OMPRAKASH Vs. STATE OF BIHAR

JUDGEMENT

(1.) By the Court.-Only the other day we found that the post of sub-Receptionist clerk (Class III) in the Indira Gandhi Central casualty unit of the Patna Medical College Hospital (P.M.C.H.' for short) was filed up from time to time in an ad hoc and irregular manner (vide C.W.J.C No. 6518 of 1990 ; date of disposal, August 18, 1992).

(2.) The present application concerns the post of Driver (Class IV) in the same unit. The facts stated in these applications, which the respondent authorities have been unable to dispute are disquiting and bring to light a state of complete mismanagement both financially and administrative. The scenario emerges as follows. A new casualty unit is established in the P. M. C. H. It is made 'functional' without adequately providing for the Class III and Class IV personnel who would make the infrastructure for a smooth functioning of the unit. An advertisement, issued shortly after the unit became functional, in order to fill up the Class III and Class IV posts in cancelled by the order of the State Government. No appointments on these posts can be made in a proper and regular manner in view of the complete ban imposed by the Government against any new appointments. However, the Incharge, with a view to anyhow run the unit, engages persons on these posts on daily wage basis. The persons so engated continue to work on their respective posts for months and years. But the Court is told blithely that the authority had the forethought to take care not to allow any person engaged to complete 240 days in a year and, in fact, the services of the daily wagers were regularly broken for 2 to 4 days on monthly intervals. Such engagements though made under practical compulsons are nevertheless without any sanction by the Government and, therefore, the payment of wages to these employees is to be made from the contingency head. On this side also the story is dismal. It is admitted that a person engaged on daily wage basis has actually worked for several months and yet he has not been paid his wages. The Incharge of the unit helplessly states that though the bills for payment of wages have been prepared and passed yet he has not been able to pay the wages for want of funds and wages will be paid as soon as fund is received from the Government. There is yet another angle to this story. Such ad hoc employments made behind the public gaze tend to become largesses in the hands of the Incharge of the unit, in such employments there is a greater possibility to subvert the constitutional guarantee of equality of opportunity in public employment as it enables the Incharge to call and engage a person of his own choice. The person so engaged, by passing any selection based on merit, however, does not cease to lead a precarious existence as in the case of daily wagers, the Incharge has a free hand to change and replace the workers almost at his will It is not uncommon that a daily wager, after having worked for months and years may one day find himself side lined and his post occupied by some one else ; his fault may not be more than demanding the payment of the arrears of his wages. The system of engaging daily wagers, on jobs of a permanent nature and later on either disengaging them or regularising them permanently thus operates on arbitrariness and favouritism and is wholly against the constitutional mandate. .

(3.) Now coming back to the specifics of this case, it is stated that the petitioner was appointed as a Driver in the Indira Gandhi Central Casualty unit by appointment letter dated 31-3-1989. It is averred in the writ petition, and not disputed in the counter-affidavit, that the petitioner was selected, from amongst several applicants on the basis of a driving test. In this case, therefore, there was a substantial compliance with the requirement of 'equal opportunity' and the appointment was preceded by selection based on merit. The report of the driving test is at Annexure-1 and a copy of the letter of appointment is enclosed as Annexure-2. It states that the petitioner was appointed for a period of three months on a purely temporary basis. As noted, the letter of appointment was issued on 31-1-1989 but it takes note that the petitioner had earlier worked for the period 1-11-1988 to 28-11-1988 and again for 1-12-1988 to 28-12-1988. The roster schedules of the Ambulance drivers for different periods have been enclosed as Annexure-3 series to the writ petition ; this is in support of the contention that from the date of his appointment, the petitioner had been working continuosly (excepting of course, the monthly breaks of 2 to 4 days. He, however, has not been paid his salary from 1-2-1990. It is also stated that other drivers similarly situated as the petitioner have been regularised/absorbed in the service but a discriminatory treatment has been meted out to the petitioner. An amendment petition has also been filed stating that after the filing of this application the services of the petitioner were discontinued and some one else was engaged in his place.