of Bihar & Ors Vs. Bihar Rajya Sahkarita Prabandhak Seva Sangh, Patna, & Ors  INSC 426 (20 August 1998)
S. Rajendra Babu K. Venkataswami, J.
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
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.
have heard Mr. S.B. Sanyal, learned senior counsel for the appellants, for some
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 :-
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.
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
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.
consider the suggestion and comply with the direction, learned counsel wants
some time to get instructions.
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.
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.
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.
That this Hon'ble Curt taking humane approach desired :
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.
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
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.
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.
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.
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.
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.
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.
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.
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 Co-
operative 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.
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.
submissions made on behalf of the appellants and respondents deserve
consideration, but some solution must be found out.
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.
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.
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.