Kishori Mahto v. Patna Municipal Corporation & Ors

: Mr. Devendra Prasad Sinha, ----- For the Corporation For respondent no.15 Senior Advocate. Mr. Arun Kumar, Advocate. : Mr. Binay Kirti Singh, Advocate. : Dr. Harendra Nath Ojha, Advocate. ----- - 2 -

01.07.2009 Heard learned counsel for the petitioner, learned counsel for the respondents--Corporation and its authorities and learned counsel for respondent no.15, who was petitioner in the writ petition. In spite of notices, no one else appeared.

2. This petition has been filed on behalf of the review petitioner, who was respondent no.12 in the writ case, for review of order dated 20.11.2003 passed by a Bench of this court allowing C.W.J.C.No.4195 of 2002 filed by respondent no.15 of this review petition.

3. By the said order, which is sought to be reviewed, a Bench of this court held that so far as the combined list of Sanitary Inspectors and Vaccinators/Inoculators is concerned, it cannot be allowed to stand in the light of yet another circular issued by the State Government through its Personnel and Administrative Reforms Department contained in Circular no.3/R 1-106/72-P-15784 issued on 26.08.1972, in paragraph 3(iv) (g) of which it was mentioned that if there is no settlement of seniority or there are no principles governing the fixation of the seniority then any person who is drawing more salary in his basic cadre would be deemed to be senior to any person who is drawing less basic salary in his substantive cadre. In the said order it was also held that the writ petitioner, who was Sanitary Inspector, was drawing Rs.950.00 in his basic cadre while the Vaccinators/ Inoculators, including the review petitioner, were drawing Rs.825 in their basic cadre and hence the writ petitioner (Sanitary Inspector) would be senior - 3 - Vaccinators/Inoculators, who were private respondents in the writ petition.

4. The said order of this court was challenged by the review petitioner before a Bench of this court vide L.P.A. No.05 of 2004 which was disposed of on 30.07.2004 holding that grievance of the appellant was that he and other persons were respondents in the writ petition, but without hearing them the order had been passed by the learned Single Judge and some of the affected parties were not even noticed. It was further held that in such a case, proper course for the appellant will be either to file review application or file a fresh writ petition with regard to his grievance.

5. In the said circumstances, the instant review petition has been filed by the said appellant on two grounds. Firstly that the persons, who were affected by the said order under review, were not even noticed, although they were parties to the writ petition and secondly that the learned Single Judge had wrongly assumed that Sanitary Supervisors were drawing salary higher Vaccinators/ Inoculators and hence the Sanitary Supervisors would be senior to Vaccinators/ Inoculators.

6. So far the first issue is concerned, it is quite apparent that the writ petitioner was a Sanitary Supervisor, whereas the private respondents including the review petitioner were Inoculators and hence when the question of seniority between the Sanitary Supervisors and Vaccinators/ Inoculators were going to be decided it was necessary for the ends of justice and also in view of the - 4 - principles of natural justice that the said respondents should have been noticed and heard. No doubt, the review petitioner, who was one of the respondents in the writ petition, had appeared through vakalatnama in the said writ petition, but that was without any notice sent to him, whereas other private respondents could not appear due to absence of any notice and furthermore, even the review petitioner did not contest the writ petition as according to him he was awaiting his turn, but the learned Single Judge observed that the nature of the order which he was going to pass did not require any notice to the private respondents. In the said circumstances, the said order was passed deciding the writ petition without giving any opportunity of being heard to the private respondents who were clearly affected.

7. So far the second question is concerned, learned counsel for the petitioner submits that Vaccinators and Inoculators are completely different posts not connected with each other and the private respondents were all Inoculators. On the other hand, learned counsel for the Corporation and writ petitioner vehemently opposes the said contentions claiming that both the posts are always being dealt with together. However, learned counsel for the review petitioner has stated that this court while deciding a batch of cases vide order dated 26.08.1994 (Annexure-8) had specifically held at page-7 thereof that the post of Inoculator in the pay scale of Rs.975/- to Rs.1540/- is not inferior to the post of Sanitary Supervisor in the pay scale of Rs.800/- to Rs.1150/-. Hence, by the order under review, learned Single Judge of this court had wrongly - 5 - held that Sanitary Supervisors would be senior to the Vaccinators/ Inoculators. All these matters could have been fully and finally settled only if all the persons concerned who were respondents in the writ petition would have been given an opportunity of being heard, but unfortunately that could not happen resulting in the said order.

8. In the aforesaid facts and circumstances, this petition is allowed. The aforesaid order of this court dated 20.11.2003 passed in CWJC No. 4195 of 2002 is hereby reviewed and recalled. Let this writ petition be placed under the heading ‘admission’ before an appropriate Bench after due permission from Hon’ble the Chief Justice. Sunil (S. N. Hussain, J.)