IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12014 of 2008 VIDYA SAGAR SINGH, S/O LATE MUKHI SINGH, R/O VILLAGE-KARAMPUR, P.S.-GIRIAK, DISTRICT- NALANDA. ………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA. 3. DEPUTY SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA. 4. DIRECTOR-IN-CHIEF, BIHAR, PATNA. 5. CHIEF MALARIA OFFICER, BIHAR, PATNA. 6. DISTRICT MAGISTRATE, NALANDA AT BIHAR SHARIF. 7. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, NALANDA AT BIHAR SHARIF. 8. DISTRICT MALARIA OFFICER, NALANDA AT BIHAR SHARIF. …………RESPONDENTS. ----------- For the Petitioner :- Mr. Rajendra Prasad Singh, Sr. Adv., Mr. Pramod Kumar, Adv. and Mr.Ritesh Kumar, Adv. For the Respondents:- Mr. M.Dhar Dwivedi, SC-23 ---------- 5 23.11.2011 Facts of the case in brief has been noticed by this Court in its order dated 05.08.2011. Petitioner had earlier moved this Court for a direction to the respondents to regularize his services on the post of Superior Field Worker, a regular class-IV post. His writ application was taken up by this Court and was disposed of by order dated 19.01.2006, as contained in Annexure- 2 9. The case of the petitioner was that he had continued as Superior Field Worker after his appointment and in the panel prepared for regularization/absorption of employees his name was first and there was one post vacant. Hence, he sought for a direction to the respondents to regularize him against the vacancy available. In the case, the respondents had filed a counter affidavit. The same was considered by this Court and following observations were made:- “So far as annexure-6 and 8, as referred to above, are concerned, no dispute has been raised on behalf of the State in the counter affidavit, rather learned counsel appearing for the State accepts the position about the seniority of the petitioner and about the vacancy of one post so far as the Superior Field Worker is concerned. At the same time, it is not stated in the counter affidavit as to what would be the mode of appointment on regular basis on that post of Superior Field Worker. It is not in dispute that the petitioner is working as Superior Field Worker since 28.09.1986 and in the seniority list he is at serial no.1 and one post is lying vacant in the regular cadre of Superior Field Worker. Regard being had to the facts and circumstances of the case and for the reasons aforementioned, respondent 3 no.5, the Chief Malaria Officer, Bihar, Patna is directed to consider the case of the petitioner for his regularization on the post of Superior Field Worker keeping in view the seniority list and the vacancy in regular cadre and to pass necessary orders in accordance with law, within a period of six weeks from the date of receipt/production of a copy of this order. With this direction/observation, this writ application is disposed of.” Thus, it appears that on contest this Court had found that petitioner was no.1 in the panel and one vacancy was available and, therefore, had directed the respondent no.5, i.e., Chief Malaria Officer to consider his case for regularization on the said vacancy available. It appears that the word ‘consider’ used by this Court in the order was taken by the Chief Malaria Officer as liberty to him to reject his case for regularization. Hence, by Annexure-10, he rejected his case for regularization on four grounds, namely, (i) that his name was at serial no.2 in the panel and not at serial no.1; (ii) that he was not a retrenched employee; (iii) that he had not worked for 240 days in any 4 particular year and (iv) that all the posts of Malaria Scheme were of State level and not of district level and, therefore, no appointment could be made on the basis of district level panel. In the circumstances, petitioner has moved this Court challenging the said order of the Chief Malaria Officer, as contained in Annexure-10. A counter affidavit has been filed in this case by the respondents. In the counter affidavit they have relied upon certain documents including the panel which is Annexure-A with the supplementary counter affidavit. From perusal of this Annexure-A, it is apparent that this panel was prepared by the respondents two years after the order of this Court was passed in the earlier writ application of the petitioner. Therefore, this could not be relied upon for rejecting the case of the petitioner to be considered in the light of orders passed by this Court, as contained in Annexure-9. It may also be noticed that forwarding letter of this Annexure-A is dated 12.04.2008, whereas the date of preparation of the panel is 5 02.05.2008. Learned counsel for the respondents submits that the petitioner had not worked for more than 240 days in a year. This ground is also not available to the respondents as this Court in the earlier writ application of the petitioner in 2006 itself had found that the respondents themselves had prepared a panel of seasonal workers for their absorption in the regular cadre in which the name of the petitioner was at serial no.1. The panel was also available on record of the case which was not challenged and disputed by the respondents. Moreover, it was also not claimed before this Court earlier that the petitioner had discontinued from service or had been retrenched. In the circumstances, the ground nos. 2 and 3 are also not relevant and applicable in the case of the petitioner. So far as ground no.4 is concerned, the Chief Malaria Officer is a functionary at the State level and he had to consider the case of the petitioner as directed by this Court. Hence it was his obligation to 6 take the concurrence of the Department if at all required for regularization of the petitioner as per the directions of this Court. It is clear that the use of the word ‘consider’ by this Court in its earlier order was taken by the Chief Malaria Officer as a liberty to him to reject the case of the petitioner. In case the order of this Court was not correct the respondents were at liberty to move in appeal before a Division Bench against the same which they did not do. Hence, the same was binding on them in terms of the findings arrived at by this Court. Clearly the Chief Malaria Officer had no liberty to reject the case of the petitioner for regularization/absorption in regular service. This writ application is, therefore, allowed with a direction to the respondents to issue orders for regularization/absorption of the petitioner in the regular cadre as Superior Field worker. This may be noticed that the respondents have not taken a stand that there is no vacancy. Hence, the Chief 7 Malaria Officer is directed to take steps for regularization of the petitioner and issue specific orders positively within three months from the date of receipt/production of a copy of this order with whatever formalities he has to perform including obtaining any concurrence or approval from any higher level in the Department or from any authority. Arvind/ ( J.N. Singh, J.)