CIVIL WRIT JURISDICTION CASE No.13009 OF 1996 In the matter of an application under Articles 226 of the Constitution of India. 1. RAM SINGHASAN JHA, son of shri Uma Jha, 2. Ganga Prasad Jha son of shri Sheonandan Jha, 3. Anil Kumar Singh son of shri Bilat Singh, 4. Dilip Kumar Singh son of shri Bilat Singh, 5. Shambhu Prasad Singh son of late Ram Bilash Singh, 6. Ram Murti Choudhary son of shri Hari Kant Choudhary, 7. Jawahar Choudhary son of shri Ram Prasad Choudhary, 8. Jai Raman Mishra son of late Anand Mishra, 9. Nunu Choudhary son of shri Hari Kant Choudhary, 10.Ganga Sagar Choudhary son of shri Yadunandan Choudhary, 11.Mohammad Murtaza son of Abdul Hakim, 12.Shaligram Jha son of Mukti Nath Jha, 13.Jwala Prasad Mishra son of Shri Krishna Nand Mishra, 14.Mahendra Paswan No. 1 son of Dukhi Paswan, 15.Biltu Paswan son of Ayodhi Paswan, 16.Ram Bilash Paswan son of Sukhdeo Paswan, 17.Mohammad yasin son of Mohammad Suleman, 18.Mohammad Muslim son of Leyakat Hussain, 19.Mohammad Idris son of Wali Ahmed, 20.Mohammad Imanullah son of Abdul Majid, 21Abdul Karim son of Sharfuddin, 22.Parmeshwar Chaupal son of Basahu Chaupal, 23.Ramji Paswan son of Lulhai Paswan, 24.Ram Prasad Paswan son of Jiwachh Paswan, 25.Fakira Ram son of Phekhan Ram, 26.Kapileshwar Mandal son of Thekan Mandal, 27.Kali Prasad Mandal son of Raghu Mandal, 28.Madan Rajak son of Suraj Rajak, 29.Prem Paswan son of Uchit Paswan, 30.Mahendra Paswan No. II son of Puran Paswan, 31.Upendra Das son of Bhola Das, 32.Lakshmi Narain Das son of Saudagar Das, 33.Srimati Meera Devi daughter of Ram Kripal Sah, 34.Sujan Devi daughter of Awadh Sah, 35.Sagar Devi daughter of Saryu Paswan, All at present residing in Darbhanga town, Police Station- Laheriasarai, District- Darbhanga -------- Petitioners Versus 1. THE STATE OF BIHAR. 2. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna. 3. The Commissioner of Darbhanga Division, Darbhanga. 4. The Collector of Darbhanga District, Darbhanga. 5. The Deputy Development Commissioner-cum-Chairman, District Rural Development Agency (D.R.D.A.), Darbhanga. 6. The Civil Surgeon, Darbhanga. 7. The Executive Engineer, Public Health Engineering Department, Darbhanga. 8. The Deputy Director of Tuberculosis, T.B. Centre, Darbhanga. --------- Respondents 1st set. 9. Kushehswar Mandal son of Shri Narain Mandal, 10.Durganand Jha son of Harishchandra Jha, 11.Baliram Jha son of Bindeshwar Jha, 12.Binod Jha son of Bachan Jha, 13.Chandra Kishore Singh son of name not known to the petitioners, 2 14.Satya Narain Paswan son of Rameshwar Paswan, 15. Basistha Mandal son of Kari Mandal, 16. Mohammad Tahir son of Mohammad Israil, 17.Indrasan Devi daughter of Ram Prakash Choudhary, 18.Meena Kumari daughter of Shital Mandal, All Nos. 9 to 18 are at present working in the office of the Civil Surgeon, Darbhanga, care of the Civil Surgeon, Darbhanga. 19.Mohammad Tahir son of name not known to the petitioners, 20.Shiva Kant lal Das son of Gopi Nath Das, 21.Ashok Kumar Mahto son of Dula Mahto, 22.Ram Narain Mandal son of Ram Khelawan Mandal, All the four, Nos. 19 to 22 are presently working in the office of the Executive Engineer, Public Health Engineering Department, Darbhanga, care of the Executive Engineer, P.H.E.D., Darbhanga. 23.Bishwanath Rajak son of Rama Rajak, 24.Bhola Rai son of Bharat Rai, 25.Lakshman Sah son of name not known to the petitioners, 26.Tej Narain Mandal son of Kalpa Nath Mandal, 27.Aseshwar Yadav son of Bhola Yadav, 28.Sukhdeo Choudhary son of Asarfi Choudhary, 29.Rambali Jha son of Ghuran Jha, 30.Deokant Jha son of Nand Kishore Jha, 31.Suresh Safi son of Ramautar Safi, 32.Ramchandra Paswan son of Lahtan Paswan, 33.Sitaram Baitha son of Surat Lal Baitha, 34.Parmanand Thakur son of Vishnudeo Thakur, 35.Sajjan Sahni son of Nengar Sahni, 36.Nityanand Mandal son of Ramlakhan Mandal, 37.Nematullah son of Habibullah, 38.Mohammad Saghir son of Mohammad Shamsul Haque, All Nos. 23 to 38 at present working in the office of the District Rural Development Agency, Darbhanga, care of the D.D.C.