PETITIONER:
STATE OF BIHAR & ORS.
Vs.
RESPONDENT:
BIHAR RAJYA SAHKARITA PRABANDHAK SEVA SANGH, PATNA, & ORS.
DATE OF JUDGMENT: 20/08/1998
BENCH:
K. VENKATASWAMI, S. RAJENDRA BABU
ACT
HEADNOTE
JUDGMENT
JUDGMENTK. Venkataswami, J.
Aggrieved by the direction given by the High Court in CWJC No. 2312 of 1991 directing the State Government to absorb Co-operative Managers against the equivalent posts in any other departments of the State Government in terms of the State Government’s decision dated 6.9.86, this appeal by special leave has been preferred.
This court, after hearing learned senior counsel appearing for the appellants for some time, passed an order on 4.3.98 for the consideration of the Government in the light of the human problem that arose out of the judgment under appeal, which reads as follows :-
"I.A. NO. 5 for intervention
is allowed.
We have heard Mr. S.B. Sanyal,
learned senior counsel for the
appellants, for some time.
Having regard to the fact that
the respondents in whose favour the
judgment under appeal has been
given directing the absorption of
persons appointed in the year 1973
and also having regard to the fact
that some persons similarly
situated having been absorbed
pursuant to orders of Court, we
think that the Government can
consider a via media in the
following lines :-
(1) Those who are in actual
service as paid Managers will be
continued till they are absorbed in
accordance with law as and when
vacancies arise in various
Government Departments and wherever
necessary relaxing the age to the
extent possible. Wherever the age
relaxation is not possible, for
example, if the candidate is above
50, such candidates will be allowed
to continue as Paid Managers till
they reach the age of
superannuation on the same terms
and conditions on which they are
now continuing.
(2) Those who appeared in the
examination but could not succeed
or could not get selected, they
will also be continued as Paid
Managers on the same terms and
conditions and such candidates can
also be permitted to sit for the
subsequent examinations.
The Statement Government will
also produce the recommendation, in
particular, the list of names sent
for absorption in various
departments which is referred t in
the earlier Division Bench judgment
in paragraph 38.
To consider the suggestion and
comply with the direction, learned
counsel wants some time to get
instructions.
List on 22.4.1998 as part-
heard."
Mr. Sanyal, learned senior counsel appearing for the appellants, informed the Court on the next date of hearing that the Government have accepted the suggestions given by this Court in its order dated 4.3.98 and accepting the said suggestions, an additional affidavit was also filed on 17.4.98. In the additional affidavit, it is stated as follows :-
"1. That I am working as Deputy
Registrar in the Department of Co-
operative, Government f Bihar,
Patna, and I am dealing the above
mentioned case in my official
capacity and as such I am well
acquainted with the facts and
circumstances of the case. I have
been authorised by the Secretary,
Department of Co-operative,
Government of Bihar, to swear an
affidavit on behalf of the State.
2. That this affidavit is filed in
compliance with the Order dated
4.3.1998, the Hon’ble Supreme Curt
desiring via media to resolve the
differences.
3. That irrespective of the change
in policy decision with the
Government dated 17.7.1991 as per
letter of the Deputy Secretary to
the Government, Deptt. of Personnel
and Administrative Reforms, to the
Secretary, Co-operative Department
(page - 86 f the S.L.P. paper book)
the paid managers of the Society
being not a government servant
their direct appointment as
Government employees by excluding
the eligible candidates of the said
appointment, is not possible in
view of Article s 14 and 16 of the
Constitution and statutory rules
and regulations relating to
recruitment in the Government
employment.
4. That this Hon’ble Curt taking
humane approach desired :
a) the paid managers will be
continued till their absorption in
accordance with the law as wans
when vacancies arise in various
Government departments by relaxing
the age to the extent possible.
b) wherever the age relaxation is
not possible they will continue as
paid managers till the age of
superannuation on same terms and
conditions on which they are now
continuing.
c) the paid managers who filed to
pass the examination of recruitment
as required to be held by Public
Service Commission they will be
given opportunity to sit for
subsequent examination and till
they pass the examination they will
continue as paid managers on same
terms and conditions.
5. That the State Government has
considered the desire of this
Hon’ble Court’s order dated
4.3.1998 and is agreeable to
resolve the dispute as suggested by
the Court.
6. That the State Government is
prepared to relax the age for
appearing in General Competitive
Examination conducted by Bihar
Public Service Commission for
filling up the vacancies of Class-
III post upto the age of 50 years.
7. They will be able to avail three
such examination to make them
eligible for appointment to make
them eligible for appointment. This
decision has been communicated by
the Personnel and Administrative
Reforms Department who are incharge
of the recruitment to the
Government employment to Bihar
Public Service Commission by letter
no. 3918 dated 11.4.1998. That the
letter no. 3918 dated 11.4.1998 is
annexed herewith and marked as
Annexure -A to this Affidavit.
8. That the paid managers, who do
not qualify for recruitment in
Government Employment in accordance
with law their service as paid
managers, will continue on same
terms and conditions as is now
prevailing, the same will be the
fate of the paid managers who
failed in all three examination
referred above.
9. That the recommendation referred
to in the paragraph 38 of the
Division Bench Judgment finds place
at page 83 of the S.L.P. paper
book. The alleged decision of the
Chief Minister referred to in this
letter dated 6.9.1986 (page 83 of
the S.L.P. paper book) is in
reality in a negotiation and
discussion with the union of the
paid managers, and English
translation of the Minutes of
Discussion is annexed herewith and
marked as Annexure -B to this
Affidavit.
10. That the list of the paid
managers which was forwarded on
6.9.1986 for adjustment
(recruitment) as per rules of the
Government are annexed herewith and
marked as Annexure -C to this
Affidavit.
11. That in short the Government is
agreeable to give effect to the
suggestion contained in the order
dated 4.3.1998 passed by this
Hon’ble Court."
Though the learned counsel appearing for the respondents, in particular Mr. Rakesh Dwivedi, learned Senior Advocate, after some arguments, substantially agreed with the concession shown by the State Government in the additional affidavit, pointed out that the respondents, who have been functioning as Paid Managers of various Cooperative Societies from 1974 onwards, cannot be asked to sit for examination in competition with young new entrants for the purpose of absorption. In other words, the respondents having regard to their age and other family problems, may not be in a position to compete with the youngesters/new entrants. Therefore, it was submitted on behalf of the respondents that they must be treated as a separate category and if at all, a separate examination must be held for them top find out their suitability for absorption.
Mr. Sanyal, learned senior counsel for the appellants, submitted that any such further concession should not prejudice the interest of new entrants as otherwise it will amount to violation of Articles 14 and 16 of the Constitution.
The submissions made on behalf of the appellants and respondents deserve consideration, but some solution must be found out.
On the peculiar facts of this case, were are of the view that the following addition to the acceptance of the State Government as expressed in the additional counter affidavit filed on 17.4.98 would meet the ends of justice.
A reasonable number of posts available - including even there in the process of recruitment - be set apart for being filled up by the Respondents. A separate recruitment test/examination be held. They cannot be asked to take the same examination prescribed for fresh candidates for entering the Government service. The question paper (s) for the eligible respondents must be so prepared bearing in mind the conditions of the respondents such as age, past service, etc. After taking such examination (s), the eligible respondents may be absorbed subject to reasonable conditions as to their past service, seniority and pension.
In the result, we dispose of this appeal accepting the additional affidavit filed by the appellants with the addition or modification as mentioned above. We hope that the appellants would take steps as early as possible in the light of this Judgment to absorb the respondents. No costs.