IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.12400 of 2003
1. SUSHIL PRASAD s/o late Raja Ram Mahto, resident of
Laldarwaja Mirchi Talab, Dhobi tola, P.S.- Kotwali- Dist- Minger.
2. Om Prakesh Kushwaha, son of Late Shiven mandal, resident of
Mohalla Madhopur, Kushwaha Tola, P. S- Basudeopur, District-
Munger.
3. Wakil Yadav, son of Bishuni Yadav, resident of Mohalla- Lal
Darbaja Mirchi Talab, P.S- Kotwali, Dist- Munger.
4. Baleshwar Yadav, son of late Ram Swarup Yadav, Resident of
Mohalla- Lal Darwaja, Gumti No.1 P.S- Kotwali, Dist- Munger
5. Sanjay Sah son of Late Kanti Lal Sah,resident of village Ram
Nagar, Dist- Munger.
6. Kishori Paswan Son of Gainoo Paswan, resident of village
Baryarpur P.S Baryarpur, Dist- Munger
7. Brahmdeo Choudhary, son of late Lachko Choudhary, Resident
of Mohalla Kaura Maidan, P.S- Kashim Bazar, Dist- Munger.
8. Rajesh Kumar@ Rajesh Kumar Mandal, son of nageshwar
Mandal, resident of Mohalla- Basudeopur P.S- Dist - Munger.
9. Upendra Mandal, son of Sukhdeo Mandal, resident of village-
Adalpur, P.S- Dharhara, Dist- Munger.
Versus
1. THE STATE OF BIHAR
2.The Commissioner - cum- Secretary, Department of Health Govt
of Bihar, Patna.
3. The Director,health Services, Department of Health Govt of
Bihar, Patna.
4. The civil surgeon- cum-Chief Medical officer, Munger.
5. the district Malariya officer, Munger.
6. The District Magistrate, Munger.
7. The District Development Commissioner, Munger.
8. The Superintendent, Sadar Hospuital, Munger
9. The Deputy Superintendent, Sadar Hospital, Munger.
10. The Deputy Collector( Establishment), Munger.
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For the Petitioners : M/s Achal Kumar Sinha and Mr. Rana Pratap
Singh
For the State : Mr.Zaki Haider,A.C. to G.A.6
7 8.4.2011 The petitioners are seasonal D.D.T sprayers . They are
not in government service but pursuant to Malaria Eradication
Programme of the Government on seasonal basis, here after
here, they were employed for spraying D.D.T as an anti
Malaria drive. It appears that considering the regularity of their
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engagements by the State, though on seasonal basis, State took a
decision to empanel these employees for absorption in
government service. Directions were accordingly issued to all
the districts. Upon empanelment, Class IV posts ,as available in
the district ,were to be made for their absorption apart from
others. The petitioners first came to this Court with a grievance
that no work of empanelment was being done in the district. This
Court disposed of the writ petition with a positive direction to
the Collector-cum-District Magistrate, Munger to hold meeting
and consider the case of the petitioners. The petitioners again
approached this Court in a proceeding for initiating contempt,
which was disposed of holding that the Collector was looking
into the matter and the order of this Court had been substantially
complied with. The petitioners have now again came to this
Court stating that notwithstanding the decision of the State
Government and the direction of this Court, they are not being
empanelled as they are required to be empanelled being
seasonal D.D.T. sprayers.
Several counter affidavits have been filed.
Amendment petition has been filed by the petitioners enclosing
empanel list, as prepared, at the district level to show that they
have been left out, whereas several others ,similarly situated,
have been included in the panel. They sought quashing of the
said panel. The amendment petition is allowed but at this
juncture I may note that the relief, sought for, in the amendment
petition of quashing, the panel cannot be entertained inasmuch
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as all parties are likely to be adversely affected by quashing of
the said panel. Having not made party , no order adverse to
them can be passed in their absence but this does not come in
way of the petitioners in seeking their own empanelment.
A supplementary counter affidavit has been filed by
the District Malaria Officer after amendment petition was filed.
In the supplementary counter affidavit, he as categorically stated
that the name of the petitioners were duly sent by him for
empanelment to the District Magistrate-cum- Collector, Munger.
He admits that on such recommendation the petitioners’ names
are to be found in the panel, as prepared at the district level.
What is surprising is that he has chosen to give a justification
for the same as well. The justification is that on 16.3.2006, a
Circular was issued by the Chief Secretary in regard to
regularization/ absorption of the employees in government
service. The State Government Circular is Annexure E to the
supplementary counter affidavit. A mere reference to the said
Circular would show that it does not apply to the case of the
petitioners. That is a general Circular issued with regard to
certain daily wages workers, and that prescribed that those daily
workers, who had worked more than 240 days in a year for last
five years before a cut of date in 2005, had to be empanelled for
absorption/regularization. It dos not either over ride the State
Government’s decision in relation to the petitioners, who are
seasonal D.D.T sprayers. They are not regular daily wagers.
Their case is a special case and by way of think they are seasonal
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employees. Their case being a special case, the general Circular
would not over ride, more so, when there is a clear admission
that some such persons are there in the list and some have been
left out. Thus, the plea of the State justifying not inclusion the
names of the petitioners in the panel cannot be justified. I may
also note another plea that has been taken in another counter
affidavit. The plea is that the petitioners are to be employed in
the Malaria Department, which is a special cadre and it is only
the Chief Medical Officer, who can make such appointment.
Thus, their empanelment at district level for district level
employment in Class IV posts cannot be done. The argument is
noted only to be rejected. The policy of the State was clear that
they had to be empanelled in any Class IV post available in the
district. It was not empanelment for employment in Class IV
post in the Malaria Department. These are only pretence and
pretext for depriving the petitioners of their legitimate right.
In course of argument, learned counsel for the
petitioners submitted that pursuant to application made under
Right to Information Act they had been able to get nothing. The
people who had junior to the petitioners and had worked for
D.D.T. have been empanelled and some have been employed but
regrettably as the facts have not been brought on record duly
supported by affidavit, this Court cannot take note of it but it
could not preclude the authority from taking note of this fact if
they are brought to their notice and correct any abrasion in that
regard. Having considered the matter, in my view, the writ
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petition has to be allowed, under the circumstances, as noted
above with a direction to the Collector-cum-District Magistrate,
Munger to immediately within one month, take all necessary
steps and revise the panel, as prepared, for giving employment in
Class IV service, which became available in the State in respect
of the petitioners and then proceed strictly in order of seniority-
cum -merit for the said purposes.
With the aforesaid observation and direction, the writ
petition is disposed of.
Singh ( Navaniti Prasad Singh, J.)