IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4045 of 1997 AMAR NATH JHA, son of Shri Keshav Kant Jha, at present residing at Jagatpur (Tunni Mishra Tola), P.S. Jagatpur, District Madhubani ... Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner and Secretary, Human Resources Development Department, Govt. of Bihar, Patna 3. The Director, Primary Education, Govt. of Bihar, Patna 4. The Regional Deputy Director of Education, Darbhanga Division, Laheriasarai, Darbhanga 5. The District Education Officer, Samastipur 6. The Principal, Primary Teachers‟ Training College, Rampur, P.O. Rampur Jalalpur, District Samastipur … Respondents ----------- 3. 8.7.2010 Heard Mr. Shyama Prasad Mukherji, learned Senior counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This application is being filed for quashing the office order contained in Memo No. 682 dated 22.3.1997 issued under the signature of Regional Deputy Director of Education, Darbhanga Division, Darbhanga, by which services of the petitioner has been terminated from the post of Assistant Teacher, Abhyas-sala, Primary Teachers‟ Training College, Rampur, Jalalpur, Samastipur in light of High Court‟s order dated 20.4.1987 passed in C.W.J.C.No. 4928/86. It has been further 2 directed to the then Principal to recover the amount from the petitioner which has been paid towards salary and allowance and ensure compliance by depositing the same in the Government Treasury. This application has also been filed for holding that the impugned order of termination of service of the petitioner and direction for recovery of the amount which has been paid to the petitioner towards salary and allowances etc. is arbitrary, illegal and without any sanction of law. This application is also being filed for commanding the respondents not to interfere with the peaceful discharge of duty by the petitioner on the post of Assistant Teacher, Abyas-sala, Primary Teachers‟ Training College, Rampur, Jalalpur, Samastipur and further allow him to receive salary and allowances admissible to him under law. This application has also been filed for commanding the respondents to regularize the services of the petitioner on the post of Assistant Teacher from the date of his initial appointment. It is relevant to state here in this connection that the petitioner 3 was initially appointed as Assistant Teacher on 6.6.1985 after complying all the procedure as laid down by the State Government and accordingly, he joined his duty on 5.7.1985. It is further stated that the appointment of the petitioner was duly approved by the Regional Deputy Director of Education, Darbhanga Division, Darbhanga vide order dated 11.10.1985. It is further pertinent to mention here that one Prabhat Kumar Mishra had filed a writ petition being C.W.J.C.No. 4928/86 before this Hon‟ble Court, challenging the order dated 31.3.1986 and 6.6.1985, passed by the District Education Officer, Samastipur by which one Raghvendra Choudhary and the petitioner was appointed as Assistant Teacher. He had also challenged the order dated 11.10.1985 by which appointment of the petitioner was approved by the Regional Deputy Director of Education, Darbhanga Division, Darbhanga. In the said writ petition, the petitioner was impleaded as party respondent no.7. After hearing the parties, the aforesaid writ application was dismissed vide order dated 20.4.1987 and further the 4 respondent Regional Deputy Director of Education, Darbhanga Division, Darbhanga was directed to make appointment of Assistant Teachers in the said school within 3 months from today in accordance with law. The respondent no.7 (present writ petitioner) shall, however, be allowed to continue in the said post for the said period of three months. It is made clear that respondent no.7 shall not be allowed to continue beyond three months on the basis of Annexure 2 or 3 (of that writ petition). It is further stated that the petitioner has time and again filed application before the authorities concerned for appropriate orders in light of the High Courts‟ order after lapse of 3 months. It is further stated that the petitioner was sent for Primary Teachers‟ Training vide letter dated 27.11.1991 and accordingly completed his teachers‟ training course. After completion of Teachers‟ training course, the petitioner was directed to join his duty in the aforesaid post of Assistant Teacher, Abhasyas-sala, Primary Teachers‟ Training College, Rampur, Jalalpur, Samastipour and since then he is discharging his 5 duty efficiently, diligently and to the full satisfaction of his superior officers. The petitioner shocked to receive the impugned office order contained in Memo No. 682 dated 22.3.1997 issued by the Regional Deputy Director of Education, Darbhanga Division, Darbhanga by which services of the petitioner has been terminated in light of Hon‟ble High Court direction and further the then Principal of the Primary Teachers‟ Training College, Rampur, Jalalpur has been directed to recover the amount which has been paid to the petitioner towards salary and allowances and ensure compliance of the order by depositing the same in the Government Treasury. Hence, this writ application.” The aforesaid exhaustive prayer in fact would also give a clear indication that an earlier occasion this Court had already held the appointment of the petitioner on the post of Teacher to be bad when it was assailed in C.W.J.C.No. 4928/1986 by one Prabhat Kumar Mishra. In fact the counsel for the petitioner in that case had himself agreed that the appointment of the 6 petitioner should be terminated and there should be a fresh selection. It was in this background that this Court in the writ petition, C.W.J.C.No. 4928/1986 wherein the present petitioner was arrayed as respondent no.7 had recorded as follows: “ As regards respondent no.7 learned counsel appearing for the petitioner and respondent nos. 7 and 9 have all agreed that there should be a fresh appointment in the school, in accordance with law, but until that appointment is made, respondent no.7 may be allowed to continue in the said post, Respondent no.7 it may be stated here, have been appointed vide Annexure „2‟ sometimes in June, 1986. In this view of the matter, the Regional Deputy Director Darbhanga Division, Laheriasarai (respondent no.3) is directed to make the appointment of Assistant Teacher in the said school within three months from today, in accordance with law. Respondent no.7 shall however be allowed to continue in the said post for the said period of three months. It