Pramod Kumar v. Patna

17. Pramod Kumar Mandal, Son of Sri Kanti Prasad Mandal, resident of Village+Post-Sahu Parbatta (Khagra Batolia), P.S.-Navachhiya, District-Bhagalpur.

18. Motilal Goswami, Son of Radha Govind Goswami, resident of Village, Post & P.S.-Borio Bazar, District- Sahebganj. - 2 -

19. Jaykrishna Thakur, Son of Sri Bhola Thakur, resident of Village+Post-Jalsima, District-Saharsa.

20. Rajendra Yadav, Son of Late Ramlal Yadav, resident of Village- Safipur Harsinghra, Post-Seruahda, P.S.-Khisarsarai, District-Gaya. 21. Sanjay Kumar Singh, Son of Late Jagdish Prasad Singh, resident of Village+Post-Kanchan Nagar, District-Bhagalpur.

22. Krishnanadan Singh, Son of Ram Lakhan Prasad Singh, resident of Village-Baikathpur, Post-Baikathpur, P.S.-Khushrupur, District- Patna. ……Petitioners. Versus

1. The State of Bihar, through the Commissioner-cum-Secretary, Housing Department, Government of Bihar, Vishwesaraiya Bhawan, Bailey Road, Patna.

2. The Bihar State Housing Board through its Managing Director, 6 Sardar Patel Path, Path.

3. The Managing Director, Bihar State Housing Board, 6 Sardar Patel Path, Path.

4. The Secretary, Bihar State Housing Board, 6 Sardar Patel Path, Path.

5. The Executive Engineer, Bihar State Housing Board, Patna Division No. 1, Lohia Nagar, P.S.-Lohia Nagar, District-Patna. 6. The Executive Engineer, Bihar State Housing Board, Patna, Division No. 2, Bahadurpur, P.S.-Agamkuan, District-Patna. 7. The Executive Engineer, Bihar State Housing Board, Patna, P.H., Bahadurpur, P.S.-Agamkuan, District-Patna.

8. The Executive Engineer, Bihar State Housing Board, Darbhanga Division, P.S. Laheriasarai, District-Darbhanga.

9. The Executive Engineer, Bihar State Housing Board, Bhagalpur Division, Bhagalpur, District-Bhagalpur. ----------- For the Petitioner For the State For the Housing Board : Mr. Rajendra Prasad Singh, Sr. Advocate Mr. Arvind Kumar Singh : Mr. Ajay Kumar Sharma, AC to AAG III : Mr. Rajiv Nayan Singh, Advocate ----------

18.03.2009 Heard learned counsel for the petitioners, learned counsel appearing for the respondent Housing Board and learned counsel for the State. - 3 - All the twenty two writ petitioners, claim to be retrenched Chowkidars of the respondent Housing Board, have challenged the decision of the Housing Board dated

