Bijay Kumar Mishra S/o Suresh Mishra v. State of Bihar through Principal Secretary General Administration Department, Patna
2019-01-07
ASHUTOSH KUMAR
body2019
DigiLaw.ai
JUDGMENT : 1. Heard the learned counsel for the petitioners and the State. 2. The petitioners who were appointed on Class-IV posts in Census Department were retrenched. Later, barring two petitioners, namely petitioners no. 12 and 16, the other petitioners were given age relaxation in the year 2004 for being considered for appointment on the Class-IV post in the government. None of them were successful. Some of the retrenched employees approached this Court by way of writ petitions, seeking a direction to the Respondent-State/employer for considering the case of such retrenched employees for the purposes of their being adjusted/accommodated/appointed in Class-IV posts in different government departments. A Bench of this Court allowed such prayer and directed the State Government to adjust the petitioners against available vacancies in various departments. The State challenged the aforesaid decision of the High Court before the Apex Court where the order of this High Court was not sustained primarily on the ground that there was no scheme or resolution of the government for adjusting those retrenched employees in any government service. However, considering the fact that those persons had worked in the Census Department for quite some time and were retrenched, the Hon'ble Supreme Court, as a benevolent measure, directed that those persons, in the event of any vacancy arising in the government departments, would be given age relaxation for one time for the purposes of their being considered for appointment on Class-IV post. 3. Mr. Harsh Singh, learned advocate appearing for the petitioners has informed this Court that after the order passed by the Hon'ble Apex Court, some of the writ petitioners approached this Court intimating that no such effort is being made by the State Government to accommodate/absorb/appoint such retrenched employees in different Class-IV posts. Since in the order passed by the Apex Court, there was no specific direction prohibiting the government from coming out with any Circular/decision in that regard and that with the bifurcation of the State of Bihar into two States, the other being the State of Jharkhand, which in its wisdom had come out with a Circular for absorbing such retrenched employees of the Census Department, this Court directed that the government must come out with a proposal to deal with such retrenched employees of the Census Department who had not yet been accommodated/absorbed/appointed in any other government department. 4.
4. An advertisement was, thereafter issued in the year 2013 for appointment on Group-D (Class-IV posts). All the petitioners, except petitioners no. 12 and 16, applied but their applications were rejected on the ground that they had earlier availed of one time age relaxation, way back in the year 2004 and were placed much below in the list for their consideration to be appointed on Class-IV posts. 5. Mr. Harsh Singh, learned advocate appearing for the petitioners has submitted that the Circular/Resolution of the government for giving one time age relaxation was passed in the year 2013 and therefore it had to be given prospective operation and any age relaxation which was availed of by the petitioners earlier to the coming in force of the aforesaid Resolution was arbitrary and without any rationale. 6. The aforesaid argument is also sought to be fortified by a judgment of the Supreme Court delivered in Kusumam Hotels (P) Ltd. Versus Kerala State Electricity Board and Ors., [ (2008) 13 SCC 213 ], wherein it was declared by the Supreme Court that it is a well settled principle of law that the doctrine of promissory estoppel also applies to the State. The Supreme Court, in the aforesaid judgment, has gone on to state that it is also not in dispute that all administrative orders, ordinarily, are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must also have the power to do so. 7. The aforesaid observation of the Supreme Court would not apply to the facts of this case. The reason for saying so is that the Supreme Court, while passing an order in appeal against a directive of the Patna High Court to consider the cases of such retrenched employees for being appointed in government job, took note of the fact that there was no scheme whatsoever formulated by the State Government for accommodating/absorbing/appointing such retrenched employees in government service on Class-IV post (Group-D). Pursuant to such an observation and further clarificatory orders by this Court, such Resolution which is being relied upon by the petitioners was passed in the year 2013. 8.
Pursuant to such an observation and further clarificatory orders by this Court, such Resolution which is being relied upon by the petitioners was passed in the year 2013. 8. What is relevant to note and is being noted is that the Supreme Court as well as the Resolution referred-to-above clearly take note of the fact that one time age relaxation shall be given to such retrenched employees for the purposes of their appointment. This does not necessarily mean that one time age relaxation has to be given to a person who has already availed of such relaxation in the past. No doubt, the Resolution of the government was passed in the year 2013, nonetheless it would only cover the cases of such retrenched employees who had never availed of the age relaxation. Such a concession has been given by the Supreme Court or taken into account in the Circular/Resolution of the State Government only as a benevolent measure for accommodating people who erstwhile were employees of the Census Department but for the discontinuance of the aforesaid department, they have been rendered jobless. 9. The second aspect of the matter which needs to be deliberated upon and noted is that age relaxation means relaxation for few months or years. The advertisement was of the year 2013. On a practical reasoning as well, these petitioners who had served the Census Department in the year 1991 would be now on the verge of retirement. In such a situation, giving age relaxation to them at this stage and that also when they have already availed of the same earlier and could not succeed in getting appointed to the Class-IV posts will not be proper. They cannot now fall back upon such Circular to seek a direction/mandamus from this Court for consideration of their cases. 10. So far as the case of petitioners no. 12 and 16 are concerned, with some reservation, this Court is inclined to give them the concession of making a representation before the concerned authority, which will take into account that they had never availed of the age relaxation and pursuant to the Circular/policy decision of the State Government, they would require to get at least one time age relaxation for the purposes of appointment on Class-IV post in the government. While deciding on such representation, which shall be filed by petitioners no.
While deciding on such representation, which shall be filed by petitioners no. 12 and 16 within a period of four weeks from today, the concerned respondent-authority shall also take into account their respective ages as on date, the suitability of those petitioners with the class of job in which they will be accommodated and other requirements. It is only after consideration of all these necessary factors, that the petitioners no. 12 and 16 will be considered for being empanelled for the purposes of their appointment. 11. With the aforesaid directions/observations, the present writ petition stands disposed off.