is made clear that respondent no.7 shall not be allowed to continue beyond three 7 months on the basis of Annexures „2‟ or „3‟.” The logical outcome of the aforementioned clear direction of this Court was that the petitioner had to go out of service on 20.7.1987. It, however, appears that the petitioner continued in service upto 22.3.1997 i.e. almost ten years from the date of the order of this Court in C.W.J.C.No. 4928/1986. It is true that for such continuation it is not the petitioner alone who can be blamed specially when a plea in the impugned order has been taken by the concerned authority that the knowledge of the order of this Court dated 20.4.1987 was never given to the office of the Regional Deputy Director of Education, Darbhanga and in fact it was from a communication of the Director, Primary Education dated 17.3.1997 that the direction was given for terminating the services of the petitioner in compliance of the order of this Court. Mr. Shyama Prasad Mukherji, learned Senior counsel for the petitioner, would however submit that the petitioner was not 8 at fault in continuing in service, inasmuch as when he was appointed by an appointment letter his services had to be brought to an end by an order of termination and that if such order of termination was not issued by the R.D.D.E., Darbhanga as directed by this Court, the petitioner cannot be blamed for continuing in service. He would further submit that as the petitioner has completed 15 years service on the date of his termination, a right had accrued in his favour for being retained in service. Counsel for the State only has proceeded on the basis of counter affidavit filed by the R.D.D.E., Darbhanga that he had no knowledge of the order of this Court dated 20.4.1987 and therefore, the petitioner either by inadvertence or playing fraud had continued in service for next ten years but such continuation being contrary to the orders of this Court, the petitioner cannot claim any right, especially when his initial appointment was also found to be bad by this Court in the aforementioned order dated 20.4.1987 in C.W.J.C.No. 4928/1986. 9 There are two aspects which are required to be gone into in this case. One relating to initial appointment of the petitioner in the year 1985 and the other being, his termination from service in the year 1997. This Court on the earlier occasion when the appointment of the petitioner was challenged in C.W.J.C.No. 4928/1986 by one Prabhat Kumar Mishra had come to a conclusive finding that the appointment of the petitioner, who was then respondent no.7 in that case, was illegal and could not be allowed to continue. In fact for that reason counsel appearing on behalf of the petitioner in that case had himself consented for removal of the petitioner from service by accepting the plea of all the parties for fresh filling up the post in accordance with Rules. Therefore, once this Court has already decided that the initial appointment of the petitioner was bad, the same question cannot be allowed to be re-agitated. So far continuation of the petitioner is concerned, it is true that his 10 order of termination has come only on 22.3.1997 but then the petitioner was holding the post of a teacher and was aware of his agreement recorded before this Court under which he had been allowed to be continued in service on the post of teacher only for a period of three months. The petitioner, therefore, ought to have himself informed the authority of such direction but the fact that the petitioner continued in service for next ten years would itself demonstrate that the respondent R.D.D.E. was not made aware of the direction of this Court in the order dated 20.4.1987 in C.W.J.C.No. 4928/1986. As a matter of fact neither the petitioner has asserted this fact in the writ application nor has controverted the stand of the R.D.D.E. that he had not given information with regard to the order of this Court dated 20.4.1987 to the authorities. That by itself would be sufficient to hold that the continuation of the petitioner in violation of the order of this Court would confer him no right. 11 It is well settled that any action or order of any person in violation of the Court‟s order would clothe him with no right as was held by the Apex Court in the case of Delhi Development Authority vs. Skipper Construction Comp.(P) Ltd., reported in (1996) 4 SCC 622. Considering such settled position of law this Court would hold that the termination of service of the petitioner in compliance of the order of this Court though belatedly suffers from no infirmity. There would be one more aspect which has to be addressed to by this Court, inasmuch as it was the joint undertaking given by all the parties to this Court that the post of teacher on which the petitioner was working would be filled up in accordance with Rules and for that purpose a time limit of three months was fixed by this Court. Assuming that the R.D.D.E. came to know of such order of this Court only on 17.3.1997 through the Director, Primary Education and had gone to pass an order of termination of the service on 22.3.1997 but even thereafter he had to comply with rest part of the 12 direction of this Court as with regard to filling up the post of teacher. It is the specific assertion of the petitioner that such post has not yet been filled up and on account of that the petitioner who has now already crossed his maximum age limit for appointment in Government service has now become disqualified for such consideration. Counsel for the State, however, has got no instruction in this aspect though he ought to have been ready on this point because the counter affidavit by the R.D.D.E. was sworn on 8.7.1997 by which time the period of three months even from the date of knowledge of the R.D.D.E. had expired. Be that as it may, this Court would direct the R.D.D.E., Darbhanga to verify this aspect as to whether the post in fact has already been filled up and if it is found that the same post has not been filled up he would immediately take steps for filling up of such post. The petitioner as per earlier order of this Court would also be eligible for applying on the said post. 13 Surendra/ He will also be entitled for his consideration by giving relaxation in age. In other words, the petitioner will have to compete with all candidates but the age limit will not come in his way in course of such consideration. This exercise must be completed by the R.D.D.E., Darbhanga within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.)