IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14702 of 2006 1. Brij Mohan Pandey, son of late Ram Badan Pandey, resident of village Barga Chhiya, P.S. Bairya, District West Champaran 2. Ramashish Prasad, son of Shri Sheopujan Prasad, resident of village Bargachhiya, P.S. Bairya, District West Champaran 3. Panchanand Gaura, son of late Mohan Gaura, resident of village Pakhaul, P.S. Sahodara, District West Champaran 4. Awadesh Prasad Pal, son of Bhiswanath Prasad, resident of village Bargajwa, P.S. Sikarpur, District West Champaran 5. Chandra Kumar Dubey, son of late Gopaji Dubey, resident of village Shivrajpur, P.S. Nautan, District West Champaran … Petitioners Versus 1. The State Of Bihar 2. The Commissioner cum Secretary, Department of Health, Bihar, Patna 3. The Director in Chief, Health Services, Bihar, Patna 4. The District Magistrate, West Champaran, Bettiah 5. The District Malaria Officer, West Champaran, Bettiah … Respondents ---------------------------------- 7. 12.12.2011 Heard counsel for the parties. At long last the Collector of West Champaran District produces a final panel dated 30.11.2011 for appointment on Class IV post in the district of West Champaran either in the office of the Collector and its attached offices or in other offices under the district which have to be filled up in terms of the Personnel Department’s circular No. 16441 dated 3.12.1980. Counsel for the petitioner would confine his criticism to the said panel only as with regard to individual cases of the five petitioners. He has submitted that as per averments made in today’s 4th supplementary counter affidavit it is only petitioner no.3 Panchanand Gaura who has found place in the final panel produced by the Collector but there is no justifiable reason for omitting the name of petitioners no. 1 and 4, namely, Brij Mohan 2 Pandey and Awadhesh Prasad Pal on the ground of their being over age. He would submit that from the circular issued by the Board of Revenue dated 26th May, 1987 it would be clear that any persons working on casual basis on daily wages or even otherwise like in the case of the two petitioners working as Seasonal worker in D.D.T. operations they would be entitled for relaxation of their age at least to the period they were working in such department. He would submit that if this principle could have been followed by the Collector of the District, the name of petitioners no. 1 and 4 could have been included in the panel, inasmuch as two of them had worked in the years 1988 to 1999 as a Seasonal worker in D.D.T. operations of the Health Department. In the considered opinion of this Court the relaxation of age has to be made strictly in accordance with the terms of the advertisement. Such advertisement was issued in keeping with the circular laid down by the Personnel Department dated 3.12.1980 and its subsequent clarifications. The panel has been prepared for filling up all the vacant class III post in the District of West Champaran for which either the Collector of the District is the appointing authority or nodal authority before whom requisitions have to be submitted by the other departmental heads of the District level for providing suitable candidates for their appointment from the same panel. The circular which has been relied by the petitioners has been issued by the Secretary to the Board of Revenue and relates to only appointment in Mufassil 3 offices and is related to preparation of a list of Umidwar Peon. The concept of Umidwar Peon was earlier in vogue, inasmuch as Register-30 was preserved for making arrangement for any temporary work which the establishment of the Collector used to have. This concept of Umidwar Peon in fact was itself quite vague if not irrelevant in the changing scenario where no one is supposed to wait and be on rolls awaiting for smiling of his luck to get work by way of assignment. It was this aspect of the matter which was sought to be resolved by the Personnel Department which under the Rules of Executive Business has the power to lay down service conditions including manner of appointment in Government services. It is thus clear that the circular of Board of Revenue dated 26th May, 1987 has outlived its utility and having been not saved by the Personnel Department by any circular, is creating more of a problem than a solution. The cause of Articles 14 and 16 of the Constitution of India would be better sub-served if all persons are given due weightage and consideration of their merits. Whether a person was engaged on daily wages temporarily for a day or some time for years should not weigh if selections are to be made of the best candidate from open market, inasmuch as engagement on daily wages is also never made after publication of vacancies and/or undergoing prescribed procedure fulfilling the test of Articles 14 and 16 of the Constitution of India. Be that as it may, once the advertisement did not contain any clause for relaxation of age the Collector of the 4 District has rightly not given any weightage to the circular of the Board of Revenue dated 26th May, 1987. This Court, therefore, would not find any merit in the claim of petitioners no. 1 and 4 for being included in the panel if they had already exceeded the maximum age limit as prescribed in the advertisement. It will be, however, open for them to approach the State Government for issuance of clarification as with regard to the provision of relaxation of age so that even in future if an advertisement for filling up Class IV post is issued and the Personnel Department in keeping with the circular of the Board of Revenue may lay down the provision for relaxation of age the petitioners may get the benefit of such