Judgment:
Sudhir Kumar Katriar, J.
1. L.P.A. No. 300 of 2008 has been preferred under Clause 10 of the Letters Patent of the High Court of Judicature at Patna by the petitioners of C.W.J.C. No. 2819 of 2007 Surya Nandan Prasad and Ors. v. The State of Bihar and Ors. and is aggrieved by the order dated 14.8.2007, whereby the writ petition has been dismissed, and the order dated 9.9.2004 (Annexure-1/6), whereby respondent Nos. 6 and 7 have been confirmed as Inspector of Factories (Medical), in the Department of Labour, Employment and Training, Government of Bihar, has been upheld. It is further directed against the order dated 7.4.2009 (Annexure-I/7 to I.A. No. 3093 of 2009), passed by the State Government, in the Department of Labour and Employment, passed during the pendency of the present appeal, whereby the objection of the appellants as to the validity of the said order dated 9.9.2004 has been rejected.
2. A brief statement of facts essential for the disposal of the appeal may be indicated. Respondent No. 7 (herein) was appointed as a Member of Bihar Health Service on 9.2.1988 on a substantive basis. By an order of the State Government, he was transferred from the Health Department to the Department of Labour and Employment on 30.6,1988. Similarly, respondent No. 6 was so appointed in Bihar Health Service on 12.1.1990, and was transferred on 27.8.1990. They have continuously functioned as such in the present department as Inspector of Factories (Medical). On the other hand, appellant No. 1, 2 and 3 were appointed as Inspector of Factories in the present department on 2.4.1990, 7.6.1993 and 12.8.1993. The appellants as well as respondent No. 6 were confirmed as Inspector of factories by order dated 12.11.2005 (Annexure G/6) with effect from the dates mentioned against their names. The relevant portion of the order of confirmation is reproduced hereinbelow:
dzekadinkf/kdkjhdk ukedkj[kkukfujh{kd ds in ij vLFkk;h fu;qfDr dh frfFkijh{;ekuvof/k iwjh djus dh frfFklEiqf'Vdh frfFk----
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----1- Jh lw;Zuanu izlkn 02&04&9002&04&9218&07&932- Jh lat; dqekj f}osnh07&06&9307&06&9525&06&953- Jh lqjsUnz dqekj12&08&9312&08&9507&07&964- Jh 'kqHks'oj dqekj09&06&9309&06&9522&06&975- Jh ijekuan izlkn10&06&9310&06&9510&06&956- Mk0 'ke'ksj cgknqj flag20&03&88LokLF; foHkkx esa20&03&9010&05&917- Mk0 jktds'oj dqekj22&01&90 LokLF; lEoxZ es 22&01&9222&01&92
This order was passed by the State Government in the Department of Labour, Employment and Training, in terms of Rules 36(m) and (w) of the Bihar Labour Services (Technical) Rules 1969 (Hereinafter referred to as the 'Technical Rules').
3. Appellant Nos. 1 and 2 as well as respondent Nos. 6 and 7 were given the benefit of Assured Career Progression by order dated 6.5.2006 (Annexure-H/6). It is relevant to state that respondent No. 7 was given the benefit of Assured Career Progression with effect from 20.3.2000, respondent No. 6 was given with effect from 22.1.2002, appellant No. 1 was given with effect from 2.4.2002, and appellant No. 2 was given with effect from 7.6.2005. Whether or not appellant No. 3 has been given the benefit of Assured Career Progression is not on record.
4. The present department gave option to respondent Nos. 6 and 7, and similarly circumstanced doctors functioning as Inspector of Factories (Medical), for permanent absorption in the department. Respondent Nos. 6 and 7 gave their option for permanent absorption. Consequently, the respondent authorities issued order dated 9.9.2004 (Annexure1/6), whereby respondent Nos. 6 and 7 have been permanently absorbed in the services of the department as Inspector of Factories (Medical), and consequently their lien in the parent department has been terminated, leading to the writ petition. The learned Single Judge has dismissed the writ petition and upheld the impugned order. The learned Single Judge further observed that as the objection to the combined gradation-list is pending, let the same be disposed of expeditiously. The objections of the appellants were considered by the respondent authorities and have been rejected by order dated 7.4.2009, passed during the pendency of the appeal and impugned herein, whereby the objections have been rejected and it has been held that respondent Nos. 6 and 7 were validly confirmed and shall rank senior to the present appellants, otherwise great injustice would be done to them. In other words, it has been found therein that respondent Nos. 6 and 7 were transferred to the present department under a policy decision of the State Government, and they had not sought transfer to the department.