-Cum-Chairman, D.R.D.A., Darbhanga. 39.Kishun Mandal son of Sheonath Mandal, at present working as peon in the Tuberculosis Demonstration Centre, Darbhanga, care of the Deputy Director, Tuberculosis, T.B. Centre, Darbhanga. 40.Srimati Geeta Devi wife of name not known to the petitioners, 41.Mohan Kumar Jha son of Mangani Jha, 42.Binod Kumar Rai son of late Sitaram Rai, 43.Pashupati Mandal son of Ramashish Mandal, 44.Tuntun Paswan son of Anuplal Paswan, 45.Sheo Narain Paswan son of Yogi Paswan, 46.Arun Kumar Thakur son of Ramchandra Thakur, 47.Sitaram Mandal son of Fakira Mandal, 48.Abdul Kadir son of Mohammad Musai, 49.Ashraf Khan son of Mohammad Yunus Khan, 50.Basudeo Paswan son of Mahabir Paswan, 51.Bishwanath Sahni son of late Kishori Sahni, 52.Ram Naresh Paswan son of Ramrekha Paswan, 53.Prabhash Kumar son of Nageshwar Rai, 54.Naresh Lal son of Kapileshwar Lal, 55.Ram Nath Mishra son of Rajendra Mishra, 56.Etwari Paswan son of late Ghuran Paswan, 57.Raj Kumar Safi son of harischandra Safi, 58.Pramod Kumar son of Ganga Sahni, 59. Ajmatullah son of Mohammad Iliyas, 60.Sitaram Prasad son of Mahendra Paswan, 61.Pradeep Kumar Mandal son of Anand Mandal, 62.Shrawan Kumar Yadav son of name not known to the petitioners, 63.Kaushal Kumar Rai son of name not known to the petitioners, 64.Pawan Kumar Paswan son of Jagdish Paswan, 65.Ram Shankar Mandal son of Raghu Mandal, 3 66.Harishchandra Yadav son of Rameshwar Yadav, All Nos. 40 to 66 are presently working in the office of the Collectorate at Darbhanga, care of the Collector, Darbhanga. --------- Respondents 2nd Set. For The Petitioner :ABHAY SHANKER SINGH For The Respondent :(SC7) P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. There are 35 petitioners before this Court who are seeking appointment in the district of Darbhanga under the District Magistrate and allied offices of the district. There was a Government decision that the vacancies were to be filled at the mufassil level by making appointment for which certain guidelines were laid down by a circulars dated 26.05.1987 and 19.11.1990. Eventually in the year 1992 after advertisement the Collector empanelled 474 candidates for appointment on class IV posts. The list contained names of some persons working on the post of Peon on daily wages. The petitioners claimed that they were working on daily wages in Darbhanga. The vacancies were collected from all offices in the district of Darbhanga and finally a list of 4 119 persons was prepared. In the mean time, the Chief Secretary of the Government of Bihar issued a letter to all the Collectors banning them from making any fresh appointments until the retrenched hands working in the consolidation office were absorbed. The appointment of the petitioners which was recommended on 31st December, 1993 was thus delayed. 2. The Bihar Rajya Forum 4th Grade Employees Association District Unity filed CWJC No. 10905 of 1994 which was disposed of by this Court on 20.11.1995. This Court has held that “a direction that retrenched employees of a particular department should be first absorbed is arbitrary and cannot be enforced. The direction of the Chief Secretary making such a direction in favour of the employees of the Consolidation Department must also be declared to be illegal and cannot be enforced.” It has also been noticed by the court that in the year 1994 i.e. on 17.2.1994, a fresh advertisement was issued for appointment against 72 existing vacancies for Class IV posts. It had been argued before this Court that the 72 vacancies 5 which existed do not relate to the 119 vacancies which were advertised to be filled up in the year 1993. Since, the counter affidavit of the department was not very clear on this aspect that the 72 vacancies advertised in 1994 were part and parcel of the earlier 119 vacancies, the Court directed that the petitioners should be appointed in pursuance to the recommendation of the Collector if the vacancies relate to those vacancies other than subsequently issued on 17.2.1994. 