Writ petition seeking reinstatement of two B.C.J. technicians terminated in 1993. The State relied on the Supreme Court's Ashwani Kumar selection scheme and argued the petitioners neither participated in the fresh recruitment nor challenged their termination timely. The High Court dismissed the writ petition for delay and laches.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12483 of 2015
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... ... Petitioner/s
Versus
... ... Respondent/s
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Appearance : For the Petitioner/s : Mr. Vijay Kumar Sinha, Advocate For the Respondent/s : Mr. Manoj Kumar Sinha, AC to GA-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL JUDGMENT Date : 18-03-2024
Heard learned counsel for the petitioners and learned
counsel appearing on behalf of the State.
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till their termination and petitioners were terminated from service along with many others by a common order of Helath Department, Bihar, Patna vide letter no. 528 (11), dated 30.04.1993 issued under the signature of Commissioner-cum-Secretary, Health Department, Government of Bihar, Patna.
SCC 1 , referring to paragraph-19 which is as follows:
“19. However there is one human aspect which calls for our attention on the facts of the present cases. These 6000 employees got employed by Dr. Mallick over at least a decade. Many of them served for number of years and got confirmed. They would naturally have their families to support. For no fault of theirs they found themselves stranded in life midstream. Many might have got over aged. As Dr. Dhavan pointed out, many of them also got trained under the second phase of the Programme, as he would like to style it, pursuant to the Government Order dated 31.1.1987 referred to by us earlier. Under these circumstances justice would require that some effort to salvage their situation if possible may be made when the State undertakes a fresh exercise to fill up the sanctioned posts under the Tuberculosis Eradication Programme which has come to stay. We are informed that tuberculosis is still not eradicated in the State of Bihar and the Programme is to last for couple of more years and may be it may assume a semipermanent status. It was also not disputed that there are 2250 sanctioned posts or it may be that some more sanctioned posts may see the light of the day in near future. Shri Singh learned counsel for the respondent-State informed us that the State proposes to start on a clean slate and after following due procedure of recruitment would certainly recruit Class III and Class IV employees on the sanctioned vacancies and posts which
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will have to be filled up for making the Tuberculosis Eradication Scheme effective and fully operative. When that is the need of the day, it would be appropriate to direct the State to undertake that exercise at the earliest and while doing so after following the due procedure of recruitment and the rules governing the same, given an opportunity to these 6000 unfortunate creatures of Dr. Mallick to compete for the said posts in the future recruitment that may be undertaken by the State and in the process because of the experience which they have gathered in their past service under the Tuberculosis Programme and the training which they might have received pursuant to the Government Order dated 31.1.1987, due weight age also be given to them while considering their eligibility for being recruited in service as and when such future exercise is undertaken. Consequently we deem it fit to issue the following directions to the respondent State of Bihar in this connection :
1. Respondent-State of Bihar may start at the earliest a fresh exercise for recruiting Class III and Class IV employees in the Tuberculosis Eradication Programme undertaken by the State as a part of 20-Point Programme on the available 2250 vacancies or even more vacancies, as the case may be, preferably within three months from the receipt of a copy of this order.
2. Towards the said exercise the State will publish a notice in all the newspapers having circulation in the State inviting applications for direct recruitment to Class III and Class IV posts for filling up these vacancies in the said Programme.
3. Similarly names may also be called for from the concerned Employment Exchange for such recruitment.
4. If no statutory body composed of high-ranked officials for recruitment to Class III and Class IV employees is in vogue, the State is directed to constitute a committee consisting of three members, viz., (a) a member of the Public Service Commission; (b) a senior IAS officer, i.e., the Additional or Joint Secretary of the Health Department; and (c) a senior officer, i.e., the Director or Additional Director of Health Services, to select the candidates. The Additional or Joint Secretary of Health Department shall be the Chairman of the Committee.
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5. The respondent-State will constitute such a committee preferably within three months of the receipt of this order.
