Allowed

Deo Prasad v. the State of Bihar and Ors.

Patna HC19 Aug 2011CWJC/17584/2009

Case brief

AI extract

What is this about?

Writ petitions challenging arbitrary ad-hoc absorption of retrenched employees against regular vacancies. Court held uniform policy mandated permanent absorption for all, finding ad-hoc absorption arbitrary and violative of Article 14. Allowed petitions and directed permanent absorption within three months.

What did the court decide?

Directions issued for permanent absorption within three months and grant of A.C.P.

Deo Prasad Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17137 of 2009

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Ram Naresh Ishwar S/O Late Bihari Lal Ishwar, R/O VillSadipur, Ghat, P.S- Khanpur, Distt- Samastipur

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Versus 1. The State Of Bihar Through The Secretary, Main Secretariat, Patna

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The Principal Secretary, Human Resources Development Department, Government Of Bihar, Vikas Bhawan, Bailey Road, Patna

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The Director, Mass Education, Human Resoures Dvelopment Department, Government Of Bihar, Bailey Road, Patna

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Principal Secretary, Personnel And Administrative Reforms

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Department, Main Secretariat, Patna

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The Principal Secretary, Social Welfare Department, Government Of Bihar, Main Secretariat, Patna

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The Director, Integrated Child Development Service Social Welfare Department, Government Of Bihar, Indira Bhawan, Ram Charitera Singh Path, Bailey Road, Patna

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with

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CWJC No.17494 of 2009

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Shabir Ali Ansari S/O Late Serajul Haque Ansari R/O Vill.Rahmannagar Malpurwa, P.S.- Bagaha, Distt.- West Champaran Versus

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The State Of Bihar Through The Chief Secretary Main

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Secretariat, Patna

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The Principal Secretary Human Resources Development Department, Government Of Bihar, Vikas Bhawan, Bailey Road, Patna

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The Director, Mass Education Human Resources Development Department, Government Of Bihar, Bailey Road, Patna

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Principal Secretary Personnel And Administrative Reforms

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Department, Main Secretariat, Patna

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The Principal Secretary Social Welfare Department, Government Of Bihar, Main Secretariat, Patna

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The Director, Integrated Child Development Service Social Welfare Department Government Of Bihar, Indira Bhawan, Ram Charitera Singh Path, Bailey Road, Patna

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with

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CWJC No.17493 of 2009

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Arun Kumar Singh S/O Shri Jogendra Prasad Singh R/O Vill.Chitruli, P.S.- Mahua, Distt.- Vaishali

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Versus

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The State Of Bihar Through The Chief Secretary Main Secretariat, Patna

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The Principal Secretary Human Resources Development Department, Government Of Bihar, Vikas Bhawan, Bailey Road, Patna

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The Director, Mass Education Human Resources Development Department, Government Of Bihar, Bailey Road, Patna

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Principal Secretary Personnel And Administrative Reforms Department, Main Secretariat, Patna

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The Principal Secretary Social Welfare Department, Government Of Bihar, Main Secretariat, Patna

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The Director, Integrated Child Development Service Social Welfare Department Government Of Bihar, Indira Bhawan, Ram Charitera Singh Path, Bailey Road, Patna

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with

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CWJC No.17584 of 2009

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Deo Prasad S/O Sheo Mandal Prasad R/O Vill Narayanpur, P.S.Bikram,Distt-Patna

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Versus

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The State Of Bihar Through The Chief Secretary Main Secretariat, Patna

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The Principal Secretary, Human Resources Development Department Government Of Bihar , Vikas Bhawan, Bailey Road, Patna

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The Director , Mass Education , Human Resources Development Department Government Of Bihar,Bailey Road, Patna 4. Principal Secretary, Personnel And Administrative Reforms Department Main Secretariat, Patna

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The Principal Secretary, Social Welfare Department Government Of Bihar, Main Secretariat, Patna

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The Director , Integrated Child Development Service Social Welfare Department Government Of Bihar, Indira Bhawan,Ram Charitera Singh Path, Bailey Road, Patna

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----------For the Petitioners:Mr. Kishore Kr. Thakur, Adv. For the State:Mr. Mrigndra Kumar, Adv. Mr. Maheshwar Dhar Dwivedi, Adv. Mr. Sourendra Pandey, Adv.

