IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4384 of 2006 1. Nagendra Kumar, aged about 52 years, Son of Shri Ramashish Singh, resident of village- Sarmastpur, P.S.- Bajitpur, District- Jehanabad. ..........Petitioner. Versus 1. The State of Bihar through the Secretary, Health & Family Welfare, Patna. 2. Director-in-Chief, Health Services, Bihar, Patna. 3. Civil Surgeon-cum-Chief Medical Officer, Gaya. 4. Commissioner, Magadh Division, Gaya. 5. Medical Officer, In-charge Primary Health Centre, Imamganj, District- Gaya. 6. Medical Officer, In-charge Primary Health Centre, Bodh- Gaya, District- Gaya. .....Respondents. ----------- For the Petitioner:- Mr. Basant Kr. Choudhary, Sr. Adv., with Mr. Ranjan Kr. Singh, Adv. For the State:- Mr. Neeraj Kumar, A.C. to S.C.22. 8 03.05.2011 Two questions are involved in the present writ application. Firstly, whether the petitioner who substantively worked in Special Cholera Scheme under the Government can claim consideration for being promoted and appointed in the cadre of Sanitary Inspector and secondly can State take substantive work from the petitioner as a Sanitary Inspector for a long period which involves higher responsibilities than of a Special Cholera Worker and then refuse to pay full remuneration in respect of the Sanitary Inspector's post to the petitioner? Counter affidavits and rejoinder have been field. There does not appear to be any dispute on facts. With the consent of the parties, writ petition has been heard for disposal at this stage itself. It is not in dispute that the petitioner was duly appointed as Special Cholera Worker on 27.02.1972 (Annexure 1) by the Deputy Director, Health Department, Government of Bihar, Patna on a permanent sanctioned vacant post under the Government. He has undergone special training as Sanitary Inspector as well at the behest of the Government itself. Petitioner's case is that the Government in the Department of Health, took a decision which was communicated to all concerned under Memo No. 251(25), dated 23.07.1983, that 50% of the post of Sanitary Inspector in the State would be filled up by direct appointment and the remaining 50% would be filled up by promotion of employees of the Department who had due training of Sanitary Inspector in which reservation and seniority would be fully considered. The petitioner's grievance is that notwithstanding adequate vacancies being there in respect of the post of Sanitary Inspector in the State and in spite of the fact that for long periods the work of Sanitary Inspector is being taken from petitioner and his like and having received special training as Sanitary Inspector, they are not being considered for appointment as Sanitary Inspectors by way of promotion contrary to the decision of the State Government aforesaid. The second ground is that even though undisputedly petitioner is being made to work as Sanitary Inspector, he has been compelled to give undertaking that he would neither claim promotion to that post nor remuneration to that post. Counter affidavit has been filed. In the counter affidavits, it is stated that earlier petitioner was deputed as Sanitary Inspector. He was reverted back. He challenged it in the writ petition. The writ petition was dismissed. As such, the present writ petition cannot be entertained. The further stand in the counter affidavit is that Sanitary Inspector is a State cadre whereas Special Cholera Worker is a District Level Cadre. There cannot be a promotion from one cadre to another cadre. It is further stated that as petitioner is working temporarily as Sanitary Inspector upon undertaking that he would not claim promotion or remuneration of that post he is not entitled to any relief. This Court is called upon to pronounce the correctness of stand of either party. Mr. Basant Kumar Choudhary, learned senior counsel appearing in support of the writ petition, submits that the State Government had taken a policy decision in the year 1983 and communicated to all concerned which is Annexure 3 to the writ petition. Though State has filed several counter affidavits, in none of them, they have chosen to challenge or negate the State policy decision nor have taken the stand that there does not exist any such policy rather petitioner has brought on record the order of this Court in C.W.J.C. No. 8762 of 2003 disposed of on14th of September, 2004 in the case of Shyam Sundar Sharma versus State of Bihar by Hon'ble Mr. Justice C.K. Prasad (as his Lordship then was) as Annexure 16. A reference to that shows that the petitioner of that case was appointed as Family Welfare Worker and after training of Sanitary Inspector, he was appointed as Sanitary Inspector. The same was being cancelled by