08.05.2002 contained in Annexure-1 whereby in purported compliance of the order of Supreme Court dated 13.02.1991 passed in S.L.P. No. 11538/1988, Civil Appeal No. 766/1991 (Gauri Shankar Prasad & Others Vs. Bihar State Housing Board and Others) and different orders of this Court, the respondent Board regularized services of several daily wage workers in the work charge establishment and retrenched such other daily wage workers including the petitioners who could not be so regularized. On behalf of petitioners the main grievance raised is that some of the daily wage workers who were earlier working as Chowkidars were junior to some of the writ petitioners and hence the petitioners No. 2, 10, 11, 13 & 15 have been superseded by several junior daily wage Chowkidars. It is further stated in paragraphs 22 & 23 of the writ petition that petitioners No. 12, 14 and 21 have also been superseded by several junior Chowkidars. Similar is the case in respect of petitioners No. 5, 7 & 16. - 4 - On behalf of respondent Board it was highlighted that Supreme Court in its order made it clear that considering the relevant facts stating to the Work charged establishment of the Board, there was no scope to provide regular work to more than 257 daily wage workers. That order of the Supreme Court has been noticed in detail in the impugned order contained in Annexure-1 also. It is further pointed out in the impugned order that there is a separate decision in respect of daily wage employees working on the post of Chowkidar. As per consideration in the impugned order there were 111 sanctioned posts of Chowkidar against which there were 200 daily wage Chowkidars. 101 daily wage Chowkidars had already been regularized earlier in part compliance of the Supreme Court order and for the remaining 10 vacancies the names of 10 persons were selected as per seniority list of daily wage Chowkidars and the other persons including the petitioners had to be retrenched/removed. In reply to the specific allegation by the petitioners made in paragraphs 21 & 22 of the writ petition, learned counsel for the respondent Board submitted that similar - 5 - grievance was raised by some other daily wage employees working as Chowkidars and such challenge was not accepted by this Court in the judgment and order dated 31st July, 2002 passed in C.W.J.C Nos. 6395/2002 and some other analogus cases. A copy of that judgment has been annexed as Annexure-G to the counter-affidavit. The said judgment was challenged through several letters patent appeals which were dismissed on 21.07.2003 by judgment and order contained in Annexure-H and the petition for special leave to appeal in the Supreme Court was also dismissed on 22nd September, 2003 vide Annexure-I to the counter-affidavit. A perusal of judgment contained in Annexure-G shows that similar submissions were advanced before the writ court and the plea was repelled on two grounds. In that case it was found that the petitioners had not given their dates of appointment but had only made a bald claim of being appointed earlier in 1980-81. Secondly it was held that the number of posts was admittedly limited and the petitioners now could not find a place against sanctioned post of Chowkidar unless those already regularized as - 6 - Chowkidars were impleaded and their regularization were challenged. No such challenge to regularization of others as Chowkidar has been made in the present writ petition also. In order to be fair to learned counsel for the petitioner, it must be noticed that in the present case petitioners have relied upon Annexure-3, a list of daily wage Chowkidars which discloses the dates of appointment of the petitioners as well as that of other daily wage Chowkidars who were junior to some of the petitioners and have been regularized. Since those junior daily wage employees already regularized are not before this Court, at this stage after seven years, this Court does not deem it proper to ask the petitioners to implead those daily wage Chowkidars who have been regularized and are allegedly junior to the petitioners. Hence claim of the petitioners for regularization on the post of Chowkidar can not be allowed in absence of any vacant and sanctioned post of Chowkidar for the work charge establishment of the respondent Board. On behalf of petitioners, an alternative submission was made that the impugned order itself shows towards the end that all the 25 different posts could not be filled up and - 7 - in fact 30 remained vacant in spite of order of the Supreme Court on account of a plea that no daily wage employee was available with working experience for those posts. It was submitted that by a recent judgment, a bench of this court has allowed writ petition of one claimant against the post of Mixture Helper but still 29 posts remained vacant. According to learned counsel for the petitioners out of 29 vacant posts mentioned in the impugned order, 24 are of such general nature that their duties can easily be performed by the petitioners because those posts are also of class-IV and petitioners were also daily wage employees on the post of Chowkidar which is a class-IV post. Hence learned counsel for the petitioners has prayed that unlike in the other case decided by the judgment contained in Annexure-G in which the petitioners had declined to be considered for other posts, the petitioners are willing to be considered for regularization against other remaining posts. Learned counsel for the respondent Board has replied that the aforesaid submission that 24 posts are of general nature requiring no specialized knowledge or experience may not be correct and the number of such posts may be lesser. - 8 - Considering the aforesaid alternative submission and the other relevant fact that admittedly persons junior to the petitioners as daily wage Chowkidars appear to have been regularized in the first transaction of regularization covering 101 posts of Chowkidars and which was sought to be justified by learned counsel for the Board on the ground of applicability of principle of reservation, this Court while rejecting the main prayer, disposes of this writ petition by directing the respondent Board to consider the claim of the petitioners for regularization on the other remaining vacant posts as indicated in the impugned order keeping in mind the past service of the petitioners, their suitability and the requirement of the posts. The petitioners’ writ petition has remained pending in this Court for about seven years, hence, the aforesaid exercise of consideration of petitioners’ cases afresh for regularization against remaining vacant posts must be done within a period of three months from the date of production/communication of this order. Vikash/- (Shiva Kirti Singh, J.)