3. Subsequent to the order of this Court aforesaid, the Collector addressed a letter to 13 departments under the Darbhanga district stating therein that the letter of recommendation issued vide 2498 dated 31.12.1993 should be implemented and the persons recommended in the said letter should be appointed (annexure-8 to the writ application). I may point out here that one of the departments to which the letter was issued was the Darbhanga Medical College. 4. The petitioners were recommended for appointment in Darbhanga Medical College. The petitioners were appointed by the District 6 Superintendent of Education vide annexure-11. Whereas other persons recommended in the said list were appointed in different departments under the district of Darbhanga. 5. The petitioners’ case is that they were above the respondents in the panel and it is just a matter of chance that the petitioners were recommended for appointment in Darbhanga Medical College whereas persons junior in the panel to the petitioners who are respondents before this Court were appointed in other departments. 6. In the mean time, one Pramila Devi challenged the letter of the District Magistrate dated 21st December, 1995 issued to the Superintendent, Darbhanga Medical College, Darbhanga with respect to appointment of all such persons, whose details were furnished in the letter aforesaid. The claim of Pramila Devi and others was that the District Magistrate was not competent to recommend or to make appointments from the district panel against vacancies in the Medical College. The petitioners of CWJC No. 911 of 196 contended that there is a Selection Committee for 7 appointment in Medical Colleges and it is only on the recommendation of the Selection Committee that appointments could have been made in the Medical College at Darbhanga. This Court also noticed the fact which was brought by way of a counter affidavit filed on behalf of the State that the appointments of the petitioners were made in lieu of the order passed in CWJC No. 10905 of 1994. This Court also noticed that there was no direction for appointment rather the order merely stated that if the subsequent advertisements were not part of the earlier vacancies then the Collector should consider the appointment of the petitioners who had been recommended by the District Magistrate in 1994. This Court has also clearly and rightly held that the District Magistrate had no right to make appointments against vacancies in the Medical College as there is already a procedure laid down for filling such vacancies. As a consequence of the order dated 16.4.1996 passed in CWJC No. 911 of 1996, the petitioners were terminated from Medical College and sent back to the office of the Collector. The petitioners 8 challenged their order of termination by annexure-16 issued vide memo no. 1331 dated 16.5.1996. This Court held that the petitioners may ventilate their grievances before the District Magistrate and the Court also observed that it would not be appropriate for this Court to direct the respondent District Magistrate to consider their cases and dismissed the writ petition i.e. CWJC No. 5490 of 1996 on 19.8.1996. 7. The stand of the State Government is that in view of the order passed in CWJC No. 5490 of 1996, the petitioners’ case for absorption was dismissed. In the counter affidavit it has been stated that initially only one person was appointed in the Darbhanga Medical College & Hospital and it was after the order in CWJC No. 10905 of 1994 dated 20.11.1995, that the petitioners were absorbed/appointed in the Darbhanga Medical College & Hospital purportedly in compliance of the order of this Court dated 20.11.1995. The petitioners have challenged the order issued vide Memo No. 1331 dated 15.5.1996 terminating their services by filing C.W.J.C. No. 5490 of 9 1996 which was disposed of on 19.8.1996. It would be proper to quote from the order passed on 19.8.1996 which reads as follows:- “It is stated on behalf of the petitioners that some of the candidates even shown junior to the petitioners in the panel have been retained in the Collectorate by respondent no. 2. I have already indicated above that the petitioners may ventilate their grievances before respondent no. 2 and it will not be appropriate for this Court to direct respondent no. 2 to consider their cases. In that view of the mater, and taking into consideration the order passed by this Court earlier as noticed above, no relief can be granted to the petitioners in this writ application.” 