IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18693 of 2009 MANU YADAV S/O LATE DHANI YADAV R/O VILL- KAMLICHAK, P.S. RAMPUR, DISTT. GAYA Versus 1. THE STATE OF BIHAR, THROUGH THE PRINCIPAL SECRETARY DEPTT. OF BUILDING CONSTRUCTION AND HOUSING, GOVT. OF BIHAR, PATNA 2. BIHAR STATE HOUSING BOARD THROUGH THE CHAIRMAN CUM MANAGING DIRECTOR BIHAR STATE HOUSING BOARD, PATNA 3. SECRETARY BIHAR STATE HOUSING BOARD, PATNA For the Petitioner : M/s Banwari Sharma, Shiv Kumar, Advocates. For the Board : Mr. Rajiv Nayan Singh, Advocate. ----------- 06. 22.02.2010 Heard learned counsel for the petitioner and the counsel for the Bihar State Housing Board(hereinafter referred to as the Board). 2. Petitioner who earlier served the Board as chaukidar on daily wage has filed this writ application assailing the reasoned order dated 13.11.2008, passed by the Chairman-cum-Managing Director of the Board, Annexure-13, whereunder his representation filed against the order dated 6.1.2001, Annexure-6 regularizing the services of 13 daily wage chaukidar was rejected ignoring the seniority claim of the petitioner as according to the petitioner, item nos. 3 to 11 of the order dated 6.1.2001 were below him in the seniority list of the daily wage chaukidar maintained by the Board but they have been regularized in the service of the Board in appreciation of their status as member of extremely backward class and petitioner has been ignored as he belongs to backward 2 class. Counsel for the petitioner submitted that exercise to regularize the service of the daily wage chaukidar in the Board was taken pursuant to the orders of the Hon’ble Supreme Court dated 13.2.1991, Annexure-4 and in compliance thereto earlier 192 daily wage earners were regularized without applying any reservation policy, which fact is admitted in paragraph-16 of the counter affidavit but while considering the case of the petitioner the reservation policy applicable on the date of the order i.e. 6.1.2001, Annexure-6 was applied to the case of the petitioner and others and thereby petitioner’s better claim of seniority was ignored and service of item nos.3 to 11 was regularized on the ground that they belong to extremely backward class. Such action of the authorities of the Board is violative of the clear directions of the Hon’ble Supreme and this Court contained in order dated 29.8.1997 passed in C.W.J.C. No.3630 of 1992, Annexure-5, operative portion whereof is quoted hereinbelow for ready reference :- “ In that view of the matter, this Court holds that only an operative direction which it can pass is that after the regularization of 192 persons, in respect of the remaining persons i.e. 65 persons the said Board will follow the following direction in the matters of regularization :- i) Such regularization must be on the basis of seniority of the daily wage workers. ii) In matters of such regularization, reservation policy as was existing on the date of the Supreme Court order ought to be followed. 3 iii) The process of regularization directed by the Supreme Court order in 1991 may be completed within a period of next six months from the date of receipt/communication of a copy of this order.” 3. Counsel submitted that the judgment of the Single Judge dated 29.8.1997, Annexure-5 was also considered by the Division Bench of this Court under orders dated 28.3.2001 passed in M.J.C. No.3937 of 2000 and analogous matters and the directions aforesaid were approved but ignoring such observation of the Hon’ble Court the authorities applied the reservation policy which was in vogue on 6.1.2001 the date of the order, Annexure-6 only to accommodate the candidates of the extremely backward class. 4. Counsel for the Board has opposed the aforesaid submission of the counsel for the petitioner. He states that the authorities of the Board have applied the reservation norms and roaster as was applicable on the date of the order of the Supreme Court dated 13.2.1991 passed in Civil Appeal No.766 of 1991, Annexure-4 and prior thereto itself Section-4 of the Reservation act had come into operation with effect from 1.11.1990 in compliance whereto the candidates belonging to the extremely backward class were regularized against the roaster point meant for extremely backward class as 4 available on the date of the order of the Hon’ble Supreme Court dated 13.2.1991. 5. Aforesaid submission is being refuted by the counsel for the petitioner in rejoinder. He states that in terms of the orders of the Hon’ble Supreme Court dated 13.2.1991, Annexure-4 the regularization was to be made w.e.f. 19.9.1990 and status as daily wager had to cease w.e.f. 19.9.1990. Aforesaid direction was also reiterated by the Division Bench of this Court under orders dated 3.5.2001 passed in L.P.A. No.419 of 2001, Annexure-10. In view of the aforesaid direction of the Hon’ble Supreme Court and this Court learned counsel for the petitioner submitted that on 19.9.1990 there was no separate reservation category for the candidates of extremely backward class and daily wager of extremely backward class category ought to have been considered for regularization in the category of the backward class daily wage earner and as the petitioner was senior to item nos.3 to 11 in the backward class category he ought to have been regularized under order dated 6.1.2001, Annexure-6. 6. While this order is being dictated learned counsel for the Board pointed out that the case of extremely backward class category candidates is protected in terms of the provisions contained in Section-4(cha) of the Reservation Act as thereunder Legislature mandates that 5 Section-4 will apply in all such cases in which formality of appointment process has been undergone until 28.4.1993 but appointment letter has not been issued and applying Section-4(cha) of the Reservation Act the case of the extremely backward class candidates was considered separately. Aforesaid submission was also made by the counsel for the Board in L.P.A. No.419 of 2001 which was disposed of under orders dated 3.5.2001, Annexure-10 and this Court observed as follows :- “Admitted fact is that the matter was finally decided by the apex court and there was direction to regularize 265 workers and as such non-observance of the same by any authority is gross contempt of Court. If the Board has any confusion with regard to any matter, proper course would have been to file appropriate application before the Apex Court. However, since the order was passed in 1991 and uptill now no such application has been filed before the Apex Court, this Court cannot make any order which will be contrary to the order of the Apex Court. In that view of the matter, we refrain from deciding the point raised by the appellant foe the aforesaid reason” 7. Having heard counsel for the parties as also having perused the order passed by the Chairman-cum- Managing Director of the Board dated 13.11.2008, Annexure-13, I am satisfied that the learned Managing Director has not considered the aforesaid aspect of the matter that on the date fixed by the Supreme Court i.e. 19.9.1990 for regularization of the 257 daily wage earners 6 there was no separate reservation category of extremely backward class and extremely backward class candidates should also have been considered for regularization along with backward class category candidates. In the circumstances, the representation filed by the petitioner against the order dated 6.1.2001, Annexure-6 has been erroneously rejected under the reasoned order dated 13.11.2008, Annexure-13, which is accordingly, quashed. 8. The Managing Director of the Board should pass appropriate orders in compliance of my observations aforesaid as early as possible, in any case within two months from the date of receipt/production of a copy of this order before the Managing Director. 9. This writ application is, accordingly, disposed of. AFR Rajesh/ ( V. N. Sinha, J.)