Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.15078 OF 2012 =================================================== 1.RAMLAKSHAN SINGH SON OF LATE RAMNANDAN SINGH RESIDENT OF VILLAGE & POST- HARPURKALA, POLICE STATION- MEJARGANJ, DISTRICT- SITAMARHI, AT PRESENT RESIDENT OF BANU CHHAPAR, POLICE STATION- BETTIAH, WEST CHAMPARAN. 2.SATYANARAYAN PRASAD SON OF LATE RAGHUNATH RAUT RESIDENT OF VILLAGE- KHIRIYA GHAT, CHAUTARIA TOLA, POST & POLICE STATION- BAIRIYA, DISTRICT- BETTIAH, WEST CHAMPARAN. 3.RAMANAND PRASAD SON OF JANG BAHADUR PRASAD RESIDENT OF VILLAGE- LAPTAHI, POST- GURWALIA, POLICE STATION- MANUA PUL, DISTRICT- BETTIAH, WEST CHAMPARAN. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR. 2.THE SECRETARY, DEPARTMENT OF REVENUE AND LAND REFORMS, GOVERNMENT OF BIHAR, PATNA. 3.THE COMMISSIONER, TIRHUT DIVISION, MUZAFFARPUR 4.THE DISTRICT MAGISTRATE, BETTIAH, WEST CHAMPARAN. 5.THE DEPUTY DEVELOPMENT COMMISSIONER, BETTIAH, WEST CHAMPARAN. 6.THE DEPUTY COLLECTOR, NAZARAT, BETTIAH, WEST CHAMPARAN. .... .... RESPONDENT/S =================================================== Appearance : For the Petitioner/s:Mr. Kalyan Shankar, Advocate & Mr. Manoj Kumar, Advocate. For the Respondent/s:Mr. Ajay SC-11 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4/ 08-03-2013 Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "For issuance of writ in the nature of mandamus commanding/direct the respondents to grant the age relaxation to the petitioners as the provision conferred by Rules-54, Appendix-3 of the Bihar Service Code. Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 2 For issuance of writ to direct the respondents to add the name of petitoners in the panel published for Class-IV appointment under the district West Champaran, Vide Memo No. 264, dated 22.10.2011. For directing the respondent to consider the name of the petitioners against for sanctioned and vacant posts of class- IV employee under the District West Champaran and it’s attached offices. appointment their 3. Mr. Kalyan Shankar, learned counsel appearing on behalf of the petitioner in view of the aforementioned prayer has submitted that the reason for non inclusion of the name of the petitioner in the panel prepared by the Collector of West Champaran district on 30.11.2011 that the petitioners were over age cannot be approved because the advertisement itself had envisaged relaxation of such over age person as per the Government policy. He has also submitted that the Government policy in this regard will be one which was notified by the Personnel and Administrative Reforms Department on 16.03.2006. In this regard he has explained that if the government policy had been followed the petitioners could have automatically become entitled for consideration of their appointment, inasmuch as, many persons having lesser experience than the petitioners have already been appointed by
Legal Reasoning
Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 3 the Collector of the West Champaran district on the basis of the panel dated 30.11.2011. 4. In this case a counter affidavit has been filed, wherein, it has been stated that the case of the petitioners for relaxation of their age was initially rejected by the Collector of the West Champaran district but the State Government by its order dated 14.08.2012 had remitted the matter back to the Commissioner of Muzaffarpur Division. According to the learned counsel for the State, the Commissioner of Tirhut Division by his order dated 14.09.2012 has again rejected such claim of relaxation of age of the petitioners. 