IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11436 of 2009 1. Dilip Kumar Rai, s/o- Sri Mishri Lal Rai, r/o- village and P.O.- Belaha, District- Madhubani. 2. Prashant Priyawar, s/o- Sri Nand Kishore Prasad Singh, r/o- village- Hemjapur, P.O.- Shivkundpur, District- Munger. 3. Pramod Kumar Sah, s/o- Sri Vasudeo Pd. Sah, r/o- Mohalla & P.s.- Purabsrai, District- Munger. 4. Shubchandra Rai s/o- Kusheshwar Rai, r/o- village & P.O.- Kharoua, District- Madhubani. 5. Sri Dhrub Pandit, s/o- Sri Jai Narayan Pandit, r/o- Munger. 6. Sujit Kumar, s/o- Bahgwat Prasad, r/o- village Gopalpur, Post- Vidyapatinagar, District- Samastipur. 7. Rajniti Prasad Singh, @ Rajniti Prasad, s/o- Late Kailash Prasad Singh, r/o- village- Tilkapur, District- Bhagalpur. 8. Govind Kumar Satyarthi, s/o- Sri Bhagwat Prasad Yadav, r/o- Mohalla- Shyampur, Post- Wasudeopur, District- Munger. 9. Lal Kumar Manjhi, s/o- Sri Bachchu Manjhi, r/o- Mohalla- Betban Bazar Mushahari, Post & District- Munger. 10. Mukesh Kumar, s/o- Sri Ram Bilas Yadav, r/o- village- Pokhariya, P.S.- Danouli, Phulwariya, District- Begusarai. 11. Bablu Kumar, s/o- Sri Ram Kelawan Mundal, r/o- mohalla Betban Bazar, near Panikar quarter, District- Munger. 12. Birendra Kumar @ Birendra Bind, s/o- Late karu Vind, r/o- mohalla Jamamlpur, District- Munger. 13. Shikhar Vibhanu, s/o- Sri Vinod Kumar, r/o- village Madhopur, Post- Basdeopur, District- Munger. 14. Rana Pratap Singh, s/o- Sri Rajendra Prasad, r/o- village- Navtoliya, Post- Vindbara, District- Munger. 15. Mituhalesh Kumar, s/o- Sri Jay Prakash Yadav, r/o- village- Navtoliya, Post, Vindbara, District- Munger. 16. Kukndan Kumar, s/o- Sri Sundra Ram Mundal, r/o- Mohalla- Purabsarai, Raghubarbabu Lane, District- Munger. 17. Lalan Kumar Yadav, s/o- Ram Raksha Pd. Yadav, r/o- village Pokhariya, Post- Phulwariya, District- Begusarai. 18. Satish Kumar Singh, s/o- late Ratneshwar Prasad Singh, r/o- village- Budhama, Post- Khara, District- Madhepura. 19. Shanichar Bind, s/o- Sri Bhola Bind, r/o- mohalla Jamalpur, District- Munger. 20. Bablu Kumar, s/o- Medani Prasad, r/o- Village- Bichchi Chanchar, District- Munger. ………. Petitioners Versus 1. The State of Bihar through the Secretary, Urban Development Department, Government of Bihar, New Secretariat, Patna. 2. The Deputy Secretary to the Government, Urban Development Department, Patna. 3. The District Magistrate, Munger. 4. The Nagar Nigam Munger through its Executive Officer, Munger. 5. The Executive Officer, Nagar Nigam, Munger. ….. Respondents 2 For the petitioners : Mr. Shailendra Kumar Sinha, Advocate For the State : Mr. Manoj Kumar Ambastha, G.P. 14. For the Municipality ` : Mr. Ambika Bhagat, Advocate ----------- 5 25.07.2011 Heard both sides. Petitioners raise a grievance with respect to order contained in Annexure-12 passed by the respondent No. 2 (Deputy Secretary, Urban Development Department, Patna) whereby the representation preferred by the petitioner in the light of order dated 13.2.2009 (Annexure-10) was considered and rejected. Petitioners claimed to have been appointed by the then Special Officer of the Nagar Nigam, Munger. It is the case of the petitioners that they were appointed after issuance of advertisement and subjecting them to the process of selection in which they were interviewed by the Selection Committee constituted for the said purpose. They continued for some time. With the take over of the administration by the elected bodies in the year 2001, the salaries of the petitioners was/were stopped which was/were followed by an order of termination passed in the year 2006. Said order was challenged by the petitioners in C.W.J.C. No. 8888 of 2006. This Court considered the matter in great detail and remitted the case back to the respondent No. 2 to pass a reasoned order on the claim of the writ petitioners. The petitioners were directed to file exhaustive representation vide order dated 13.2.2009. While remitting the matter back to the said respondent, 3 this Court found that the appointment of the petitioners cannot be said to be illegal for want of jurisdiction. This Court also noticed that relevant file was not available when the order of termination was issued by the respondent Nagar Nigam. It was also noticed that respondents, in the meanwhile reconstructed the records. Under orders of this Court, the petitioners have been paid their due salary for the period they worked. There is no dispute with regard to said factum in view of the stand of the petitioners and respondent Nagar Nigam. Since the relevant pleadings supported by documents respecting the procedure adopted by the respondent Nagar Nigam was/were not