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 2 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 3 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 4 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 5 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.)