Shayamanand Rai v. The State Of Bihar

Patna High Court CWJC No.14261 of 2012 (2) dt.21-01-2013 2 impugned order dated 22.9.2009 passed in Record No.01/2009 by respondent no.5 District Magistrate Katihar and further direct the respondents to pay arrears of salary to the petitioners for the period worked by the petitioners and allow the petitioner to work at their respective place of posting.” Learned counsel for the petitioners has submitted that once the appointment of the petitioners on compassionate ground on the post of Chaukidar was already made by the competent authority on 3.9.2005, their removal on the ground of violation of the Government Rules as notified on 4.5.2005 would essentially loose all its essence, inasmuch as the petitioners have already been appointed and were working on the date of which the Bihar Chaukidar Cadre Rules, 2006 under Notification No. 9339 dated

25.8.2006 was notified. In this regard he has also relied on Rule 3 of Bihar Chaukidar Cadre Rules, 2006 which had envisaged that those persons who were continuing and discharging the duty of Chaukidar will be deemed to be in the cadre of Chaukidar. In this case no counter affidavit has been filed as yet but then it would transpire that the impugned order itself has been passed pursuant to an earlier direction given by this Court in the writ application filed by the petitioners being C.W.J.C.No. 7993/2009. The said order being relevant for the purpose of this case is quoted hereinbelow: “2. Petitioner was appointed as Chaukidar in the year Patna High Court CWJC No.14261 of 2012 (2) dt.21-01-2013 3

2005. After his appointment he joined the post of Chaukidar in Balia Beloun Police Station within the District of Katihar. He is aggrieved by the order bearing memo no.41 dated 12.1.2009, Annexure 4 whereunder the District Magistrate, Katihar in compliance of the instructions of the State Government contained in letter No. 4655 dated 29.5.2008, Annexure 5/A has asked the Circle Officer, Kadwa to stop payment of salary to the petitioner and petitioner is aggrieved by stoppage of salary and has filed this writ application.

3. Let the petitioner appear before the District Magistrate, Katihar along with a copy of this order as early as possible, in any case within four weeks from today, whereafter the District Magistrate, Katihar should fix a date and after hearing the petitioner pass a reasoned order as to why petitioner having been appointed as Chaukidar could not be paid salary. If the District Magistrate, Katihar is satisfied that payment of salary of the petitioner has been withheld without any good reason then he should ensure payment of salary to the petitioner otherwise the District Magistrate should pass order terminating the services of the petitioner.” The impugned order thereafter has been passed not only after giving opportunity of hearing to the petitioners but the District Collector of Katihar has given his adequate reasons in support of the decision taken for termination of the services of the petitioners, the relevant portion of the impugned order reads as follows: ^^vkosnd ’;kekuan jk; is0 rkj.kh jk; dh fu;qfDr ,eth pkSdhnkj Patna High Court CWJC No.14261 of 2012 (2) dt.21-01-2013 4 dh fu;qfDr ls lacaf/kr x‘g Avkj{khA foHkkx ds ifji= la0 10129 fn0 8-11-91 ds vkyksd es a vuqdEik p;u lfefr dh cSBd esa dh x;h vuq’kalk ds vk/kkj ij dh FkhA ysfdu mDr ifji= ds vk/kkj ij pkSdhnkj@nQknkj ds in ij fu;qfDr@lsok fu;ferdj.k ugha djus dk vkns’k x‘g Avkj{khA foHkkx ds ifji= la0 4060 fnukad 4-5-05 ds }kjk fuxZr fd;k tk pqdk FkkA vr,o foHkkxh; i=kad 4060 fn0 4-5- 05 ds fuxZr gksus ds ckn ,eth pkSdhnkj ds :i esa dh x;h dksbZ Hkh fu;qfDr lsok fu;ferdj.k voS/k gks tkrh gSA mDr vk/kkj ij Jh jk; dh vuqdaik p;u lfefr dh fnukad 30-8-08 dh cSBd esa dh x;h vuq’kalk ds vk/kkj ij dk;kZy; Kkikad 791@lk0 fnukad 3-9-05 ds }kjk dh x;h fu;qfDr voS/k gks tkrh gSA mDr rF; ds izdk’k esa vkrs gh dk;kZy; i=kad 41@lk0 fnukad 12-1-09 ds }kjk Jh jk; ls pkSdhnkj dk dk;Z ugha ysus dk funs’k lacaf/kr inkf/kdkfj;ksa dks ns fn;k x;k vkSj mudk osru vo:n~/k dj fn;k x;kA pwafd Jh jk; dh fu;qfDr voS/k gS vr,o bl fu;qfDr vkns’k dks jn~n fd;k tkrk gS rFkk Jh jk; dks lsok eqDr fd;k tkrk gSA vkosnd Jh lqcks/k dqekj rrek is0 Hkksyk rrek dh fu;qfDr x‘g Avkj{khA foHkkx ds ifji= la[;k 11287 fnukad 20-12-95 ds vkyksd es vuqdEik p;u lfefr dh mDr cSBd esa dh xbZ vuq’kalk ds vk/kkj ij dh xbZ Fkha A mDr ifji= ds }kjk fdlh PkkSdhnkj@nQknkj ds fnukad 01-01-90 ds ckn vodk’k izkIr djus ij muds ukfer AukSfeuhA ;Fkk muds iRuh ij iq= ;k Hkrhtk ;k ukrh dks pkSdhnkj ds in ij dsoy ,d ckj viokn Lo:i ckS.M ysdj fu;qfDRk djus dk izko/kku fd;k x;k FkkA ysfdu mDr ifji= dks foHkkxh; ifji= la0 12094 fnukad 11-11-2004 ds }kjk fujLr dj fn;k x;k FkkA vr,o fnukad 11-11-2004 ds ckn fdlh lsok fuo‘r pkSdhnkj@nQknkj ds LFkku ij dh x;h dksbZ Hkh fu;qfDr voS/k gks tkrh gSA mDr vk/kkj ij Jh rrek dh vuqdEik p;u lfefr dh fnukad 30-8-05 dh cSBd esa dh x;h vuq’kalk ds vk/kkj ij dk;kZy; Kkikad 791@lk0 fnukad 3-9-05 ds }kjk dh x;h fu;qfDr voS/k gks tkrh gSa mDr rF; ds izdk’k esa vkrs gh dk;kZy; i=kad 41@lk0 fnukad 12-1-09 ds }kjk Jh rrek ls pkSdhnkj dk dk;Z ugha ysus dk funs’k lacaf/kr inkf/kdkfj;ksa dks ns fn;k x;k vkSj mudk osru vo:n~/k dj fn;k x;kA pwafd Jh rrek dh fu;qfDr voS/k gS vr,o bl fu;qfDr vkns’k dks jn~n fd;k tkrk gS Patna High Court CWJC No.14261 of 2012 (2) dt.21-01-2013 5 rFkk Jh rrek dks lsokeqDr fd;k tkrk gSA ;g vkns’k rkRdkfyd izHkko ls ykxw gksxkA** Once this Court would find that not only on the earlier occasion this Court did not interfere with the impugned order of termination of the service of the petitioners, this Court will have now no reason to set aside the speaking order passed by the Collector which is based on the clear premises of law that any appointment made contrary to the Rules/ Regulations will be bad. The reliance of the petitioners on the earlier existing guideline dated 20.12.1995, as contained in Annexure 8, is wholly misconceived, inasmuch as the same came to be overruled by the State Government while issuing its circular No. 4060 dated

