders for their absorption positively within a period of four months from the date of receipt/production of a copy of this order. 7. The writ application is, accordingly, allowed with the aforesaid observations and directions.