8. The stand of the petitioners is that juniors in the penal by virtue of being posted in other offices of the Collectorate were retained in services, whereas the petitioners have suffered although they are senior in the penal. The stand of the State is that the life of the penal is for one year as per the orders of the Personnal and 10 Administrative Reforms Department and the Circulars of the Board of Revenue, which does not appear to be a tenable stand, in view of the pleadings in this case. It is not the fault of the petitioners that they were recommended for appointment in the Darbhanga Medical College by the Collector, although the Collector did not have the power to do so. The pleadings of the State in paragraph 20 of the counter affidavit that out of 199 persons 55 persons were appointed by the Superintendent, Darbhanga Medical College & Hospital, 11 were allowed to join by the Civil Surgeon, Darbhanga, 4 persons were appointed by the Executive Engineer, Ph.E.D. Darbhanga, 17 persons were appointed by the District Rural Development Authority, 1 person was allowed to join in T.V.D.C., Darbhanga, the remaining 27 persons were sent back and their services absorbed in compliance to the orders passed in CWJC No. 10905 of 1994 disposed of by order dated 20.11.1995. 9. The petitioners appear to be the unfortunate few who could not be appointed even after their recommendation for appointment by 11 the District Level Appointment Committee in the facts stated above. 10. The learned counsel for the petitioners has referred to the order passed in L.P.A. No. 688 of 1998 (arising out of C.W.J.C. No. 6115 of 1996 disposed of on 15.4.1998), relating to persons who were recommended for appointment in the medical college by the District Level Appointment Committee, but for no fault of theirs, the appellants were not appointed. The Division Bench held as follows: “The District Magistrate, Darbhanga is directed to ascertain the vacancy position of the posts available at Darbhanga District and to appoint the appellants on the basis of their merit position in the panel in those posts. In the event, vacancies are not available to accommodate all the appellants, the District Magistrate, Darbhanga is directed to create supernumerary posts for the purpose of accommodating the remaining appellants, which posts would be gradually reduced by superannuation of the existing employees. It is made clear that the appointment, in terms of this order, of the appellants shold be deemed 12 to be appointment in the State from the date they will be appointed for all practical purposes including seniority.” 11. However, the petitioners cannot claim monetary benefits, in view of the fact that in the interim period of 12 years or more, it can safely presumed that the petitioners were employed/self employed and were sustaining themselves in some manner or the other. 12. This writ application is disposed off with the observations that the orders passed in L.P.A. No. 688 of 1998 will be applicable to the cases of the petitioners. The District Magistrate however, will examine their position in seniority list of empanelled persons of the relevant year, and if it is found that he petitioners were senior in the penal prepared for persons recommended by the District Level Appointment Committee, the appointments should be made within a period of four months from the date of receipt/production of a copy of this order. Patna High Court March 16th ,2009 Sanjay/A.F.R. (Sheema Ali Khan, J.)