CIVIL WRIT JURISDICTION CASE No.9304 OF 1997 In the matter of an application under Article 226 of the constitution of India; 1. VIJAY KUMAR CHOUBEY 2. KISUN PRASAD 3.VIJAY KUMAR JHA 4. AMARNATH PRASAD 5. MAHENDRA KUMAR MANDAL 6. MD. MUNA 7. ANIL KUMAR NIRALA 8. ARBIND KUMAR 9. VIJAY KUMAR SHARAN 10. OM PRAKASH 11. ASHOK KUMAR MALAKAR 12. ASHOK KUMAR 13. PRABHU KUMAR ---------------------PETITIONERS Versus THE STATE OF BIHAR & ORS-------------------Respondents ----------- For The Petitioner :R.N.MUKHOPADHAYA For The State Mr. S.Raxa Ahmad,AAG IX For D.R.D.A.:- Mr. Nikesh Kumar P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA Mridula Mishra,J:- Heard counsel for the petitioners, the State and counsel appearing for the DRDA. 2. Initially, this application had been filed by the petitioners for a direction to the respondent authorities of the District Rural Development Agency, Patna ( DRDA) to consider the case of petitioners for appointment against Class III and Class IV posts and also to restrain them from filling up the vacancies available in Class III and Class IV posts in DRDA and its allied Offices, without considering the case of the petitioners, in terms of the direction of the High Court in CWJC No.5551/1995 dated 23.11.1995 read with judgment dated 1.9.1993 passed in CWJC No. 4224 of 1993. 2 3. In these two writ applications a direction had been issued to the authorities of the State Government to prepare a panel of daily wagers, working in the District/Mufassil Offices, who completed 240 days after being appointed prior to 1.8.1985 and to regularize them against the vacancy occurring on such posts. Petitioners’ grievance is that while considering the regularization of daily wagers in DRDA, their cases were not considered despite the fact that vacancies were filled up in the year 1997 and petitioners being appointed in between 28th March and 20th November, 1992, fulfilled criteria for regularization. Petitioners have alleged that on the basis of incomplete panel, regularization orders were passed, against the vacancies available. One of the prayers of the petitioners is to empanel them and to consider their cases for regularization. 4. During the pendency of the writ application I.A. No. 5668 of 1997 was filed by the petitioners for a direction to the respondents not to disturb them and not to fill up the posts in the DRADA till disposal of the writ application. Another Interlocutory Application No. 5738 of 1997 was filed challenging the termination order dated 6th October 1997 (Annexure-15 series). Again an Interlocutory application No. 7697 of 1997 was filed with a prayer to add such persons as respondents, who have been appointed against 23 vacancies existing in DRDA and for quashing of their termination order. Lastly I.A. No. 3485 of 2011 has been filed by the petitioners with a prayer to complete the process of selection in terms of Resolution dated 16.3.2006 read with the decision of the District Board dated 24.11.2008 for filling sanctioned vacant posts in Class IV and to consider petitioners’ case, giving age relaxation. So many interlocutory applications were filed by the petitioners, for the 3 reason that since 1997 till date, this matter is finally heard, a lot of changes/developments had taken place, which indirectly affected main prayer of the petitioners in the main writ application. Petitioners were compelled to make additional prayers by filing interlocutory application at different point of time, due to subsequent changes and developments.. 5. Petitioners’ case is that if their names would not have been excluded from the panel prepared in the year 1997, they would have completed 240 days in every five years. They would have also been entitled of benefit arising out of the resolution of Government, whereby cut off date for appointment was extended to 11. 12.1990 from 1995. The Petitioners would have also been benefited and considered for regularization/absorption against the subsequent vacancies. 6. Two counter affidavits have been filed on behalf of DRDA. In the first counter affidavit in Paras 19 and 20, it has been stated that petitioners’ name were also considered in the year 1997 for regularization against 23 vacancies. Since, petitioners had been appointed beyond the cut off date of 1.8.1995; as such they could not be absorbed. Subsequently as there was no vacancies, so they were retrenched and their names were also excluded from the panel. 7. Respondents in their latest counter affidavit have stated that DRDA being under joint control of the Central Government as well as State Government is funded, in the ratio of 75% and 25% by the Central and the State. The Central Government has issued a new guideline known as DRDA Administration Scheme in which Chapter 42 clearly directs that there would be no regular appointment in any DRDA with effect from 1.4.1999 and the only mode of appointment would be deputation and contractual appointment. The State Government in compliance of this 4 direction has also issued letter and this direction is being strictly followed in the matters of the appointment. 8. I find that the situation, existing in the year 1997, when the petitioners had filed writ application and the circumstances existing today, when the matter is being decided, has completely changed. Petitioners has placed reliance on a resolution dated 16.3.2006 in order to show that even daily wagers who have been terminated earlier, can be absorbed/regularized against the vacancies, if appointed prior to 11.12.2001. In this letter containing/resolution there is a specific clause 2(iv) which restricts regularization of daily wagers in any Department, Corporations, Boards or Organization, other than the Board, Corporation, Organization from which they have been retrenched/terminated. In that view of the matter, since the petitioners were terminated in the year 1997 from DRDA, they could claim their regularization against the vacancies existing in DRDA, in terms of 2006 Resolution. On the other hand, as indicated in the supplementary counter affidavit by the DRDA, there cannot be any regular appointment in DRDA except by way of deputation or contract basis. In this circumstance, no direction can be issued to regularize the petitioners against the existing vacancies, even in terms of Resolution dated 16.3.2006. Only direction to be issued can be for empanelment of petitioners’ name. How far such empanelment would be effective and beneficial, is the question to be considered. In the facts and circumstances of the case only this direction being issued to respondents to include the name of the petitioners in the District Panel of daily wagers, giving them benefit of seniority. So far a direction for regularization is concerned, that can be considered by the Respondents in accordance with law. 5 9. This application is accordingly, disposed off. (Mridula Mishra,J.) Patna High Court Dated the 19th May, 2011 A.Kumar/NAFR