5. While assailing the validity of the impugned action, learned Counsel for the appellants submits that the terms and conditions of the cadre is governed by the Technical Rules which does not provide for the post of Inspector of Factories (Medical). He next submits that, in any view of the matter, Rules 28 to 31 prescribe for confirmation of persons in the cadre has not been followed. He submits in the same vein that Rule 8 of the Bihar Public Service Commission (Limitation of the Functions) Regulation 1957 has not been followed. He submits that the judgment of a learned Single Judge by one of us (S.K. Katriar, J.) in the case of Pram Chandra Jha v. the State of Bihar reported in 2007 (2) P.L.J.C. 566 lays down to the effect that in the presence of statutory rules, the procedure prescribed therein has got to be followed. He also submits that if the law prescribes for a particular procedure, then the official act has to be performed as per that procedure. He relies on the following reported judgments:
(i) : A.I.R. 1987 S.C. 2386 : (1987)4 S.C.C. 611 Ranjit Thakur v. Union of India and Ors.
(ii) : A.I.R. 1979 S.C. 1628 Ramana Dayaram Shetty v. The International Airport Authority of India and Ors.
(iii) : A.I.R. 1976 S.C. 789 Hukam Chand Shyam Lal v. Union of India and Ors. paragraph 18.
(iv) : (1999) 8 S.C.C. 266 Chandra Kishore Jha v. Mahavir Prasad and Ors. paragraph 17 at page 272.
5.1) He next submits that respondent No. 6 and 7 are in the cadre of Health Department and cannot be absorbed in the present department, the functions, duties and aims of which are fundamentally different. In any view of the matter, being outsiders, they can be absorbed in the present department on the strict condition that they shall rank junior to the direct recruits of the department as on the date of their confirmation in the department. He relies on the case of K.P. Sudhakaran and Anr. v. State of Kerala and Ors. reported in : (2006) 5 S.C.C. 386.
5.2) The reliance placed by the respondents on the order dated 6.5.2005 (Annexure-9) in CWJC No. 324 of 2004, is inappropriate because the same has been rendered by a learned Single Judge of this Court, and also for the reason that the present appellants were not parties to that proceeding. He has also pressed I.A. No. 3319 of 2009 challenging the gradation list which has been permitted to be so challenged by an earlier order of this Court.
6. Learned Counsel for respondent No. 7 has made elaborate submissions in opposition. Learned Counsel for respondent No. 7 has submitted that L.P.A. No. 763 of 2008 is not maintainable because it is a repetition of L.P.A. No. 300 of 2008. Learned Counsel for respondent No. 6 has adopted his submissions. Respondent No. 7 submits that they were appointed in the services of the Bihar Government earlier than the appellants and were transferred to the present department under a policy decision of the State Government. When the occasion arose, they were given the option of permanent absorption to which they had agreed. In other words, in his submission, they have not been transferred to the present department on their own request.
6.1) He next submits that being dutiful servants of the Bihar Government, they faithfully carried out the order. He next submits that it is evident from the notification dated 18.6.2002, issued after the bifurcation of the undivided State of Bihar, that two posts of Inspector of Factories (Medical) have been allocated to the present State of Bihar as per the recommendations of the Central Advisory Board dated 18.6.2002. He next submits that there are clear provisions for the post of Inspector of Factories (Medical) in the Factories Act as well as in the Technical Rules.
6.2) He next submits that respondent Nos. 6 and 7 were enjoying higher pay-scales on the date they had joined the present department. He also submits that 35 similarly circumstanced doctors were absorbed in the department earlier. He relies on the following reported judgments of this Court:
(i) 2001 (2) P.L.J.R. 406 Dr. Anirudh Mishra v. the State of Bihar and Ors. and
(ii) 2007 (3) P.L.J.R. 633 Anil Bishnu Raman v. The State of Bihar and Ors.
6.3) He next submits that order of absorption of respondent Nos. 6 and 7 in the present department was passed way back on 9.9.2004 (Annexure 1/5); whereas the writ petition was lodged in this Court on 2.3.2007. Settled affairs cannot be unsettled in the manner canvassed by the appellants. He relies on the judgment of this Court in Patna Municipal Corporation v. Abhinash Kumar Singh and Ors. reported in 2009 (2) P.L.J.R. 671.