available on record and a stand was taken that the file concerning appointment of the petitioners was not traceable, this Court directed the respondent No. 2 to consider the claim of the petitioners and pass appropriate orders in accordance with law. The representation filed on behalf of the petitioner is on record as Annexure-11. It appears therefrom that facts were disclosed head wise. It is now the admitted position that the file concerning the appointment of the petitioners in the respondent Nagar Nigam has now been reconstructed. The respondent No. 2 in the light of order of this Court considered the said representation and found that the posts on which the petitioners were appointed were sanctioned and vacant posts. The said respondent in the order impugned concluded as under:- “ekuuh; mPp U;k;ky;] iVuk ds mijksDr vkns” ds vkyksd esa uxj ifj"kn] eaqxsj ls fu;qDr lEcfU/kr 4 iqufuZfeZr lafpdk ds voyksdu ls irk pyrk gS fd o"kZ 1998 esa dqy Lohd`r in 674 ds fo:) dk;Zjr cy 617 Fkk ,oa fofHkUu inksa ij 57 fjfDr Fkh ftlds fo:) fu;qfDr djus gsrq fo”s"k inkf/kdkjh eaqxsj uxjikfydk }kjk Lohd`fr gsrq uxj fodkl foHkkx dks i= fy[kk x;k FkkA uxj fodkl foHkkx ls le; ij inksa dh Lohd`fr ds lEcU/k esa tcko ugha feyus ds dkj.k fo”s"k inkf/kdkjh] eqaxsj uxjikfydk }kjk fjDr inksa dks lekpkj i=ksa ds ek/;e ls foKkfir dj dqy 23 fofHkUu inksa ij fu;qfDr dh x;h gSA bl izdkj eqaxsj uxjikfydk }kjk o"kZ 1999 esa fjDr inksa ds fo:) fu;qfDr dh x;h FkhA mijksDr of.kZr rF;ksa ls Li"V gS fd fo”s"k inkf/kdkjh] eqaxsj uxjikfydk }kjk tks fu;qfDr;ka dh x;h gS os fjDr inksa ds fo:) dh xbZ fu;qfDr;ka gS fdUrq bu fu;qfDr;ksa esa fu/kkZfjr izfdz;k dk ikyu ugha fd;k x;k gS A“ Supplementary affidavit and counter affidavits have been filed on behalf of the parties. Counter affidavit filed on behalf of respondent No. 2 is also on record. Learned counsel for the petitioner submits that in the order impugned passed by the respondent No. 2, it has been found that the post on which the petitioners claim their appointment are/were sanctioned and vacant posts. This Court while remitting the matter back to the Government for passing order on their claims has already held that ban imposed by the Government in engaging/appointing new personnel for the Nagar Nigam would not be operative in the case of the petitioners since they claim to be appointed prior to the imposition of ban. It is also highlighted that after recording the facts appearing from the record and the claim of the petitioners, 5 the said respondent has abruptly in the concluding line held that the petitioners were offered appointed without adopting due procedure of selection and appointment. Learned counsel fairly states that in the counter affidavit filed by the said respondents, diverse submissions have been made but the order is silent. It is contended that the reasons given in the order cannot be supplemented by the facts averred in the affidavit filed in reply. In this connection, he relies on a judgment of the Supreme Court in the case of Mahendra Singh Gill versus Chief Election Commissioner and Ors since reported in A.I.R. 1978 S.C. 851. Learned counsel for the State, on the other hand, placed before this Court the counter affidavit. My attention was drawn to the averments made in paragraph 8 wherein diverse facts have been set out. Since those reasons are not reflected from the order impugned (Annexure-12), this Court, agreeing with the submission of the petitioners, is inclined to remit the matter back to the respondent authorities for passing fresh order in accordance with law as the conclusion arrived by the said respondent in the concluding paragraph of the order (Annexure-12) is not supported by reasons therefor. Diverse facts have been brought to the notice of this Court by way of supplementary affidavit but these facts are required to be considered by the respondent No. 2 while deciding on the claims of the petitioners. This Court, therefore, refrains from 6 expressing any view on these facts/issue lest it may prejudice the parties. In that view of the matter, this Court is inclined to remit the matter back again to the said respondent to pass fresh order in accordance with law within a period of eight weeks from the date of receipt/production of a copy of this order. Since the matter is now being remitted back to the respondent, this Court grants liberty to the petitioners to file fresh representation, if they so want, within a period of two weeks. The order contained in Annexure-12 shall not come in the way of respondent No. 2 from passing a fresh order in accordance with law. The application stands disposed of. pkj (Kishore K. Mandal, J.)