5. In the considered opinion of this Court the issue of relaxation of age is an individual consideration but the aforesaid order of the Commissioner of Tirhut Division, is a non speaking general order which does not disclose the application of mind by him to the facts of the case of the petitioner. The said order for the sake of clarity is quoted hereinbelow:- iazs"kd] vk;qDr] frjgqr ize.My] eqtIQjiqjA lsok esa] Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 4 ftyk inkf/kdkjh if’pe pEikj.k] csfr;kA fo"k;& prqFkZoxhZ; in ij lh/kh fu;qfDr gsrq mez lhek ikj dj jgs mEehnokj vH;FkhZ;ksa dh mez lhek ykHk djus ds laca/k esA izlax& vkids i=kad&88@LFkk0 fnukad 12-05-12 egk’k;] mi;qZDr fo"k;d izklkafxd i= ls izkIr fo"k;kafdr izfronsu ij bl dk;kZy; ds i=ka LFkk0 17&23@11&2849 fnuaakd 07-06-12 }kjk lkekU; iz’kklu foHkkx] fcgkj] iVuk ls foHkkxh; fu.kZ; lalwfpr djus gsrq vuqjks/k fd;k x;kA ljdkj ds voj lfpo] lkekU; iz’kklu foHkkx] fcgkj] iVuk ds i=kad 11182 fnuakd 11-8-12 }kjk fo"k;kafdr ekeys esa foHkkxh; fu.kZ; lalwfpr fd;k x;k gSA …Nk;kizfr layXu‰ mDr foHkkxh; fu.kZ;@fn’kk funsZ’k ds voyksdkijkUr lE;d fopkjksaijkUr cgkyh gsrq le; lhek {kkUr djus dk vkosnu vLohd‘r fd;k tkrk gSA vuqyXud&;FkksDrA fo’oklHkktu g0@& vk;qDr frjgqr ize.My eqtIQjiqjA 6. As would be evident from the aforementioned order and its underlined portion it would also become clear that the same refers to the letter of the Commissioner dated 07.06.2012 seeking guidelines from the State Government as with regard to grant of relaxation in age. The Government letter dated 14.08.2012 as contained in Annexure-C had merely the effect of remitting the matter back Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 5 to the Commissioner of Tirhut Division as would be evident from the following passage:- ^^fo’k;%& prqFkZoxhZ; in ij lh/kh fu;qfDr gsrq vf/kdre~ mez lhek ikj dj pqds mEehnokj vH;fFkZ;ksa dh mez lhek {kkar djus ds laca/k esa A egk’k;] funs'kkuqlkj mi;qZDr fo’k;d Hkonh; dk;kZy; ds i=kad&2849] fnukad 07-06-2012 ds lanHkZ esa dguk gS fd ftyk inkf/kdkjh] if’pe pEikj.k }kjk djkbZ x;h lwph esa vafdr vH;fFkZ;ksa dh lwph] muds }kjk izR;sd o"kZ de ls de 240 fnu fd, x, dk;Z fnol ds vk/kkj ij rS;kj dh x;h gS ;k ugha] budh ojh;rk fdl izdkj fu/kkZfjr dh xbZ gS rFkk vf/kd mez gksus ds ckotwn ;s lHkh rjg ls fu;qfDr gsrq ;ksX; gS] blls larq"V gksrs gq, foRr foHkkx ds ladYi la0&2937] fnukad 31-03-2011 rFkk foHkkxh; Kkikad&7365] fnukad 29-06-2011 ds izko/kkuksa ds vkyksd esa fcgkj lsok lafgrk ds vLi"V& 54 …ifjf’k"V&1 ds lkFk ifBr‰ ds rgr Hkonh; dks lkSaih x;h ’kfDr;ksa ds v/khu mez lhek {kkar djus ds laca/k esa vius Lrj ls dkjZokbZ djus dh d‘ik dh tk, A** 7. The aforementioned Government order dated 14.8.2012 therefore, would only mean that the Commissioner of Tirhut Division was directed to exercise his power in terms of Rule-54 of Bihar Service Code authorizing the appointing authority to pass order for relaxation of age. The Commissioner of Tirhut Division, however, without disclosing the reasons by one line order has rejected the cases of all the persons seeking relaxation of Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 6 age in the matter of appointment on a class-IV post. That however could not have been done, inasmuch as, the advertisement itself had envisaged relaxation of age in the following terms:- ^^3- bl ladYi ds izko/kkuksa esa vkPNkfnr nSfud osruHkksxh dfeZ;ksa dh fu;qfDr gsrw ;fn mez fu;qfDr ds fy, p;fur gksus ds le; fu/kkZfjr mez lhek ls vf/kd gks rks mUgsa mez {kkafr dk ykHk nsdj fu;qDr fd;k tk ldsxk A** 8. This Court therefore will have no difficulty in accepting the next submission of
Legal Reasoning
Mr. Kalyan Shankar, learned counsel for the petitioner that the Government Circular dated 16.03.2006 envisaging preference to daily wage employees in the matter of appointment on class-IV post had itself prescribed for considering the cases of daily wage employees for regular appointment by giving them the benefit of relaxation of age. Paragraph no. 3 of the Government Circular dated 16.03.2006 reads as follows:- ^^3- bl ladYi ds izko/kkuksa ls vkPNkfnr nSfud osruHkksxh dfeZ;ksa dh fu;qfDr gsrq ;fn mez fu;qfDr ds fy, p;fur gksus ds le; fu/kkZfjr mez lhek ls vf/kd gks rks mUgsa mez {kkafr dk ykHk nsdj fu;qfDr fd;k tk ldsxkA** 9. Admittedly, the Government Circular dated 16.03.2006 was issued in furtherance of the object of considering the cases of such Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 7 daily wagers who were in service till 11.12.1990, as would be evident from the following portion of the same circular:- ^^dkfeZd ,oa iz’kklfud lq/kkj foHkkx ds ladYi la[;k 5940] fnukad 18 twu 1993 ds rgr ;g fu.kZ; fy;k x;k Fkk fd fnukad 1 vxLr 1985 ds ckn vfu;fer :i