IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.645 of 2002 KAUSHLENDRA KUMAR, S/O RAM BADAN THAKUR, R/O VILLAGE-MOHHAMADPUR BIRAULI, P.O.-BIRAULI RURAL INSTITUTE, P.S.-PUSA, DISTRICT- SAMASTIPUR. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. VICE-CHANCELLOR, RAJENDRA AGRICULTURAL UNIVERSITY PUSA, SAMASTIPUR, DISTRICT- SAMASTIPUR (BIHAR). 3. REGISTRAR, RAJENDRA AGRICULTURAL UNIVERSITY PUSA, SAMASTIPUR, DISTRICT- SAMASTIPUR. 4. DIRECTOR, ADMINISTRATION, RAJENDRA AGRICULTURAL UNIVERSITY, PUSA, DISTRICT- SAMASTIPUR. 5. COMPTROLLER, RAJENDRA AGRICULTURAL UNIVERSITY, PUSA, SAMASTIPUR. 6. RAM LALIT MISHRA. 7. PREMCHAND JEE. 8. RAMASHANKAR SINGH. 9. INDRA MANI PRASAD. 10.JAGDISH RAI. 11.RAJ KISHORE RAI. 12.MITHLESH KUMAR JHA. 13.CHANDRA MAULI SHARAN 14.RAM KUMAR SHARMA NO.1 15.RAM BINID PANDEY 16.RAM KUMAR SHARMA NO.2 17.ARBIND KUMAR PODDAR 18.ARUN KUMAR SINGH 19.RAJENDRA SAHNI 20.SANTOSH KUMAR 21.ARUN KUMAR 22.RAJIV KUMAR SINGH 23.RAMESHWAR PRASAD SINGH 24.SHAILENDRA KUMAR 25.AWADHESH KUMAR RESPONDENT NOS. 6 TO 25 ARE ALL EMPLOYEES AS ASSISTANT UNDER RAJENDRA AGRICULTURAL UNIVERSITY PUSA, SAMASTIPUR. …………RESPONDENTS. ----------- For the Petitioner : Mr. Ganesh Prasad Singh, Sr. Adv., Mr. Nirmal Kumar Sinha, Adv. and Mr. Arun Kumar, Adv. For the University : Mr. D.K.Sinha, Sr.Adv. and Mr. Chandra Mohan Singh, Adv. For Private Res. : Mr. Y.V.Giri, Sr.Adv., Mr. R.K.Giri, Adv. and 2 Mr. Kinkar Kumar, Adv. For the State : Mr. Shashi Shekhar, AC to SC-20. ----------- 13 11.03.2010 In this writ application petitioner has raised certain questions in respect of implementation of the scheme formulated by the Hon’ble Apex Court in its order, as contained in Annexure-6 with the rejoinder of the petitioner to the counter affidavit of respondent no. 2 to 5, for regularization of casual employees of the University by taking up an exercise for filling up regular vacancies as per usual procedure. For proper appreciation of the issues the scheme formulated by the Apex Court is quoted hereinbelow for ready reference: So far as class-IV posts are concerned, regular appointment against available vacancies for regular sanctioned posts under the Bihar State Agricultural Universities Act, should be made by appointing the casual employees who have worked in the Rajendra Agricultural University for more than 15 years against 35% of available vacancies provided such employees have requisite qualification for regular appointment and they are also physically fit for permanent absorption. In respect of balance 65% vacancies, invitation of applications by open advertisement by following the usual procedure for filling up the vacancy in the University services should be made. The 3 casual employees of the Rajendra Agricultural University who will not be absorbed against 35% reserved quota as indicated hereinbefore, will be entitled to apply for the said 65% posts. The following criteria will be followed for selection against the 65% posts. For each year of completed service of the casual employees, 2% marks will be given for their experience upto the maximum of 30%. For education and other qualifications as laid down in the advertisement 50% marks would be given and 20% marks will be allotted on the basis of performance in the interview. It is clarified that for the casual employees year of completed service will mean, by ignoring artificial breaks, 240 days of service in a year. There will be relaxation of age upto 50 years in the case of casual employees serving the Rajendra Agricultural University in the State of Bihar and appointment will be given provided such employees are physically fit for regular absorption. The same principle will also be followed for filling up the Class-III posts after giving the same relaxation of age. The casual employees who will not be absorbed either against 35% of reserved quota or balance 65% vacancies as indicated above, will be disengaged from the service after exercises of selection process is completed. Such exercise should be taken up as early as practicable and the selection process should be completed within a period of six months from today. As per the case of the University, it 4 completed the exercise following the scheme formulated by the Apex Court and absorbed the causal employees under the said 35% quota and appointed persons against the 65% quota by advertisement etc. as laid down by the Apex Court considering such causal employees also who applied against 65% quota, after giving them due weightage for their service rendered in the University and relaxing their age. Petitioner was not a casual employee of the University. Therefore, he applied for his appointment against Class-III post against the 65% quota to be filled up through usual selection process i.e. by advertisement etc. Selection process was held and panel was prepared in which the petitioner was much below in the panel and beyond the consideration zone. Therefore, he could not get the appointment. But he found that in the panel for class-III posts some casual employees were above him who had in fact work experience in the University against class-IV posts. He also found out that for work rendered in the University as causal employee against class-IV posts they had been given weightage as per the directions of the Apex Court. Due to this weightage they were 5 empanelled and got their ranking above him in panel for class-III posts. This has been challenged in this writ application by the petitioner by making such causal employees, who were empanelled in the panel for Class-III posts above him, as respondent nos. 6 to 25. The application was heard and by order dated 28.06.2006 notices were issued to the private respondent nos. 6 to 25. Notices were served and they have appeared through their counsels. When the matter was heard in detail on 08.02.2010, learned counsel for the petitioner pointed out that he has specific grievance against respondent nos. 6, 7, 9, 11, 18, 22 and 23 as they had worked against class-IV posts throughout and weightage of their service on Class-IV posts has been given to them for consideration of their cases for empanelment for class-III posts. Learned counsel for the University submitted that this specific case of the petitioner had not come to his notice and, therefore, he prayed for adjournment for seeking instructions from the University in this respect and file a reply, if necessary. Case was therefore, adjourned and finally it has been heard in full today. 