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2002 Supreme(Pat) 685

PATNA HIGH COURT
Nagendra Rai and R.S.Garg JJ.
Vijay Kumar
Versus
State Of Bihar
P.A. No. 142 of 2002 ;
Decided On : JUNE 28, 2002

Headnote:Constitution of India-Article 311-The creation, continuation and abolition of post is the prerogative of the government-It is the policy decision taken by the executive keeping in view of requirement exigency and administrative necessity-No body can force the Government to create post or to retain the post However the decision to abolish the post is to be taken in good faith-Once the decision is taken in good faith the Court cannot go into the question as to whether the post should be abolished or not only in a case where the government has acted malafide or arbitrary in abolishing the post resulting in termination of the services of the incumbent, the Court will interfere in the matter-If the post has been abolished in good faith on account of administrative exigency and as a result of which the occupier of the post is removed, then the same is not dismissal or removal attracting Article 311 of the constitution. (Para 14)

       Service Law-Termination-Appointment of appellants as Forest Extension Supervisors and Forest Extension workers under National Rural Employment Programme and the Rural landless Employment Guarantee Programme-It was clearly mentioned in the order that the appointment would be temporary and co-terminy with the scheme/project but appellants continued for more than 10 years even after closer of scheme-The Government having taken work from them large number of posts are vacant other similarly situated were absorbed-Their appointments were not through back door method-Only because some persons were appointed having nomenclature of the post which had already existed in the department they cannot form a separate class for the purpose of making some permanent ignoring the claim of other persons similarly appointed-Termination quashed. (Paras 15, 16, 23 & 28)

       AIR 1992 SC 789-Distinguished

       CWJC No. 3608, 4176, 7601, 10781, 13477 and 12931 of 2001-Set aside

       Constitution of India-Article 16,16 &41-Through the right to livelihood or right to work is not a fundamental right-The state shall within the limits of the economic capacity and development make effective provision for securing the right to work-The State cannot act on its whims and remove the employees by adopting the principles of hire and fire-It has to act in reasonable manner and its action should be consistent with the requirement under Article 14 & 16 of the Constitution of India-It cannot generate hope in employees by asking them to continue in service for so many years and later to leave them in lurch without any reasonable ground. (Para 17)

       AIR 1990 SC 2228-Referred

       Rules of Executive Business 1973-Schedule III-Decisions to continue the services was required to be taken by the council of ministers-Department was not competent to modify the decision taken by the council of minister under the Rule of Executive Business-Matter should have been placed before the council of Ministers to decide as to whether the persons should be allowed to continue in service. (Paras 19 to 22)

       

Judgment

Nagendra Rai, J.

1. All the appeals, except LPA No. 183 of 2002 are barred by limitations. After having heard learned counsel for the parties and taking into consideration the averments made in the limitation petitions in the appeals, we are satisfied that sufficient grounds have been made out to condone the delay in filing these appeals. Accordingly, the delay in filing these appeals are condoned. The appellants filed the writ applications challenging the order dated February 22, 2001 passed by the Forest and Environment Department, Government of Bihar, annexed as Annexure-30 of the writ application No. 3608 of 2001 (hereinafter referred to as the writ application) by which services of 40 Forest Extension Supervisors (hereinafter referred to as the FES) and 91 Forest Extension Workers; (hereinafter referred to as the FEW) including the appellants were terminated.

2. The three writ applications, namely, C.W.J.C. No. 3608, 4176 and 7601 of 2001, were disposed of by a common order dated October 4, 2001 by the learned single Judge of this Court by which the order of termination of the services of the appellants were upheld with a direction to the State Government to consider their cases for absorption on the post of Foresters and Forest Guards keeping in view the long services rendered by them, past assurance given by the Government and other relevant considerations.

3. C.W.J.C. Nos. 10281, 13977 and 12931 of 2001 filed by some of the appellants were disposed of subsequently in terms of the order passed in the aforesaid three writ applications. These appeals have been filed by the appellants challenging the aforesaid order dated October 4, 2001 and subsequent orders passed in accordance with the said order and they have been heard together and are being disposed of by a common order.

4. The admitted facts are that the Central Government during 6th Five Year Plan introduced two schemes, known as National Rural Employment Programme (hereinafter referred to as the NREP) and the Rural Landless Employment Guarantee Programme (for short, RLEGP) with a view to alleviate the rural poverty by distribution of income in favour of the poor and the needy population in the rural areas by providing employment opportunities to them and with a view to generate additional employment particularly for the landless workers. The social forestry was one of the earmarked programmes for which 20% of fund was to be given. Out of this earmarked fund 5% was to be spent on meeting the cost of establishment for setting up social forestry scheme. The entire fund was provided by the Central Government. The aforesaid two programmes were being administered by the Rural Development Department, Government of Bihar which was responsible for the implementation of the programmes and the fund was being made available to the department of Forest and Environment, Government of Bihar by it. The Department of Forest and Environment. Government of Bihar, with a view to implement the aforesaid schemes on February 12/14, 1986 took a decision to create 100 posts of FES and 200 posts of FEW, vide Annexure-2 to the writ application. The salary was to be paid out of the fund available under the aforesaid two schemes, namely, NREP and RLEGP. It was clearly provided in the order creating posts that the posts will be temporary and will be co-terminus with the programme/scheme itself. The qualification and mode of selection etc. were also provided. A committee was constituted under the chairmanship of the Divisional Commissioner consisting of himself and two members, namely, one seniormost District Magistrate and one seniormost Divisional Forest Officer to recommend the names for appointment. The appointment of FES was to be made by the Conservator of Forests and the FEW by the Divisional Forest Officer. In terms of the said decision of the State Government, an advertisement was issued inviting applications from the eligible candidates and the appellants and others applied an

































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