relaxation. It has to be also kept in mind that the Board of Revenue had a control only on the revenue establishment of the district and therefore, when the petitioners were also not working in the revenue establishment, inasmuch as their engagement was made in the Health Department, they could not have been automatically entitled for relaxation of age even if the circular of the Board of Revenue was made applicable in their case. This Court, however, would not like to water down the terms and conditions of the advertisement in any manner so as to open flood gate to make relaxation of age on the ground of prescription of age in the advertisement but then it will be the duty of the Personnel Department and its Principal Secretary to set out an uniform norms for appointment on Class IV post in the establishment of 5 Collectorate and other departments for which requisitions have to be made to the Collector in terms of Circular dated 3.12.1980. It is high time that the circular of the Personnel Department contained in letter no. 16441 dated 3.12.1980 is made more broad based and specific so as to rule out the possibility of confusion as created by the other departments. Reverting back to the case of petitioners no. 2 and 5, namely, Ramashish Prasad and Chandra Kumar Dubey this Court would find that the scope of confusion as explained above is directly involved at least in their cases. A person to be registered in the employment exchange and submit his application through employment exchange was the mode prescribed in terms of Employment Exchange Act, 1966. At a point of time when the Government had more openings and the appointing authorities were submitting their requisition to employment exchange, probably the usefulness of such registration to employment exchange was there. In the changed scenario where now the applications can be filed by the eligible candidate even online, such prohibited restrictions of being registered in the employment exchange or sending application to the appointing authority through employment exchange even when there is a provision also in the same advertisement for submission of the application directly to the appointing authority like in this case to the Collector of West Champaran District, does not actually seek to achieve any laudable purpose. The Collector of the West Champaran District 6 present in Court, however, informs this Court that it is part of the instruction contained in the Government circular that every application for appointment on Class IV post has to be received either through employment exchange or from a person directly in his office but he must be registered with the employment exchange. As noted above, if the idea of the empanelment in employment exchange is a must for making any every appointment in the State and that is how the rights guaranteed under Articles 14 and 16 of the Constitution of India has been sought to be achieved, the same could have been appreciated by this Court but there is nothing at least in the Employment Exchange Act which mandates compulsory registration of all unemployed people in order to get employment in the State. The Government as a model employer will have to set out uniform terms and conditions and if only for appointment in the Collectorate on Class IV posts, this employment exchange theory is applied and for other departments this practice is not to be followed it will only create more of obstruction and/or confusion, rather than achieve any sanguine purpose. The Personnel and/or General Administrater Department of the State Government therefore must address itself on this issue so that a uniform decision is taken even in respect of compulsory registration of every individual seeking employment in the State. Alternatively if it is found that such requirement was made for the Collectorate establishment the Government can also clarify/ simplify the 7 procedure. In the individual facts of the case of the two petitioners 2 and 5 this Court would find that the reason given for non-empanelment is that they have not submitted their application through employment exchange. It is not the case of the respondents at least in the supplementary counter affidavit filed today that petitioners no. 2 and 5 were also never registered with the employment exchange. In that view of the matter, this Court would give liberty to petitioners no. 2 and 5 to produce evidence of their being registered with the employment exchange on any date prior to 18.2.2011 and the Collector of West Champaran District is hereby directed to ensure that if such evidence is produced he will reconsider their case for empanelment strictly in accordance with law. A final decision in this regard must be taken within a period of 15 days from the date petitioners no. 2 and 5 would produce evidence of their being registered in the employment exchange. The Collector of West Champaran District present in Court has assured that now when the panel has been finalized after inviting objection, he would take prompt steps for filling up 169 vacancies which alone are to be filled up from this panel. This Court would believe on such assurance given by the Collector of the District so that the real purpose of preparation of panel is also sub-served by appointing the eligible persons strictly in accordance with the panel. 8 With the aforementioned observations and directions, this application is disposed of. Let a copy of this order be sent to the Chief Secretary of the Govt. of Bihar for formulating of a uniform policy as with regard to appointment on Class IV post. The appearance of Mr. Shridhar C., the Collector of West Champaran District is hereby dispensed with. (Mihir Kumar Jha,J.) Surendra/