4.5.2005. Obviously after 4.5.2005 no one could have been appointed on the post of Chaukidar in terms of the earlier decision dated 20.12.1995. This Court, therefore, does not find any error in the order removing the petitioners from the post of Chaukidar and to that extent Annexure 1, the impugned order, must be affirmed. The next submission of the learned counsel for the petitioners, however, would merit consideration, inasmuch as the petitioners and other working as Chaukidar prior to enforcement of the Cadre Rules even if they were removed from service had a right to be considered against the existing vacancies. Counsel for the petitioners in this regard has drawn attention to paragraph 9 of the writ application which reads as follows: Patna High Court CWJC No.14261 of 2012 (2) dt.21-01-2013 6 “That in the similar matters of appointment of Choukidar in the District of Madhepura selection was made on the basis of open advertisement being aggrieved the family members of earth while Choukidar/ Dafadar, filed C.W.J.C.No. 7374/95, contending that they ought to have been appointed in view of circular dated 20.12.05. The matter leveled from this Hon’ble Supreme Court of India and Hon’ble Supreme Court by order dated 19.4.2010 passed in Civil Appeal No. 3457/2010 disposed of the appeal with a direction to the District Administration Saharsa to initiate the process of selection of Choukidar as per Bihar Choukidar Rule, 2006. It is humbly submitted that in the District of Katihar about 300 post of Choukidar is still vacant but the District Magistrate has not taken any steps to initiate the selection process by inviting applications from the illegible candidates by giving age relaxation to the legal heirs/ nominees of east while Choukidar.” (underlining by emphasis) The underlined portion of paragraph 9 will itself go to show that there are 300 vacancies existing in the district of Katihar which now had to be filled up in terms of Bihar Chaukidar Cadre Rules, 2006 by following the provisions of Articles 14 and 16 of the Constitution of India. This aspect of the matter in fact could have been decided by this Court, had the respondents been careful in filing their counter affidavit. In absence of the counter affidavit this Court can only direct the District Collector of Katihar to ensure that following the principle laid down by the Apex Court as Patna High Court CWJC No.14261 of 2012 (2) dt.21-01-2013 7 referred to in paragraph 9 of the writ application and Annexure 9 steps for filling up the vacant post of Chaukidar must be initiated as early as possible preferably within a period of six months from the date of receipt/ production of a copy of this order. If, however, the District Collector would find any difficulty in initiating such steps for filling up of the post of Chaukidar, either on account of some subsequent Government direction or any order of this Court or the Apex Court, he would briefly indicate his reasons for not doing so, when the petitioners would approach him by filing a representation for this purpose. This exercise, however, must be also completed within the same time limit of six months from the date of receipt of the representation by the petitioners confined to filling up of the vacant post of Chaukidar in terms of the Cadre Rules, 2006. With the aforementioned observation and direction, this application is disposed of. surendra/- (Mihir Kumar Jha, J)