7. We have perused the materials on record and considered the submissions of learned Counsel for the parties. It appears to us that respondent Nos. 6 and 7 were appointed in the Bihar Health Services on 9.2.1988 and 12.1.1990 respectively. There are enough materials on record to conclusively hold that they were transferred to the present department under a policy decision of the State Government because of the need of the doctors here. There is not the slightest material on record to show that they had sought their transfer from the Health Department to the present department. With the aid and assistance of the Bihar Public Service Commission, the Bihar Government appointed the doctors in the Bihar Health Service, whose services are utilised in different departments of the State of Bihar. It is evident on a plain reading of the Technical Rules that there is clear provision for the post of Inspector of Factories (Medical) in the present department, discussed in detail herein below. After having worked in this department for sufficiently long length of time, a stage reached in the State Government to decide whether or not the services of respondent Nos. 6 and 7 would be absorbed in the present department. Accordingly option was given to them who opted to continue in the present department and for their permanent absorption. Consequently, the order dated 9.9.2004 (Annexure 1/6) was issued absorbing them as Inspector of Factories (Medical) in the present department. The consent given by respondent Nos. 6 and 7 in the shape of their applications or the affidavits expressing their willingness to absorb them in the present department was surely in pursuance of a call given by the State Government to such doctors and in no way can be treated to be voluntary act on their part seeking transfer and/or absorption in the present department. The first contention advanced on behalf of the appellants is hereby rejected.
8. We must next deal with the contention advanced on behalf of the appellants that there is no provision for the post of Inspector of Factories (Medical) in the present department. Rule 3(1) of the Technical Rules provides as follows:
3- (i) bl lsok esa fuEu nks Ik`Fkd&Ik;`Fk oxZ gksxs%
d (i) eq[; dkj[kkuk fujh{kd] mi eq[; dkj[kkuk fujh{kd] mi eq[; dkj[kkuk fujh{kd mRikndrk jfgr] dkj[kkuk fujh{kd] izoj dksfV] Js.kh&1 ds in] vkSj
(ii) dkj[kkuk fujh{kd] dkj[kkuk fujh{kd jlk;u] mRikndrk inkf/kdkjh] Js.kh&2 ds in
[k (i) eq[; okf'Ik= fujh{kd] okf'i= fujh{kd] izoj dksfV Js.kh&1 ds in vkSj
(ii) okf'i= fujh{kd] Js.kh&2 ds in
(iii) ,sls vU; in tks le; le; ij jkT;iky n~okjk l`ftr fd;s tk;sa vkSj fcgkj Je lsok rduhdh esa [kkl rkSj ls 'kkfey fd;s tk;saA
It is evident on a plain reading of Sub-rule (ii) that there are posts of Inspector of Factories (Chemical), Production Officer, all Class-II posts. The rule-making authority had advisedly inserted three categories of Class-II posts. The Inspector of Factories is a general expression and is capable of including Inspector of Factories (Medical). Learned Counsel for the appellants has placed considerable reliance on Rule 5 of the Technical Rules which reads as follows which prescribes the sources of recruitment:
5. Source of recruitment The Bihar Labour Service (Technical) shall be recruited.
(a) by direct recruitment in accordance with the rule in part-III of these rules, and/or
(b) by promotion or transfer of officers already in Government service in accordance with the rules in Part IV of these rules;
Provided that recruitment to the Class I posts of the service shall be made by promotion or transfer only.
9. We are convinced on the materials on record that respondent Nos. 6 and 7 have joined this department, not on their own request, but under a policy decision of the State Government meant to fill up the sanctioned posts of Inspector of Factories (Medical) in the present department. The contention is rejected.
10. Learned Counsel for the appellants has next submitted that Rules 28 to 31 of the Technical Rules have not been followed before the decision was taken to absorb respondent Nos. 6 and 7 in the present department. It appears to us on a perusal of Rules 28 to 31 that the same were indeed followed when the initial decision for transfer of services of respondent Nos. 6 and 7 in the present department was taken in 1988 and 1990. Even if there were some administrative deficiency in fully carrying out the terms of the rules, the same will be deemed to have been condoned by lapse of time. This has to be read with the undoubted position that respondent Nos. 6 and 7 are validly appointed servants of the Bihar Government, in the Bihar Health Services, on the aid and advice of the Bihar Public Service Commission. Furthermore, as we have held hereinabove, indeed they were transferred to the present department under a policy of the State Government, so that the posts meant for Inspector of Factories (Medical) are filled up by qualified persons, and the present department functions to its optimum capacity and expectations. The contention is rejected.
11. In that view of the matter, the four decisions relied on by learned Counsel for the appellants are really not attracted in the present case. The procedure was indeed followed and the absorption has now settled by lapse of time. We must in this connection note that learned Counsel for respondent Nos. 6 and 7 has rightly submitted that settled affairs cannot be permitted to be unsettled at this belated stage in a situation where everything has happened at the behest of the State Government, entirely in public interest and for efficient Government functioning.
