IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6762 of 2005 Akhtar Khan, Son of Habib Khan, resident of village at Darouli, P.S.-Darouli, District-Siwan. –Petitioner. VERSUS 1. The State of Bihar. 2. The Commissioner, Saran, Chapra. 3. District Magistrate, Saran, Chapra. 4. Additional Deputy Collector, Saran, Chapra. 5. Block Development Officer, Ekma. –Respondents. ----------- 07 29.11.2010 It appears that in the office of the Block Development Officer (B.D.O.), Ekma, Saran, Chapra in the year 1985 there arose a vacancy for a jeep driver upon superannuation of a regularly appointed driver on the sanctioned post. The B.D.O. concerned sought permission of the A.D.M. (Establishment) but he refused permission for appointment on the ground that State Government had stopped recruitments. The B.D.O. then informed the A.D.M. that in view of the work being hampered in the absence of a driver he had recruited the petitioner on daily wages in 1988. He sought for regularization of the petitioner. The matter with recommendation reached the Divisional Commissioner, Saran, Chapra, who by his order as contained in Annexure-2 ordered that the petitioner’s services be regularized from the date of his initial appointment on daily wages. This order was passed by the Commissioner on 27.02.1991. It appears that the Collector, Saran at Chapra requested the Commissioner to reconsider the decision. The Commissioner communicated to the Collector that now the order having been passed and the petitioner having worked for such long period, there should be no review and, accordingly, the matter ended, notwithstanding the aforesaid, the - 2 - Collector refused to abide by the orders of the Commissioner and the petitioner continued to be treated as daily wages worker and not as a permanent employee. The result was that he was not getting the regular pay scale with increments and other benefits though he was working on a duly sanctioned vacant post. He has accordingly filed this writ petition virtually for implementation of the order of the Commissioner. It is further submitted at the Bar that since this writ petition was filed by the petitioner the respondent-B.D.O. and other have stopped taking work from the petitioner and the vacancy still subsist. On behalf of the petitioner, it is submitted that having taken work from the petitioner for all these years (almost two decades) respondents are stopped from denying the right to the petitioner of regularization. A counter affidavit has been filed in which the stand of the State is that in the year 1986 State had imposed a ban on new recruitments. The Collector who has sworn the counter affidavit states that in view of the ban as imposed by the State Government in the year 1986, petitioner’s appointment of the year 1988 could not be considered to be valid. It is for this reason the Collector had not accepted the order of the Commissioner and had sought a review of the order. In the counter affidavit, it is not denied that the post was duly sanctioned and vacant. It is also not denied that it was essential for the B.D.O. to have a jeep driver otherwise the B.D.O. could not work effectively. It is also not denied that the petitioner had been - 3 - working since 1988, that is, almost two decades and had been regularly paid though at the rate of daily wages. In my view, at this stage, it is not open for this Court to go into the correctness or otherwise of the order of the Commissioner. It is surprising that a Divisional Commissioner issues an order to the Collector, who seeks review, the review being rejected, still the Collector refuses to implement the order. It is, thus, petitioner’s prayer for issuance of Writ of Mandamus implementing the order of the Commissioner by the Collector. In my view, the case is squarely covered by the judgment of the Apex Court in the case of Bhopal Sugar Industries Ltd. Versus Income-tax Officer, Bhopal since reported in AIR 1961 Supreme Court 182 wherein the Apex Court has held thus:- “Where the Income-tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income Tax Appellate Tribunal, had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him, such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is on the hierarchy of Courts. In such a case a writ or mandamus should issue ex debito justitiae to compel the Income-tax Officer to carry out the directions given - 4 - to him by the Income Tax Appellate Tribunal. The High Court would be clearly in error if it refuses to issue a writ on the ground that no manifest injustice had resulted from the order of the Income-tax Officer in view of the error committed by the Tribunal itself in its order. Such a view is destructive of one of the basic principles of the administration of justice.” Thus, this Court cannot go into the question of correctness of the judgment of the Commissioner and a Mandamus would issue to the Collector to act in accordance with the direction as issued by the Commissioner for regularizing the services of the petitioner. In the fats of the present case, petitioner’s services stood terminated with effect from 03.07.2006, the things materially changed. Initially, the petitioner has not been working since 2006. Petitioner asserts that there still exists vacancy on the aforesaid sanctioned post of a driver. I, therefore, direct the Collector, Saran, Chapra to take steps for filling of the vacancy of the aforesaid post. The petitioner would not only be entitled to apply but would be entitled to be considered giving full age relaxation in the facts of the case. Further, petitioner’s work experience in the same very department on the same very post for such a long time would be valid criteria to appoint the petitioner on the said post permanently from the date of his selection. This process, the Collector must complete within two months from the date of production of a copy of this order before him. From earlier orders passed in this case, it appears that - 5 - the cost of Rs.500 was imposed upon the Collector for not filing counter affidavit in time. In the counter affidavit, which has now been filed, it is stated that instructions were duly sent but as it was reported that the case was stood dismissed for default no counter affidavit could be filed. Earlier after the case was restored, later on no information was given to the Collector for filing counter affidavit. Considering the aforesaid, I recall the earlier orders directing imposition of cost as against the Collector. With these observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)