the Civil Surgeon-cum-Chief Medical Officer, Jehanabad, this Court interferred, quashed the cancellation order and permitted him to continue as Sanitary Inspector. Mr. Basant Kumar Choudhary, learned Senior counsel submits that in view of the fact that the policy decision of the State Government in this respect being there the consideration of petitioner's case for promotion cannot be denied. He submits that the policy decision itself is of filling up the post of Sanitary Inspector validly by way of promotion from other cadres in the Health Department. It makes little difference whether the two cadres are different for fundamentally the policy is of filling up one cadre by promotion from another cadre. Thus, by policy, the sources of appointment to the post of Sanitary Inspector are by direct recruitment and by promotion. Thus, all other cadres which satisfied the conditions of eligibility so far as the post of Sanitary Inspector is concerned become one cadre of Sanitary Inspectors on appointment by promotion to the extend indicated above. In my view, the petitioner is correct. It is further established by the very conduct of the respondents themselves that from time to time, they have been taking work from the petitioner as a Sanitary Inspector. Thus, there is no scope for holding otherwise that so long as the policy decision, as contained in Annexure 3 continues, in absence of any other statutory rule or rules framed with reference to Article 309 of the Constitution, the policy would apply. State is bound to consider persons like the petitioner who are Special Cholera Worker and having requisite training for Sanitary Inspector to be considered for appointment to the vacant post of Sanitary Inspector in the proportion decided by the State. Thus so far as the first relief is concerned, the petitioner is entitled to the same and is granted the same. The Director-in-Chief, Health Services, Bihar, Patna would consider the case of all Special Cholera Worker, who have the requisite experience of Sanitary Inspector accordingly for appointment by promotion to the post of Sanitary Inspector within the 50% quota reserved from them. So far as the second grievance is concerned, it shocks the Court. How can democratically elected Welfare Government exploit the situation in such a manner? How can they take undertaking from the employee that they must work at the higher post involving higher responsibility but would not claim absorption on that post or financial benefits of that post. This is nothing but bounded labour practice which is impermissible. If a person is made to perform duties of higher post involving higher responsibility then he cannot be deprived of the remunerations attached to the said post. That would be wrong practice and unjust on the part of the Government and violative of the constitution . The Government cannot take work without paying. Two persons discharging the same duties at the same level cannot be paid differently, one is the substantive appointee and other is made to work on that post though substantively on a junior post. In this regard, I may also refer to Rule 89 of the Bihar Service Code which is on similar terms. More abhorrent practice is taking written undertaking from a person not to raise legitimate grievance against his exploitation. This system must come to an end. If there are vacancies, they must be immediately filled up. That cannot be a ground of allowing a person substantively in a junior post to work on a senior post involving higher responsibility and not paying them accordingly. Thus on this account also the writ petition must succeed. So long as the petitioner has discharged duties as a Sanitary Inspector he and his like, where ever they may be in the State, would be entitled to full payment of remuneration attached to the post of Sanitary Inspector and depriving them of their remuneration cannot be permitted I order accordingly. In view of the aforesaid, the writ petition is disposed of with the direction that petitioner who is substantively Special Cholera Worker and has the requisite training as Sanitary Inspector, is to be considered for appointment by promotion to the cadre of Sanitary Inspector to the extent of 50% of vacancies as per policy decision of the Government and for the period for which petitioner and his like have discharged their duties as Sanitary Inspector, they would be entitled to be paid as such the remuneration attached to the post of Sanitary Inspector which should be done within three months from the date of production of a copy of this order before the Director-in-Chief, Health Services, Bihar, Patna. The writ petition is accordingly, disposed of. Bhardwaj/- ( Navaniti Prasad Singh, J.)