IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3237 of 2008 SMT.SANJU KUMARI, WIFE OF SHRI MANOJ KUMAR, RESIDENT OF J-127, PEOPLES’ COOPERATIVE COLONY, KANKARBAGH COLONY, P.S. KANKARBAGH, DISTRICT PATNA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 2. THE CHIEF MINISTER, GOVERNMENT OF BIHAR, THROUGH THE PRINCIPAL SECRETARY, CHIEF MINISTER’S SECRETARIAT, 4 ANNE MARG, PATNA. 3. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 4. THE DEPUTY SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 5. THE PRINCIPAL SECRETARY, MINES AND GEOLOGY DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 6. MR. RAJVANSH MANI SINGH, BAS, SON OF NOT KNOWN TO THE PETITIONER, PRESENTLY POSTED AS DEPUTY SECRETARY CUM PUBLIC INFORMATION OFFICER, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 7. MR. ANIL KUMAR JHA, SON OF NOT KNOWN TO THE PETITIONER, THE THEN UNDER SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PRESENTLY C/O SECRETARY PERSONNEL DEPARTMENT, GOVERNMENT OF BIHAR. 8. MR. SUSHEEL OJHA, SON OF NOT KNOWN TO THE PETITIONER, THE THEN DEALING ASSISTANT, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. -------------------------------------------------------------------------------------------- RESPONDENTS For the petitioner :- Mr. Abhinav Shrivastava, Advocate For the State :- Mr. Anil Kumar Verma, A.C. to A.A.G. 13 For Mines Deptt. :- Mr. V.M.K. Sinha, Special P.P. Mines. ----------- 3 7.4.2011 The petitioner is aggrieved by the order contained in Annexure-1 by which her name has been removed from the joint cadre of Assistants. Annexure-2 is the order passed on the appeal filed by the petitioner which was disposed of on 14.8.2007 by the Secretary, Administrative Reforms Department. 2 The facts are that the petitioner was appointed on compassionate ground as Yojana Sahayak (Planning Assistant) in the Mines Department on 26.3.1987. After the appointment of the petitioner the 1989 Rules came into existence by which the State Government created a single cadre of Assistants taking into account persons working as Assistants in different departments on different posts. The members of the cadre as per Rule 2(4) of the 1989 Rules (Annexure-4) indicates that they would include persons working as Assistants, Senior Division Assistants, Section Officers, Registrars, Deputy Secretaries, Additional Secretaries and persons holding equivalent posts. Rule 9 reads as follows: “9- fu;qfDr] izksUufr ,oa lEiqf"V dh fof/kekU;rk & fdlh U;k;ky; ds fu.kZ;] fMØh vFkok vkns’k ;k fdlh fu;e ;k ifji= esa vUrfoZ"V fdlh ckr ds izfrdwy gksrs gq, Hkh] orZeku ljdkjh ifji=ksa@fu;eksa vkfn ds vk/kkj ij 30 vxLr] 1988 rd fofHkUu lfpoky; foHkkxksa ,oa layXu dk;kZy;ksa esa dh xbZ lHkh fu;qfDr;ksa] izksUufr;ksa rFkk lEiqf"V;ksa dks fu;er% fd;k gqvk ekuk tk;xk vkSj ,slk ekuk tk;xk fd foÙk foHkkx ds Kki la[;k 9571&fo0] fnukad 24 tqykbZ] 1967] rFkk foÙk foHkkx ds Kki la[;k 7929&fo0] fnukad 3 tqykbZ] 1967 ds lkFk iBuh;& 27 ebZ] 1967 dk ljdkjh fu.kZ; vfLrRo esa Fkk gh ugha vkSj ;g eku fy;k tk;xk fd u rks ,slk fu.kZ; dHkh fy;k x;k vkSj u ,sls ifji= dHkh fuxZr fd;s x;sA” The aforesaid Rule indicates that 3 all those persons who have described in Rule 2(4) and were appointed before 30th August, 1988 would form the cadre of Assistants. In accordance with the aforesaid Rule, the petitioner’s name was included in the panel of Assistants in the year 1992, 2000 and 2001. According to the petitioner, when she applied for grant of A.C.P. she was issued a show cause to explain “as to why her name should not be struck off from the cadre of Assistants.” The petitioner replied to the show cause and stated that she was appointed in the year 1987 as Planning Assistant and has continued to work on the said post and that she was thus entitled to be included in the said cadre as per the 1989 Rules. The order impugned indicates the reasons for rejecting the claim of the petitioner. The grounds for rejection are (A) That there can be no claim to be included in the cadre of Assistants on the basis of the fact that the petitioner draws the same pay scale as other Assistants. (B) That the petitioner’s name cannot be included in the cadre of Assistants merely because her name was included in the cadre 4 in the year 1992 and 2001. (C) That the benefit of being in the joint assistant cadre was given specifically to those persons who were appointed between the year 1962 to 1972 for the reason that during the period aforesaid, regular appointments could not be made on the post of an Assistant. The petitioner was appointed much later and, therefore, would not be entitled to the said benefit. (D) The petitioner was not able to produce any letter to indicate that the