High Court Patna High Court - Orders

Sushil Prasad &Amp; Ors vs The State Of Bihar &Amp; Ors on 8 April, 2011

Patna High Court – Orders
Sushil Prasad &Amp; Ors vs The State Of Bihar &Amp; Ors on 8 April, 2011
                 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.
                                               -----------

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.)