IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5537 of 2009 1. UDAY KUMAR JHA SON OF SRI RATNESHWAR JHA, RESIDENT OF VILLAGE BAGHI, P.S. SUGAULI, DISTRICT EAST CHAMPARAN 2. MILAN PRASAD THAKUR, SON OF LATE STYA NARAIN THAKUR, RESIDENT OF VILLAGE HASANPUR, P.S. TEGHRA, DISTRICT BEGUSARAI 3. MADAN MISHRA SON OF SRI MUKETESHWAR MISHRA, RESIDENT OF VILLAGE UDHURA, P.S. DALLUPUR, DISTRICT BHOJPUR 4. MATHURA SHARMA, SON OF SRI BHAGIRATH SHARMA, RESIDENT OF VILLAGE NADIAMA, P.S. LAKHISARAI, DISTRICT LAKHISARAI 5. UMA SHANKAR PRASAD, SON OF LATE RAM CHANDRA PRASAD, RESIDENT OF VILLAGE MANER TELPA, P.S. BIKRAM, DISTRICT PATNA 6. SARYUG PRASAD SON OF LATE DEOLAL RAM, RESIDENT OF VILLAGE PIRBANDHNA, P.S. DANIAWAN, DISTRICT PATNA 7. MD. ISHTEYAQUE SON OF MD. MUSTAQ, RESIDENT OF PIRVAISH LANE, P.S. ALAMGANJ, DISTRICT PATNA.----- PETITIONERS Versus 1. THE STATE OF BIHAR , THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA 2. INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCE, THROUGH THE DIRECTOR, I.G.I.M.S., SHEIKHPURA, PATNA 3. CHIEF ADMINISTRATIVE OFFICER, INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCE, SHEIKHPURA, PATNA.- ---RESPONDENTS. with CWJC No.4668 of 2009 RABINDRA KUMAR SINGH, SON OF RAMESHWAR PRASAD SINGH, RESIDENT OF NEW PURANDARPUR ( BAPU PATH) P.S. JAKKANPUR DISTRICT PATNA.------- PETITIONER Versus 1. THE STATE OF BIHAR ,THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA 2. INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCE, THROUGH THE DIRECTOR, I.G.I.M.S., SHEIKHPURA, PATNA 3. CHIEF ADMINISTRATIVE OFFICER, INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCE, SHEIKHPURA, PATNA 4. ADMINISTRATIVE OFFICER, INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCE, SHEIKHPURA, PATNA 2 5. DEPUTY DIRECTOR ( ADMINISTRATION), I.G.I.M.S. SHEIKHPUR, PATNA-----RESPONDENTS. ----------- For the Petitioner:- Mr. Banwari Sharma,Advocate For the State:- Mr. Ramchandra Pd. Bharti,SC-14 For IGIMS:- Mr. Lalit Kishore,Sr. Advocate 5 03 .02.2010 Petitioners in both the writ applications were working on Class III and Class IV posts as daily wages/ Ad hoc basis for more than 17-18 years. Their prayer is for directing the respondent authorities of the Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna, hereinafter referred to as the I.G.I.M.S, to regularize their services on Class III and Class IV posts. Petitioners in CWJC No. 5537 of 2009 have prayed for quashing of the recommendation of the Standing Selection Committee of I.G.I.M.S. dated 2.1.2009 (Annexure-9) and 17.2.2009 (Annexure-10) by which the case of the petitioners’ for regularization of their service on the post they are working or any other Class IV vacant post have been rejected ignoring the direction of High Court in CWJC No. 5913 of 2003, on 3 frivolous grounds. Prayer of petitioner in CWJC No. 4668 of 2009 is for quashing of Office order contained in Memo no.3170 dated 21.7.2001 issued under the signature of the Deputy Director (Administration) I.G.I.M.S., Patna, whereby the nature of petitioner’s appointment earlier as on ad hoc basis has been converted into contract basis. Petitioner has also prayed for quashing of order contained in memo no. 5426 dated 28.11.2008 issued under the signature of Administrative Officer, I.G.I.M.S., Patna, whereby petitioner though reappointed on contract basis, but a condition has been put that it will be the last contract, not renewable in future. The petitioner’s further prayer is to regularize him in the similar manner as petitioner in CWJC No. 5913 of 2003 was regularized in the similar circumstance. Petitioners in CWJC No. 5537 of 2009 4 had earlier filed CWJC No. 5913 of 2003 for a direction to the respondents to regularize them on the posts they are working since 1986- 1987-1988-1989 and 1990. The writ application was allowed giving direction to the respondents to regularize the service of the petitioners in the light of the judgment of the Supreme Court and considering the fact that the petitioners were not only daily wages employees, but ad hoc appointees given a temporary status working for last 18-20 years. The Director of the Institute was directed to constitute a Committee to consider the cases of the petitioners and other similarly situated persons for their regularization and if they were otherwise found fit, having minimum qualification for the post, appropriate orders to be passed for regularization of their service. The Committee was constituted as per the direction of the Court, which discussed individual cases of petitioners and all similarly 5 situated persons. The proceeding of the Committee was placed before the Board of Governors in its 79th meeting dated 6.2.2006 and the Board resolved that the Committee constituted by the Director should make recommendation as per the direction of the High Court and the report should be placed in the next meeting of the Board. In compliance of the decision of the Board of Governors the Committee met again and examined the history of individual cases, as per statement submitted earlier. Following was finding of the Committee in case of the petitioners:- The post of Animal House Attendant, was being found vacant, sanctioned and existing as per recruitment rule. Petitioner no.1 Uday Kumar Jha working on that post, in unreserved category was recommended for regularization as he fulfilled the eligibility criteria, as per recruitment Rule, by giving benefit of age relaxation. Similar was the 6 finding in case of