Radhika Singh v. The State Of Bihar

Patna High Court CWJC No.14713 of 2012 (2) dt.28-01-2013 2 beyond the sanctioned strength. (II) For issuance of an appropriate writ in the nature of certiorari for quashing the subsequent order dated 31.03.2008 contained in memo no. 178 dated

31.03.2008 passed by the Respondent no.7, whereby and where under the Respondent no.7 has been pleased to revert back the services of the petitioner in daily wager and in his place the services of the Respondent no.8 is adjusted without asking any show-cause notice or opportunity of hearing to the petitioner. (III) For issuance of an appropriate writ in the nature of mandamus, commanding and directing the Respondent Authorities to maintain regularization of the petitioner made under office order no.51 dated 01.12.2006 passed compliance with the order of the competent Authorities.” Learned counsel for the petitioner has submitted that the decision of the authorities of regularizing the services of the respondent no.8 in preference to the petitioner is bad, inasmuch as, the petitioner ranks senior to the respondent no.8 by virtue of his date of appointment being earlier to the respondent no.8. Counsel has further submitted that the petitioner was engaged on daily wages on 20.6.1981 whereas respondent no.8 was engaged on daily wages on 28.6.1981 and yet the Three Men Committee had chosen to regularize the services of the respondent no.8 in preference to the petitioner. Patna High Court CWJC No.14713 of 2012 (2) dt.28-01-2013 3 When this Court had asked the learned counsel for the petitioner to show a specific averment as with regard to the aforementioned submission, learned counsel for the petitioner had relied on the averments made in paragraph no.21, 23 to the writ application which reads as follows:- “21. That, it is stated that services of the employees including the Respondent no.8 were not regularized by the department, they made objection before the Respondents and Respondent Authorities constituted a three men committee and thre committee decided the inter- se-seniority on the basis of the date of birth not on the basis of entry in the service and recommended the cases for regularization of their services as also ordered to revert back the services of the petitioner and others for adjustment of their services.

23. That, it is stated that pursuant to the order of the Respondent no.4, the Respondent no.7 has been pleased to revert back the services of petitioner in daily wager and in his place the services of the Respondent no.8 is adjusted without asking any show-cause notice or opportunity of hearing to the petitioner vide memo no. 178 dated 31.03.2008” From reading of the aforesaid two paragraphs, this much becomes clear that the learned counsel for the petitioner has invented a new case beyond the pleadings in paragraph no.21 and 23 where not a word has been said with regard to the date of Patna High Court CWJC No.14713 of 2012 (2) dt.28-01-2013 4 engagement of the petitioner on daily wages nor anything has been said about the respondent no.8 in this regard. At this stage, it would be also relevant to note that the stand of the respondents to the averments made in the writ application and learned counsel for the State in this regard has relied on paragraph no.24, 25 & 26 of the counter affidavit:- “24. That out of 2277 technical posts of Class IV employees as aforesaid 11 posts were allotted to Public Health Division, Dhaka and out of 11 posts, 6 posts were for General Category whereas remaining 5 posts were for reserved category.

25. That on the basis of the joint seniority list as aforesaid altogether 9 employees were recommended for adjustment on the vacant sanctioned post of Khalasi and Key men-cum- Chowkidar on the basis of the decision taken by the Three Men Committee vide order contained in Memo No. 221 dated 24.03.2008 issued under the signature of the Chief Engineer (Mechanical), Public Health Engineering Department, Government of Bihar. The Memo No. 221 dated

24.03.2008 has already been annexed as Annexure 8 to the writ petition.

26. That the name of the petitioner could not be recommended on the basis of joint Seniority list for adjustment on the newly created sanctioned post in the Public Health Division, Dhaka by the Three Men Committee as the person placed upto Sl. No.6 under the General Category of the Joint Seniority list could only be adjusted and accordingly the petitioner, who was placed at Sl. No.8 of the said Patna High Court CWJC No.14713 of 2012 (2) dt.28-01-2013 5 joint Seniority list could not be adjusted on the newly created sanctioned post in absence of sanctioned post.” From reading of the aforementioned averments, it would be clear that the zone of each division was made basis for ascertaining the vacancy on which such regularization could take place and the Three Men Committee having found that there were only 11 vacant posts till the cutoff date had yearmarked six posts for regularizing the services of persons like the petitioner from the general category, inasmuch as, remaining five posts had to be given to the reserved category. Thus the moment this Court would find that a rationale was fixed in course of such regularization, it would refuse to act as an appellate authority on the decision taken by the respondents. The scheme of regularizing the employees working on daily wages on settled principles, this Court would find it difficult to disturb the regularization order of the respondent no.8 specially when no such case has been made out against him in the writ application. In view of the above, all that the petitioner can be given liberty is that if he would still satisfy the competent authority, namely, the Principal Secretary of the Public Health Engineering Department that it was he (petitioner) who ought to have been regularized in service in place of respondent no.8, the Patna High Court CWJC No.14713 of 2012 (2) dt.28-01-2013 6 said issue will be examined by the Principal Secretary and if any adverse decision thereof is required to be taken against the respondent no.8, the said authority shall first issue notice to him and pass an appropriate order only after affording opportunity of personal hearing to the Respondent no. 8. It is made clear that either the petitioner or the respondent no.8 may be regularised inasmuch as, the number of posts and the vacancy as stated in the counter affidavit will remain undisturbed. This exercise must be completed by the Principal Secretary of the Public Health and Engineering Department within a period of six months from the date of receipt/production of a copy of this order which must be filed by the petitioner along with a copy of his representation endorsing evidence of his being senior to Respondent no. 8. With the aforementioned observations and direction, this application is disposed of. (Mihir Kumar Jha, J) Rishi/-