Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21065 of 2012 ====================================================== Rameshwar Prasad @ Rameshwar Yadav, son of late Bishnu Rai, resident of Village - Baluahiya, P.S. - Shikarganj (Chiraiya) Dist.- East Champaran, Motihari .... .... Petitioner/s Versus 1. Zila Parishad, East Champaran, Motihari the Deputy Development Commissioner Cum Chief Executive Officer, Zila Parishad, East Champaran, Motihari through 2. Chief Engineer, Zila Parishad, East Champaran, Motihari 3. Chairman, Zila Parishad, East Champaran, Motihari
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Banwari Sharma, Advocate Mr. Shiv Kumar, Advocate For the Respondent/s : Mr. Satya Prakash Tripathy, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 6 16-01-2013 Heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the respondents. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India with prayers enumerated in paragraph 1 of the writ petition, which reads as follows:- “ That the present application is for issuance of a writ in the nature of writ of mandamus for directing the respondent authorities to accept the joining of the petitioner as per the decision taken in the meeting of the Zila Parishad, East Champaran, Motihari on 27.3.2011 and 4.1.2011 as contained in Annexure-5and 6 respectively to this application. And/or pass such other order or orders as this Hon‟ble Court may think fit and proper.” 3. Learned counsel appearing on behalf of the 2 Patna High Court CWJC No.21065 of 2012 (6) dt.16-01-2013 2 / 4 petitioner submits that the petitioner was appointed on the post of clerk on daily wage basis by an order dated 25.7.1981 issued under the signature of Deputy Development Commissioner-cum- Chief Executive Officer, Zila Parishad, East Champaran, Motihari. The aforesaid order has been brought on record as
Decision
Annexure-1 to the writ petition. The petitioner claims that while he was still working on daily wage basis, he was granted prescribed pay scale by order dated 2.2.1987 (Annexure-2), issued by the respondent Chief Executive Officer of the Zila Parishad, East Champaran, Motihari. It is the case of the petitioner that from 25.7.1981 to 17.9.1992 he remained under continuous service of the respondent Zila Parishad. However, as per his own case, from 18.9.1992 the petitioner absented from service and he joined after a lapse of more than 17 years on 18.6.2009 with a Medical certificate dated 17.6.2009 issued by a Doctor showing therein that he is, now, fit for resuming duty. According to the learned counsel, though the petitioner submitted his joining on the post on 18.6.2009, but his joining was not accepted by the respondent Chief Executive Officer, whereafter he represented the matter and finally a resolution was passed in the meeting dated 27.3.2010 by Zila Parishad, East Champaran, Motihari, wherein it was resolved by resolution No.31 that his joining should be accepted. Aforesaid resolution dated 27.3.2010 ( Annexure-5) was reiterated by another resolution dated 4.1.2011 ( Annexure-6) Grievance of the petitioner is that despite the aforesaid resolutions of Zila Parishad, his joining is not being accepted. Therefore, the petitioner has approached this Court in the present proceeding for a direction for acceptance of his joining on the post of clerk. The learned counsel appearing on 3 Patna High Court CWJC No.21065 of 2012 (6) dt.16-01-2013 3 / 4 behalf of the petitioner has submitted that in view of provisions contained in Section 88 of the Bihar Panchayat Raj Act, 2006 ( hereinafter referred to as „the Act‟) the respondent Chief Executive Officer is obliged to accept the joining of the petitioner. 4. In compliance of the previous orders passed by this Court, a counter affidavit has been filed on behalf of the respondents, wherein it has been admitted that the petitioner was engaged on the post of clerk on daily wage basis in the year 1981 and he remained working on that post till August 1992. Thereafter, according to the respondents, the petitioner absented from duty for more than 17 years and suddenly he gave his joining on 18.6.2009. It has been pointed out specifically in paragraph 10 of the counter affidavit that the petitioner was in judicial custody in connection with a criminal case with effect from 24.9.1995 and was released on bail on 16.10.1996. It has been pleaded that the petitioner has not come with clean hands before this Court and has concealed the material fact about his judicial incarceration for more than one year in connection with a criminal case. The learned counsel appearing on behalf of the respondents has further drawn attention of this Court towards the provisions of Section 87 of the Act. By referring to Section 87 of the Act, it was submitted that in fact the power of appointment of the employees under a Zila Parishad vests in the State Government and Zila Parishad has no authority/ power for making appointment on any sanctioned post under Zila Parishad. 5. After having heard the parties and taking into consideration the pleadings, this Court finds that though the petitioner was appointed on daily wage basis in the year 1981 and 4 Patna High Court CWJC No.21065 of 2012 (6) dt.16-01-2013 4 / 4 remained working as such, but he absented from duty for more than 17 years from 18.9.1992 till 17.6.2009. During the aforesaid long period, no petition was ever filed either by the petitioner or by his family members informing the authorities concerned about his illness, or showing any valid ground for his absence from duty. This Court further finds that the petitioner has concealed the material fact about his judicial custody for more than one year in connection with a criminal case. This fact has been brought on record only by way of counter affidavit filed on behalf of the respondents, which fact has not been disputed by the petitioner. This Court also finds that the power of appointment on any sanctioned post under Zila Parishad vests in the State Government in view of the provisions contained in Section 87 of the Act. Zila Parishad has not been vested with the powers for making appointment on any Class III or Class IV posts. Therefore, on the basis of the resolutions as contained in Annexures-5 and 6, the petitioner cannot claim his regularization or fresh appointment on the post of clerk. Respondents cannot be faulted for not accepting his joining in the year 2009. 6. For the reasons recorded above, this Court is not inclined to accede to the prayer made on behalf of the petitioner for issuance of a direction to the respondents for acceptance of his joining on the post of clerk. 7. In the result, the writ petition has to fail and is, accordingly dismissed. Kanth/- (Birendra Prasad Verma, J)