6. It would be open to all the appellants or those appointed by Dr. Mallick who might not have challenged their termination orders before any competent court up till now, to apply for selection to the concerned Class III and Class IV posts. The committee would in their cases as first step, verify and satisfy itself of the credentials of such candidates whether they were appointed by Dr. Mallick and had worked a least for three years continuously. The committee would also satisfy itself that such candidate or candidates honestly and meritoriously discharged their duties as Class III and Class IV appointees, at least for the said period.
7. The committee may fix total number of marks to be obtained by the candidates for being treated to have passed the selection test. Any relaxation in the minimum eligibility marks to be obtained by the Scheduled Casts, Scheduled Tribes and Other Backward Classes candidates as found necessary may also be decided by the committee. The committee if satisfied about the credentials and other particulars of the appellants or those appointed by Dr. Mallick as mentioned in paragraph (6) above, may allot additional marks to them for each of the three years and more for which they might have worked, at the rate of 2 marks for each completed year of continuous working, upto the maximum of 6 marks, for each candidate. Candidates appointed by Dr. Mallick who are found to have undertaken training pursuant to the Government direction dated 31.1.1987 may be awarded 2 additional marks for the training so received. Those 2 marks will be in addition to the 6 marks which are to be awarded on completion of meritorious and honest service by the concerned employees as mentioned above.
8. If the concerned candidates who were earlier appointed by Dr. Mallick are found by the committee to be otherwise eligible for being appointed to Class III and Class IV posts as per the relevant rules and regulations and if on the basis of the marks allotted to them as aforesaid they become eligible to be appointed besides other competing candidates, then if they are found to have become age barred the condition of age
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for recruitment of such candidates should be relaxed appropriately so as to entitle such candidates to be considered for selection.
9. The State Government shall arrange sittings of the Selection Committee preferably within two months from the last date prescribed for submitting the applications and for completion of the preliminary scrutiny of such applications. The committee shall select all candidates on merits following the prescribed procedure in the appropriate circulars and rules and shall also follow the rules of reservation as in vogue and prepare the merit list and should submit it to the Government. While doing so the eligible candidates who were earlier appointed by Dr. Mallick and who received the marks for their past meritorious service and training as aforesaid will be considered for selection qua the other candidates in the light of the weight age of the marks as aforesaid and in that light the committee will select all the candidates on merits and will prepare the select list of candidates found fit to be appointed to the concerned posts.
10. The committee will complete the process of selection preferably within three months from the date of its sittings for selection.
11. An appropriate authority or the government, as the case may be, will appoint preferably within three months from the date of the receipt of the merit list from the committee, the selected candidates as per roster and the merit list, on available vacancies, after due identification of the credentials of the candidates concerned as per its legally permissible procedure.
12. In the event of selection and appointment of erstwhile daily-rated employee or employees, who were inducted by Dr. Mallick, the entire proved period during which they had worked as daily wager and/or confirmed employees will be computed for the purpose of pensionary and other retrial benefits but they will not be entitled to claim any inter se higher seniority in the selection made by the committee or for any promotion on the basis of their previous service.”
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and Kashmir Vs. R.K. Zalpuri and Others, reported in AIR 2016 Supreme Court 3006 , referring to the paragraph-20 which is as follows :
“20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Others, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus :-
“The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether :
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolves;
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(Rajesh Kumar Verma, J)
Ibrar//-
| AFR/NAFR | NAFR |
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| CAV DATE | N.A. |
| Uploading Date | 21.03.2024 |
| Transmission Date | N.A. |
2 issues framed by the court
Should terminated B.C.J. technicians appointed by Dr. Mallick be reinstated when other similarly placed employees were reinstated?
Is a writ petition filed 22 years after termination liable to dismissal for delay and laches?
Colour shows how this judgement treated each authority
Ashwani Kumar and Others Vs. State of Bihar and OthersReferred¶5
(1997) 2 SCC 1 · Who else cites this
State of Jammu and Kashmir Vs. R.K. Zalpuri and OthersApplied¶8
AIR 2016 Supreme Court 3006 · Who else cites this
Ajay Kumar Pandey
Pankaj Kumar
The State of Bihar, through the Principal Secretary, Health Department
The Director in Chief, Health Services
The Deputy Director, T.B.D.C. Health Services
Ramautar Prasad
Rajesh Kumar Verma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
