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Judgment
Heard learned counsel for the petitioner and learned
counsel for the respondents.
The present writ petition has been filed for
quashing of the proceedings/recommendations dated 06.03.2010
(Annexure-11) held by the District Level Panel Formation-cum-
Appointment Committee with respect to the recommendations made
for the appointment of 6 (six) candidates in the Class-IV category at
the Rural Works Department, Works Division, Rosera, District-
Samastipur; and to consider the candidature of the petitioner whose
name has been excluded by the Respondent No. 3 without assigning
any reason.
The short facts of the case according to the petitioner
are that on 01.05.1988, he was appointed as a Godown Chowkidar on
daily wage basis at Rural Engineering Organisation Camp-Rosera,
District- Samastipur. As he had skill/knowledge of Civil Drawing, he
was asked to perform the duty of Tracer. The petitioner worked for the
period 01.05.1988 to 30.11.1993 but all of a sudden from 01.12.1993,
he was disengaged/removed from service. The petitioner approached
this Court in C.W.J.C. No. 11414 of 1994 and pursuant to the orders
passed therein, he filed representations before the respondents for
appointment on the post of Tracer. Owing to inaction on the part of the
respondents, the petitioner once again moved this Court in C.W.J.C. No.
7200 of 2000 which was disposed of with an observation granting
liberty to the petitioner to move this Court for initiation of contempt
proceedings in case the petitioner filed application pursuant to
advertisement and the order of this Court was not complied with. The
petitioner accordingly once again represented before the authorities
but however, the respondent no. 5 informed the petitioner by his letter
dated 25.09.2000 that he stood removed from service in view of
Resolution dated 18.06.1993. Thereafter, an advertisement in January,
2006 was published by the District Magistrate, Sitamarhi, pursuant to
which the petitioner applied on 28.03.2006 through Speed Post and
submitted all the relevant documents along with his application as
required in terms of letter dated 16.06.2006 issued by the Under
Secretary, Rural Development Department (Rural Engineering
Organisation), Patna calling upon all the Departments of State
Government to prepare a panel of retrenched employees having
worked for a minimum period of 240 days prior to 11.12.1990 for
consideration of their cases in accordance with Resolution dated
16.03.2006 of the Personnel and Administrative Department, Patna.
The Superintending Engineer, Rural Works Department, Work Circle,
Darbhanga (respondent no. 4) asked all the Executive Engineers
(respondent no. 5) including the Rural Engineering Organisation, Rural
Works Department, Work Division, Rosera, District-Samastipur to
furnish the details of such daily wages employees, which were duly
prepared and sent to the Superintending Engineer, Rural Works
Department (respondent no. 4) by letter dated 25.07.2007 (Annexure-
6) according to which the petitioner stood at Serial No. 8 showing him to have worked for a total number of 1716 days. The petitioner also
filed a representation before the Committee consisting of three
Secretaries constituted for adjudication of claims of daily wage
employees. The representation was instituted as Miscellaneous Case
No. 34 of 2007 which however came to be rejected by the Secretary,
Personnel and Administrative Reforms Department (respondent no. 2).
By letter dated 12.11.2009, the Executive Engineer, R.E.O., Work
Division, Rosera (respondent no. 5) informed the District Magistrate,
Samastipur that at the Divisional Level there were 19 posts of Class-IV
of which 6 (six) were vacant (Annexure-10). The District Magistrate
published a panel of eligible candidates for appointment in different
Departments of the Government but however the petitioner''s name did
not find place in the said panel. The petitioner filed his objection but
however the final list was published on 23.02.2010 by the District
Magistrate, Samastipur and interview held the very next day on
06.03.2010. A meeting of the District Level Panel Formation-cum-
Appointment Committee under the Chairmanship of the District
Magistrate, Samastipur was held and several candidates were
recommended for appointment including 6 persons (respondent nos. 6
to 11) for appointment in the office of the Executive Engineer, Rosera
(respondent no. 5).
Mr. Rajendra Narayan, learned Senior counsel
appearing on behalf of the petitioner, submits that the respondents
have acted in a most arbitrary manner in not considering the case of
the petitioner for appointment to Class-IV post despite the orders of
this Court. It is stated that the petitioner had duly applied in pursuance
of the advertisement published in January, 2006 but however his name
had been kept out of the panel prepared and his case had not been
considered. The respondents have acted contrary to Resolution dated
16.03.2006 (Annexure-3) according to which retrenched employees of
any Department had to be adjusted against the vacancy only in that
Department from where they have been retrenched, whereas the
respondent nos. 6 to 11 who had been appointed. The persons who had
been recommended for appointment in the office of the Superintending
Engineer, Darbhanga had never worked in the Department on daily
wage basis. The petitioner had admittedly worked for 1716 days i.e.
more than 240 days on daily wage basis prior to 11.12.1990 as evident
from the letter dated 25.07.2007 of the Executive Engineer, Rosera
(Annexure-5) and hence he was eligible to be considered for
appointment in terms of the Government Resolution. It is further
submitted that the appointment of the six persons (respondent nos. 6
to 11) was contrary to the reservation policy of the State Government
as they are all persons belonging to the BC-II category as evident from
the minutes of the meeting dated 06.03.2010 of the District Level Panel
Formation-cum-Appointment Committee (Annexure-11), whereas
according to the letter no. 1624 dated 25.06.2012 (Annexure-19), the reservation roster approved by the Commissioner showed that
appointments of six persons had to be made against the roster points
217 to 222 namely EBC-1, BC-1, BC Women-1 and Open Category-3. It
is further submitted that the relevant Rules of the State Government
required roster clearance prior to appointment but in the present case,
the appointments have been made in anticipation of roster clearance as
evident from Note-4 of the appointment letters of the said six persons
(Annexures 24 and 25).