Md. Ishtiyaque Ahmed (Petitioner no.7) who was working on the post of Dark Room Assistant and belonged to most Backward category. The post existed in recruitment Rule, two posts were sanctioned, out of which, one was found vacant. The petitioner no.7 was recommended as he fulfilled the eligibility criteria as per recruitment Rule, subject to verification of DMRT certificate obtained by him from a recognized institution. Petitioner no.2 Milan Prasad Thakur, petitioner no.3 Madan Mishra, petitioner No.4 Mathura Sharma, Petitioner no.5 Uma Shankar Prasad and petitioner no.6 Saryug Prasad were found working on such posts, which were unsanctioned, and non existing as per Recruitment Rule. The recommendation of the Committee when placed before the Standing Selection Committee, cases of all petitioners for regularization were rejected, ignoring the 7 recommendation of committee. During the pendency of the writ application I.A. No.2829 of 2009 was filed by the petitioners, as subsequent to filing of the writ application, an order contained in Memo No. 2007/Admn. Dated 22.4.2009 was issued under the signature of Administrative Officer, I.G.I.M.S., Patna, whereby the services of the petitioners have been terminated with effect from 22.4.2009. The amended prayer was for quashing of order contained in Memo no. 2007/Admn. Dated 22.4.2009. The amended prayer also formed the part of main writ application. Counter affidavit and supplementary counter affidavit have been filed on behalf of respondent nos.2 and 3. The statement made in the supplementary counter affidavit, in order to clarify the reason for non- consideration of petitioner no.1 is that the Standing Committee of the I.G.I.M.S. in its 8 meeting dated 28.8.2008 resolved that first of all roster clearance for the posts against which the petitioners are to be regularized should be obtained from Health Department as per the Rule and then only decision should be taken for regularization by the Standing Selection Committee. In consonance to Circular no. 2803 dated 3.10.2006 of Personnel and Administrative Reforms Department, all small and scattered posts relating to similar nature of job, eligibility, service conditions, pay scale etc, were amalgamated and thereafter roaster clearance was taken on roaster point. Seventeen types posts of attendants, like office attendant, Library attendant, Laboratory attendant, Animal House attendant, Hospital attendant etc. were amalgamated. The post of Animal House attendant, on which the petitioner no.1 was working, merged with Hospital attendant’s posts. On merger the post of Animal House attendant fell in the reserved 9 category and its’ roaster point was in most backward class category. In this circumstance, petitioner no.1, being a candidate of unreserved category, was not regularized. In the counter affidavit, it is stated that petitioner no.1 was not considered for regularization in view of reservation roaster. Petitioner belonged to unreserved category and post was available in most backward category as per reservation point. The plea of respondents that they have followed the reservation roaster point, is misconceived and cannot be accepted. The reservation policy is applicable in the matters of direct recruitment and matters of promotion only. There is no rule or guidelines framed till date that reservation policy is to be followed in the matters of regularization of service of an employee, who is already in roll. Petitioner no.1 was recommended for regularization by the two Men Committee 10 constituted for this purpose only, in the light of the direction of High Court, with a finding that he fulfilled all eligibility criteria. His case was rejected on a frivolous grounds and the reason, which has been shown for non- consideration of the regularization of petitioner no.1 is not at all convincing. The respondents could have brought such amendment relating to amalgamation of posts, only after completing the task of regularization, as per the recommendation of the two Men Committee, in order to comply the direction of the High Court. The act of the respondents in this matter is contemptuous and it cannot be held to be proper and legal. So far other petitioners in CWJC No. 5537 of 2009 are concerned, for them also the respondents should have asked for sanctioned of posts. The case of petitioner no.7 was rejected on a frivolous ground. Though petitioner no.7 11 had been recommended by the Committee for regularization but, case of one Bappi Raxit was also tagged with petitioner No.7 for regularization. Bappi Raxit was regularized even without verifying his certificate of diploma course, which was mandatory as per the recruitment rule. Admittedly all the petitioners have worked continuously for 17-18 years on Class IV posts, but their claim for regularization has been rejected on the ground that there are no sanctioned or vacant posts on which they can be regularized. In the earlier, writ application, respondents themselves have taken this stand that the steps are being taken for sanctioning of posts, on which petitioners are working. The most surprising aspects of the matter is that if posts were not available, then how for 18-20 years, petitioners were allowed to continue against non-existing posts. It only indicated that the services of the petitioners were 12 required by the Institution, and there was need to get those posts sanctioned, even if those posts were not existing as per recruitment rule. It was essential that the Board