Planning Assistant was included in the cadre of Assistants. (E) That the petitioner was appointed on compassionate grounds on Class III post. The post is filled up by selection held by either the Bihar Public Service Commission or the Staff Selection Commission and as such the petitioner would not be entitled to remain in the joint cadre of Assistants. Dealing with the reasoning of the department, this Court finds that the petitioner is not claiming on the basis of any particular letter issued by any department, rather she is staking her claim to be included in the joint cadre of 5 Assistants on the basis of the 1989 Rules, therefore, the stand of the department that the petitioner is not entitled because she receives the equivalent pay or that she is not entitled because there is no specific letter of the department which specifies that the Planning Assistants would be treated to be in the joint cadre of Assistants or the stand of the department that she was not appointed between the year 1962 to 1972 seems to be absolutely without any basis. The reasons aforesaid are not at all applicable in the case of the petitioner. Once a decision is taken by the State Government to form a cadre and Rules are framed specifying the manner in which the cadre will be created, it cannot be held or in other words the department cannot insist that the petitioner should produce any letter of the department which would specify that the Planning Assistants have been included by the department or by any other administrative decision to be part of the joint cadre of Assistants. Even more strange is the reason supplied by the department for removing the 6 name of the petitioner from the joint cadre is the fact that the petitioner was appointed on compassionate grounds. The reason supplied is that the appointments made on compassionate grounds cannot be treated to be equal to appointments made through selection. This Court may clarify that all those persons, who are appointed on compassionate grounds are appointed because of an administrative decision taken by the State to give advantage to kith and kin of employees who die in harness. The stand that the petitioner did not face the selection process is rather vague, in view of the fact that such appointments are permitted and in all cases of appointments by compassionate grounds, there is no procedure of selection involved rather the decision to appoint a person on compassionate grounds is governed by the policy laid down by the Government for making such appointments. Thus, once a persons has been appointed on compassionate ground, it cannot be said that such a persons would not be entitled to the benefits given to others, holding similar or 7 same post by virtue of the fact that the entry into the service was on compassionate grounds, if otherwise found fit. Such actions would amount to discrimination. This Court, therefore, finds that the reasonings given in Annexure-1 and in the appellate order are completely unjustified. I may also refer to the counter affidavit which gives the same reasons as mentioned in Annexures 1 and 2. In addition to which it has been stated on behalf of the Mines Department that the State Government has created the post of Planning Assistant (Yojana Sahayak) by virtue of a notification no. 997 dated 12.6.2009. According to this notification this post would come into existence on 12.6.2009 and will end with the retirement of the petitioner in 2026. Going behind the reasonings for creation of this post, it is quite apparent to this Court, that the State Government was required to create this post, because the petitioner is the only person who has been left out and her name struck out from the list of joint cadre of Assistants. Had the post of Yojana Sahayak been a separate and distinct post 8 then the notification would have been issued from very beginning. The reason, therefore, for issuing this notification is to keep the petitioner out of joint cadre Assistants. In view of this fact, the objection taken by the department in Annexures 1 and 2, by which the petitioner was asked to produce letter of the State Government which specifically included the post of Yojana Sahayak and make it equivalent to the post of an Assistant seems to be redundant as even according to the State’s own stand, there was no letter to say that the post of Yojana Sahayak was separate or distinct to the post of an Assistant. In view of the aforesaid discussions, the orders contained in Annexures 1 and 2 are quashed and the respondents no. 3 to 5 are directed to include the name of the petitioner in the joint cadre of Assistants. This application is, thus, allowed. Sanjay ( Sheema Ali Khan, J.)