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Mr. Bibhakar Tiwary, Adv.

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19.08.2011 Heard learned counsel for the petitioners and

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the State.

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The petitioners are aggrieved by the order dated 29.10.2008 informing them that there was no likelihood in near future for closure of the Integrated Child Development Scheme and therefore there was no occasion to consider their request for re-absorption.

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The petitioners are stated to be working in Ad hoc

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capacity as Clerk-cum-Typist in the office of the Child Development Project Office under the Social Welfare Department.

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Learned counsel submits that initially the petitioners were appointed on Class-III posts in the Directorate of Education in the year 1985. Consequent to the termination of the Adult Education Project on 28.2.1993, their services were terminated. On challenge made before this Court on 1.9.1993 the termination order was set aside and directions were issued to absorb in the non formal wing of Directorate of Adult Education. The petitioners were again terminated on 12.9.2001 on the ground that the non formal Education Project was closing down and the Central Government which was funding it was not willing to do so further. The petitioners again questioned their termination in a writ application.

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On 25.3.2005 the respondents took a policy decision to absorb persons like them on vacant posts in different departments/regional offices. On 4.7.2006, the State Government further directed that they should be absorbed with pay protection and given the benefit of the old pension scheme by making provident fund deductions. While some of such persons have been absorbed against regular vacancies, others like the

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petitioners have been absorbed Ad hoc against regular vacancies as evident from the order dated 20.7.2006 of their absorption. This amounts to hostile discrimination amongst one class of persons who all constitute retrenched employees of the earlier scheme with regard to all of whom a decision of absorption has been taken. The decision has to be implemented uniformly. The petitioners have no preferences in appointment.

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Counsel for the State relies upon an order passed in C.W.J.C. No. 10330 of 2003 and submits that the petitioners may be permitted to represent in like manner.

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A counter affidavit is stated to have been filed in C.W.J.C. No. 17494 of 2009 only. The contention of the respondents is that others may have been absorbed against regular vacancies substantively according to the sanctioned vacancies available in that department. The availability of vacancies shall be a relevant fact for purposes of absorption.

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Counsel for the petitioner submits that the representation of that petitioner has been rejected on 20.11.2009 vide Annexure-A to the counter affidavit of the respondents presently in C.W.J.C. No. 17494 of 2009 on similar grounds as the impugned order.

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The Court holds that all those who were terminated and came to be absorbed under a policy decision form one class. There can be no sub classification between them for purposes of absorption who were all under the policy dated 23.6.2005 to be absorbed against regular sanctioned vacancies in different departments/regional offices. That the policy decision was clear for a permanent absorption is further confirmed by the subsequent decision dated 4.7.2006 to grant pay protection and count past service as pensionable.

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All those who were retrenched in like manner form a class. The policy for absorption shall apply uniformly. There had to be some classification on basis of which the respondents took a decision to grant permanent absorption to some of them and not to the others. There had to be a criteria having nexus to the object for differentiation. No such material has been placed by the respondents. The action of the respondents therefore appear patently arbitrary, violating Article 14 of the Constitution of India.

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The order dated 20.7.2006 absorbing the petitioners ad- hoc itself states that they were being so absorbed against regular vacancies. If the vacancies were regular and the policy decision was for permanent

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absorption, the Court finds it difficult to appreciate an Ad hoc absorption.

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It has already been noticed at this stage that they have no preferences. Directions are therefore issued for the permanent absorption of the petitioners in accordance with the policy decision of the respondents themselves in accordance with law.

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The petitioners have brought on record today by a way of a supplementary affidavit an order dated 9.2.2010 that such persons absorbed on ad hoc basis shall not be entitled to A.C.P.

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Let the respondents now consider the petitioners for regular absorption as also for grant of A.C.P. in light of the present discussion and their own decision dated 4.7.2006 in accordance with law within a maximum period of three months from the date of receipt/production of a copy of this order.

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The writ applications stand allowed.

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P. Kumar

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( Navin Sinha, J.)

Deo Prasad v. the State of Bihar and Ors.

Case brief

What is this about?

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Deo Prasad v. the State of Bihar and Ors.

Case brief

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