of Governors of I.G.I.M.S. should have moved before the appropriate authority for sanctioning of such posts instead of rejecting the claim of the petitioners and terminating them from service. The respondent nos. 2 and 3, are directed to take necessary steps for sanctioning of these posts, and regularization of petitioner nos. 2,3,4,5 and 6. Till the date posts are sanctioned, petitioner nos.2, 3, 4, 5 and 6 will continue to discharge their duties. The recommendation of the Standing Selection Committee dated 2.1.2009 (Annexure-9)and 17.1.2009 (Annexure-10) are quashed. The Director of the I.G.I.M.S. is directed to regularize petitioner Nos. 1 and 7 on the posts for which they are found eligible 13 as per the report submitted by the Five Men Committee. The order of termination as contained in Annexure-12 dated 22.4.2009 is quashed. The Respondents are directed to reinstate the petitioners and allow them to continue on the post till the appropriate order for regularization is passed. The regularization order in case of petitioner nos. 1 and 7 be passed within four weeks and in case of other petitioners’ within three months. CWJC No. 4668 of 2009 The case of petitioner in CWJC No. 4668 of 2009 is identical to the case of the petitioner in CWJC No. 1014 of 2001, Mani Kant Mishra vs. Indira Gandhi Institute of Medical Sciences & ors., where it has been discussed that this is for the Institute to answer, as to why despite availability of a sanctioned posts, ad hoc appointment was made and extended from time to time, but no steps were taken for regular appointment. 14 Petitioner’s case is that in response to an Advertisement issued under the signature of Deputy Director (Administration) I.G.I.M.S., Patna vide Employment Notice no. 09/EMP/97 published in the English Daily Newspaper “The Times of India” on 31.7.1997, he applied for the post of Lower Division Clerk. He was asked to appear in the test/interview on 18.12.1998 at 10.30 A.M. in the office Chamber of Director, I.G.I.M.S., Patna through registered letter dated 5.12.1998. He was selected for the post of Lower Division Clerk, on Adhoc basis, for six months vide Memo No. 1720/ADMN. dated 7.5.1999 issued under the signature of Director, I.G.I.M.S., Patna. The services of the petitioner thereafter extended time to time. Subsequently with effect from 12.5.2001 on account of a decision taken in 54th Meeting of the Board of Governors, petitioner was allowed to work on contract basis. Petitioner’s grievance is that several 15 similarly situated persons, or persons junior to him, were regularized, solely on the ground that they filed writ application and a direction was issued in their favour directing the respondents to constitute a Committee for considering cases of petitioners for their regularization, if they were otherwise found fit, having minimum qualification of job. So far petitioner is concerned; his case was not considered as there was no direction of High Court in his favour. Instead of regularizing him, he was disengaged from his service, in clear violation of the order passed by the High Court in case of other similarly situated persons. By filing supplementary affidavit the petitioner has brought some relevant facts on the record of the case. In the supplementary affidavit, it is stated that while the petitioner was working as Lower Division Clerk in the I.G.I.M.S. a letter dated 16.2.2005 was issued 16 under the signature of Deputy Director, Personnel and Administrative Reforms, Government of Bihar, Patna, whereby the Director, I.G.I.M.S., Patna was asked to fill up the backlog vacancies lying vacant in the Institute after proper advertisement. Two posts were earmarked for Assistant/Clerk, one for Scheduled Tribe and another for Most Backward Class. An advertisement was published in the daily newspaper “Hindustan” on 8.2.2008 inviting applications for filling up vacant posts including the post of Lower Division Clerk. The petitioner also applied for the post of Lower Division Clerk and he was asked to appear in the examination to be held on 28.12.2008. Petitioner appeared in the interview, but thereafter the result was not published. No formal letter was issued showing reason for non publication of result but verbally an information was given by the 17 concerned authority that the examination has been cancelled. Petitioner’s case is that persons appointed after him on daily wages or ad hoc basis or on contract, their services have been regularized but for no obvious reason, the petitioner on account of office order issued vide memo no. 5426 dated 28.11.2008 has been retrenched from service as his contract has ended on 24.12.2008. No counter affidavit has been filed on behalf of the respondents but I find that petitioner’s case is identical to the case of Mani Kant Mishra, petitioner in CWJC No. 1014 of 2001. Petitioner was working in the Institute since 1999 in ad hoc capacity till 2001 and thereafter on contract basis. The petitioner has continued in service since 1999 uninterruptedly. There is no denial that posts are not existing. The Selection process which was initiated by the respondents remained unconcluded, for no obvious reason. 18 Considering the facts and circumstances of the case, a direction is being issued for reinstating the petitioner on his post with all consequential benefits and to regularize him on the post within a maximum period of twelve weeks from the date of production/communication of this order. (Mridula Mishra,J.) A.Kumar