12. We must at this stage notice the judgment of the Supreme Court in K.P. Sudhakaran v. State of Karala (supra) relied on by learned Counsel for the appellants. It is evident on a plain reading of the same that if an employee were transferred to another department/unit on his own request, he would then have to forego the benefit of past service for the purpose of seniority and he shall rank junior to the persons in the department on the date of his transfer. Paragraph 11 of the judgment is reproduced herein below for the facility of quick reference:
11. In service jurisprudence, the general rule is that if a government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the juniormost employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service rules.
We have already noticed hereinabove that respondent Nos. 6 and 7 were transferred to the present department under a policy decision of the State Government and shall, therefore, carry their length of service and the benefits of past service to the present department also. Judging from this angle, it is evident that respondent Nos. 6 and 7 would rank higher than the appellants. Therefore, the decision of the State Government to place respondent Nos. 6 and 7 higher than the appellants is a valid decision and cannot be faulted.
13. Learned Counsel for the respondents has brought to our notice a large number of factors to our satisfaction to establish that the post of Inspector of Factories (Medical) have been created and do exist in the present department. We must at the outset notice as indicated hereinabove to establish that reference of the post of Factory Inspector is made in Rule 3(1)(ii) of the Technical Rules. Furthermore Section 8(4) of the Factories Act provides that every District Magistrate shall be an Inspector for his district. Rule 13 of the Bihar Factories Rule 1950 lays down the powers of Inspectors. Sub-rule (b) of Rule 13 provides that 'in the case of an Inspector who is a duly qualified medical practitioner, to carry out such medical examinations as may be necessary for the purposes of his duties under the Act. Rule 13A provides for qualifications of an Inspector, Sub-rule (b) of which provides that 'he must have secured a degree or diploma or equivalent to a degree of a recognised University in any branch of Engineering, Technology or Medicine'. It is thus evident that 'Inspector of Factories' occurring in Rule 3(1)(ii) is a generic expression to include Inspector of Factories of different specialities created by it keeping in view the functioning of the department. There are enough indications in the Technical rules to show that the Technical rules contemplate creation and existence of the post of Inspector of Factories (Medical) in this department. Rule 9 prescribes the 'Qualifications' of Inspector of Factories. The relevant portion of Rule 9(a) is reproduced hereinbelow for the facility of quick reference:
9. Qualifications(a) A candidate for appointment as Inspector of Factories must possess-
2(i) A degree of a recognised University in any branch of engineering, Technology or medicine or any other qualification recognised by the State Government by notification in the Gazette to be equivalent to any of the above mentioned degree;
Provided that for any particular vacancy the State Governmentmay specify any particular branch of engineering technology or medicine depending upon the need of the Government.
(ii) two years practical experience in 3['any branch of engineering, technology or medicine'] in any firm of repute or in a department of Government.
Provided that in the case of a candidate possessing a degree from a recognised University, the time spent in practical training during the University course, may count towards the prescribed period of practical experience up to a maximum of one year;
(iii) must be able to read and write Hindi in Devnagri script.
(Emphasis added)
On a perusal of the aforesaid rules, it is manifest that a decree of a recognised University in medicine is the minimum qualification for appointment to the post of Inspector of Factories (Medical).
14. We are thus convinced that there is clear provision for the post of Inspector of factories (Medical) in the Technical Rules.
15. Learned Counsel for the private respondents are right in their submission that the impugned order was passed way back on 9.9.2004, and the writ petition was lodged in this Court on 2.3.2007. In other words, the writ petition was lodged after a lapse of about two and half years. We are of the view that the situation created by the order of absorption had been settled before the writ petition was filed. Settled affairs cannot be unsettled in the manner sought to be suggested by the appellants. We further notice that about 35 similarly circumstanced doctors have already been absorbed in the department earlier and which has become final. In such a situation, we entirely agree with the reasoning given by the State Government in its order dated 7.4.2009, whereby the objection of the appellants has been rejected. Consequently, respondent Nos. 6 and 7 must rank higher than the appellants in the combined gradation list of Inspector of Factories in the present department.
16. In the result, we do not find any merit in L.P.A. No. 300 of 2008 and is accordingly dismissed.
17. L.P.A. No. 763 of 2008 has been preferred against that part of the order dated 14.8.2007, passed in Civil Review No. 129 of 2007, whereby the learned Single Judge has refused to review the order dated 6.5.2005, passed in the aforesaid C.W.J.C. No. 324 of 2004. L.P.A. No. 763 of 2008 is dismissed in view of dismissal of the aforesaid L.P.A. No. 300 of 2008.
18. Both the appeals are accordingly dismissed.