ls dk;Z ij j[ks x;s nSfud osruHkksxh O;fDr;ksa dh ,slh fu;qfDr jn~n dj nh tk;] ljdkjh dk;kZy;ksa esa ,slh fu;qfDr;k¡ ugha dh tk; vkSj fnukad 1 vxLr 1985 ds iwoZ ls de&ls&de 240 fnuksa ls dk;Zjr nSfud osru Hkksfx;ksa dks vU; ifjfLFkfr;k¡ leku jgus ij fu;qfDr esa vf/kekurk nh tk; A jkT; ljdkj ,oa fofHkUu deZpkjh la?kksa ds lkFk fnukad 21 tuojh 2005 dks gqbZ lgefr ds vkyksd esa jkT; ljdkj ds foHkkxksa@dk;kZy;ksa esa nSfud osruHkksxh dfeZ;ksa ds fy, ladYi la[;k 489]fnukad 10 ebZ] 2005 ds rgr dV vkQ MsV fnukad 1 vxLr 1985 ls c<kdj fnukad 11 fnlEcj] 1990 fd;k x;k vkSj mUgsa fu;qfDr esa vf/kekurk nsus esa vk jgh dfBukbZ;ksa ds fujkdj.k gsrw ;kstuk crkus ds fy, lfpoksa dh ,d lfefr dk xBu fd;k x;k A** 10. In view of the above, the Commissioner of Tirhut Division was required to examine the cases of the petitioners and others by looking into as to whether they had worked on daily wage till 11.12.1990 and had completed 240 days. From Annexure-2 to the writ application it is absolutely clear that the petitioner no. 1, Ramlakshan singh had worked on daily wage from 26.03.1990 to 11.12.1990 and had completed 261 days on daily wage, similarly, petitioner no. 3, Ramanand Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 8 Prasad at serial no. 13 had completed much more than 240 days as on 11.12.1990, inasmuch as, his working experience is as follows:- Jh jkekuUn izlkn 13 vapy vf/kdkjh ds i=kad 249 fnukad1104-08@ vuqe.My inkf/kdkjh ds i=kad 17 fnukad 18-03-08 1986 1987 1988 1989 1990 13-08-1986 ls 31-12-1986 01-01-1987 ls 31-12-1987 01-01-1988 ls 31-12-1988 01-01-1989 ls 31-12-1989 01-01-1990 ls 11-12-1990 0&4&18 140 01&0&0 365 01&0&0 365 01&0&0 365 r Zj ; d k 0&11&11 345 04&03&29 05&01&1968 fi0 oxZ v"Ve oxZ 04&03&29 11. It is only in the case of petitioner no. 2 that his engagement on daily wage was for the period from 29.12.1993 to January 1996 and therefore, in terms of the aforesaid Government Circular he having not worked on daily wage for a single day prior to 11.12.1990 will not be covered for the purposes of relaxation of his age. 12. Mr. Kalyan Shankar, learned counsel for the petitioner is also correct in placing reliance on Annexure-9 the order of the Divisional Commissioner dated 05.09.2011, wherein, he had granted relaxation of age in respect of 22 candidates in terms of Rule 54 of Bihar Service Code and therefore, the order passed by him subsequently on 12.09.2011 rejecting the case of all others including the petitioner appears to be also vitiated causing Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 9 discrimination among the same set of persons. 13. In view of the aforementioned discussion this Court would quash the order of the Divisional Commissioner dated 14.09.2012 as contained in Annexure-D to the counter affidavit and remit the matter back to him to reconsider the case of petitioner nos. 1 and 3 for relaxation of their age. 14. In order to facilitate early consideration, this Court would also give liberty to the petitioner nos. 1 and 3 to produce a copy of this order along with their self contained representation for considering the grievance of relaxation of their age and the Commissioner of Tirhut Division must pass his final orders within a period of two months from the date of filing of such representation by the petitioner nos. 1 and 3. 15. In the event, petitioner nos. 1 and 3 would be granted relaxation of age, their names would be included by the Collector Bettiah, West Champaran at the appropriate place in the panel dated 30.11.2011 and if any person below them in the respective category among 124 persons in all who have been appointed is found to be placed below them, the appointment of petitioner nos. 1 and 3 Patna High Court CWJC No.15078 of 2012 (4) dt.08-03-2013 10 shall be made either by removing the last candidate of the respective category or also by appointing them without disturbing the panel. This exercise shall also be completed by the Collector of West Champaran district within sixty days of the receipt of the order of the Commissioner relaxing the age of the petitioner no. 1 and 3. 16. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)