6 Learned senior counsel for the petitioner submits that as per the scheme formulated by the Apex Court, the work experience of a casual employee of having rendered service in a particular category had to be taken into account for consideration of his case for appointment in that very category only. He submitted that the order of the Apex Court was quite clear and by no stretch of imagination it can be read into it that the work experience of a causal employee against class-IV post can be taken for consideration of his case against class-III post. In this respect he has referred to a chart of casual employees annexed as Annexure-7 to the writ application. Learned counsels for the parties are in agreement that this chart was placed before the Apex Court, and in the light of factual position that so many casual employees were working in the University for more than a decade, the Apex Court had formulated the scheme. He has shown from the chart that it mentioned the nature of work performed by the particular causal employees in the University since the date of their engagement, which shows that certain employees were working against Class-III posts of 7 Assistant, Typist etc., whereas many other employees were working against class-IV posts like sweeper, as a helper to the plumber, chowkidar etc. He submits that in view of this nature of work being performed by them, as placed on records by the University before the Apex Court, the Apex Court had laid down for benefit to them of the work experience. Hence, by no stretch of imagination it can be inferred that the scheme formulated by the Apex Court permitted the recognition of the service of a causal employee on a class-IV post for grant of weightage of service for appointment against class-III post. Learned senior counsel for the respondents seriously disputes this interpretation of the learned senior counsel for the petitioner. He submits that the engagement of the respondents was not against a particular post. Their engagement in the University was only as causal worker and they were made to work against class-III post also as and when the need arose. He submits that since the appointment of the respondents as causal employees was not specifically against class-IV posts it cannot be assumed that they had work experience only on 8 class-IV posts and as such they were not entitled to get the advantage of their work with the University for their appointment against class-III posts. In this connection, he has referred to an office order of the University dated 18.07.1994, annexed as Annexure-X/1 with the supplementary counter affidavit, filed on behalf of respondent nos. 6 to 25 on 23.02.2010. On the basis of this office order he submits that the vacancies in the different departments of the University were not categorize as class- III and class-IV; rather they were categorize as highly skilled, skilled, semi skilled and unskilled. He submits that as per their qualification the respondents were engaged in these categories differently. Therefore, their engagement in any of these categories can not be taken to be in a particular class. He submits that order of the Apex Court that the casual employees had to be given weightage of their service with 2% marks for each completed year of service, nowhere mentioned that weightage had to be given for that category only. He submits that order of the Apex Court clearly intended that the weightage had to be given to the casual employees for whatever class they applied 9 subject to their qualification and eligibility. Since the respondents were all qualified and eligible for appointment against class-III posts, they applied for the same under 65% quota fixed for direct appointment and they were given weightage for their service with University as per the scheme laid down by the Apex Court and were empanelled. Hence, he submits that the University did not commit any wrong in giving them weightage, as per the scheme, for consideration of their cases for empanelment for appointment against class-III posts, and being above in the panel and within the cut-off limit as per the vacancies, they were rightly appointed by the University. As stated earlier, on this specific issue learned senior counsel for the University had sought for and was granted adjournment to enable him to seek instructions and file a reply, if necessary. No reply has been filed by the University thereafter. However, Mr. Sinha learned senior counsel for the University submits that in view of the issue raised in this writ application the University Authorities are of the view that the matter requires re- examination at the University level. 