Mr. Kumar Alok appearing on behalf of the respondents
vehemently opposes the writ petition and has advanced detailed
arguments on the various issues raised by the petitioner. He has sought
to defend the appointment of the 6 persons ( respondent nos. 6 to 11),
submitting that pursuant to the advertisement for appointment of all
eligible persons, the District Magistrate accordingly obtained details
with regard to available posts in the Rural Works Department, Works
Division, Rosera and was informed about the vacancy of 6 posts out of
19 sanctioned posts. A panel of 224 persons was prepared which did
not include the name of the petitioner. As regards the roster clearance,
it is submitted that the appointments have been made in terms of letter
no. 189 dated 24.02.2010 issued from the office of the Commissioner
Darbhanga Division, Darbhanga which required filling up of the
vacancies with reference to the approved roster of the year 2007 which
had not been filled up. The process of selection at the District Level
was required to be carried out by the Selection Committee headed by
the District Magistrate as required in terms of Government''s letter
dated 03.12.1980 (Annexure-C) as mentioned in the advertisement,
and had accordingly the exercise for selection had been undertaken by
the District Magistrate, and thereafter the appointments of the six
persons (Respondent Nos. 6 to 11) had been made by the
Superintending Engineer, Darbhanga as appointing authority.
Despite issuance of notices to the respondent nos. 6 to
11 by order dated 27.04.2017 which were validly served, none has
entered appearance nor are they represented when the matter is called
today.
It has been claimed by the petitioner that even though
he had worked for more than requisite number of days in terms of the
Government resolution and his name appeared at serial no. 8 of the
letter dated 25.07.2007 issued by the Executive Engineer, Rosera
(Annexure-6) informing the Superintending Engineer, Darbhanga with
regard to the vacant posts and the list of persons who had worked on
daily wages, he had not been considered for appointment. It has
further been submitted that the petitioner had applied on 28.03.2006
pursuant to the advertisement, but he has been ignored during
preparation of the panel. As such, by order dated 08.09.2017, this
Court required the respondents to take a clear stand in the above
regards whether the petitioner had been considered for appointment
on the basis of his past service as well as with regard to his claim of
having applied on 28.03.2006 pursuant to the advertisement and the
reason why the petitioner was not empanelled in the panel of 224
candidates which had been prepared. A clarification was also sought
with regard to the letter dated 25.06.2012 (Annexure-19) and whether
the details of the roster points therein related to Darbhanga Circle and
not to the office of the Executive Engineer, Rosera.
Pursuant to the aforesaid order dated 08.09.2017, a
second supplementary counter affidavit has been filed in which it has
been admitted that pursuant to the advertisement, the petitioner had
applied for inclusion in the panel vide application serial number 5290.
Apart from such admission, however, no further clarification has been
forthcoming from the respondents.
In the above facts and circumstances of the case, it is
therefore abundantly clear that the respondents are unable to explain
the reasons why the petitioner has been ignored and has been
excluded from the zone of consideration despite having applied
pursuant to the advertisement, moreso in the backdrop of the order
dated 08.08.2000 passed by this Court in C.W.J.C. No. 7200 of 2000
which contemplated that the petitioner had to be considered if he
applied pursuant to an advertisement. The respondents have not
offered any details, clarification or basis for preparation of the panel of
224 persons. This Court has thus no hesitation in holding that the
respondents have acted arbitrarily and in a manner lacking in
transparency in keeping the petitioner out of the zone of consideration.
This Court is therefore of the view that the writ petition must succeed
on this score alone and there would be no need to adjudicate upon the
rival submissions of the parties on the other aspects of the matter.
The respondents are accordingly directed to consider
the case of the petitioner on the basis of his application made pursuant
to the advertisement published in January, 2006. In case he is
otherwise found eligible and fit for appointment, he shall be so
appointed to a Class-IV post in the office of the Executive Engineer,
Rosera, Rural Works Department, Works Division, Rosera and for this
purpose the person having the least marks out of the six persons who
had been appointed against the six vacant posts (respondent nos. 6 to
11) shall make way to accommodate the appointment of the petitioner.
Consequently, the impugned office order bearing Memo No. 1022 dated
28.03.2012 (Annexure-24) or office order bearing Memo No. 1069
dated 31.03.2012 (Annexure-25) only to the extent that it is relatable
to the outgoing appointee as stated above, shall stand treated as
quashed. The writ petition stands allowed.