10 Accordingly, this Court would have left the matter at this stage giving liberty to the University to examine the matter afresh and take a fresh decision in the matter in the light of the scheme laid down by the Apex Court. However, learned senior counsel for the petitioner insists that this Court should express its interpretation to the scheme formulated by the Apex Court and the manner it was required to be worked out. Accordingly, this Court has considered the scheme formulated by the Apex Court as quoted above in detail. From the wordings and expressions used by the Apex Court it is clear to this Court that the Apex Court never meant that the experience of a casual employee of his work against a class-IV post was to be considered for grant of weightage for consideration of his case for appointment against class-III post in the University. The order of the Apex Court shows that the details of the scheme were formulated in respect of class-IV posts separately. It laid down that 35% vacancies of class-IV posts had to be filled up by casual employees on the basis of their length of service and qualification and their physical 11 fitness and rest of the 65% vacancies of class- IV posts had to be filled up through usual procedure for filling up the vacancies in which the left over casual employees were also given liberty to apply. It was made clear that if they applied they were to be given weightage of their service in the manner that 2% marks had to be given to them for each completed year of service upto the maximum of 30% and 240 days of service in a year, ignoring artificial breaks, had to be taken as complete year of service for that 2% marks. Besides, they had to be given relaxation of age also. This shows that the scheme was laid down in detail in respect of filling up 65% vacancies of class-IV by giving due advantage to the left over casual employees of class-IV. The same principle had to be followed for filling up the class-III posts also after giving the same relaxation of age and weightage. Thus, from the order it appears that the scheme as laid down by the Apex Court had to be applied separately for class-IV vacancies and class-III vacancies. Therefore, in the opinion of this Court it was not open to the respondent University to give weightage to a casual employee of his work experience against class-IV post for 12 consideration of his case for appointment against class-III post. This Court is of the view that if that had been the intention of the Apex Court, instead of laying down the scheme separately for class-IV post and thereafter observing that the same will be applied against class-III posts also, the Apex Court would have laid down that scheme jointly for class-III and class-IV posts. The paragraph in which the scheme has been laid down starts as ‘so far as class-IV posts are concerned’. In the opinion of this Court if the Apex Court would have intended to give weightage to a causal employee for his work experience in the University, irrespective of the nature of the work performed by him, for consideration of his case for either of the two classes, the starting words in the order of the Apex Court would have been, ‘so far as class-III and class-IV posts are concerned’, or the like. Thus, it appears that interpretation of the order of the Apex Court as advanced by learned senior counsel for the respondents is not correct and the interpretation of the order as advanced by learned senior counsel for the petitioner appears to be in consonance with the intent and spirit of the order of the Apex 13 Court. Learned senior counsel for the respondents referred to two orders of this Court, namely one dated 25.02.2002 passed in C.W.J.C. No. 13880 of 2001 which is annexed as Annexure-X with the counter affidavit of the respondent nos. 6 to 25 filed on 04.02.2010 and other, namely order dated 28.08.2001 passed in C.W.J.C. No. 10477 of 2001 annexed as Annexure- X/2 with the supplementary counter affidavit filed by the said respondents on 23.02.2010. These orders show that in the process of appointment by the University under the scheme formulated by the Apex Court, respective petitioners had some grievance which they raised before this Court. Their grievances were considered and this Court found that since the University was proceeding strictly in terms of the scheme formulated by the Apex Court, there was no merit in their writ application and, therefore, they were dismissed. None of the two orders show that the grant of weightage to a casual employee and in the manner it had to be granted and the true intent and spirit of the order of the Apex Court in this respect was a question raised in either of the two writ 14 applications. Therefore, the orders referred to by the learned senior counsel for the respondents have no relevance in this case. However, in view of submission of learned senior counsel for the University that the University Authorities intend to consider the matter afresh and pass fresh orders, this Court refrains from passing any order for quashing of the appointments of said respondents against whom the petitioner specifically raised the grievance. In any case even if the appointments of the said respondents are quashed, the panel will have to be revised and only if the petitioner climbs up in the panel, to come within the consideration zone, he can get an appointment. On the other hand in view of the interpretation of this Court of the intent and spirit of the said orders of the Apex Court, the University will have to examine the cases of other causal employees also who were empanelled and were appointed against class-III posts. Therefore, with the above clarification in respect of the scheme formulated in the said order of the Apex Court, this Court remits back the matter to the University to hold fresh exercise, as it intends to do, within a period 15 of three months from the date of receipt/production of a copy of this order and take a decision afresh. In case, the petitioner climbs up above in the panel, as a result of the fresh exercise, and comes within the consideration zone for his appointment, his case shall not be rejected on the ground that during the pendency of this writ application he has crossed maximum age limit. With the above observations and directions, this writ application is disposed of. Arvind/ (J. N. Singh, J.)