IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7562 of 2009 1. Rahul Ranjan Bakshi, son of Sri Shashi Kant Prasad, Account Assistant cum Data Entry Operator, Office of Block Resource Centre, Aurangabad (Bihar). 2. Rajesh Kumar Singh, son of Sri Bishwanath Singh, Account Assistant cum Data Entry Operator, Office of Block Resource Centre, Navinagar, Aurangabd (Bihar). 3. Ram Pravesh Singh, son of Sri Hari Pd. Singh, Account Assistant cum Data Entry Operator, Office of Block Resource Centre, Block Aurangabad (Bihar). 4. Deepak Kumar, son of Rameshwar Prasad, Account Assistant cum Data Entry Operator, Block Resource Centre, Barun, Aurangabad (Bihar). 5. Amresh Kumar, son of Sri Tulsi Singh, Account Assistant cum Data Entry Operator, Block Assistant cum Data Entry Operator, Block Resource Centre, Daud Nagar, Aurangabad (Bihar). 6. Arjun Prasad, son of Sudama Choudhary, Account Assistant cum Data Entry Operator, Office of Block Resource Centre (Kutumba Aurangabad). 7. Rabindra Kumar Rakesh, son of Ram Bilash Singh, Account Assistant cum Data Entry Operator, Office of Block Resource Centre, Rafiganj, Aurangabad (Bihar). 8. Pawan Mishra, son of Radha Mohan Mishra, Account Assistant cum Data Entry Operator, Office of Block Resource Centre, Goh (Aurangabad), Bihar. 9. Md. Neshat Haider, son of Sahubuddin, Account Assistant cum Data Entry Operator, Office of Block Resource Centre, Haspura, Aurangabad (Bihar). ------------- Petitioners Versus 1. The State of Bihar. 2. Principal Secretary, Human Resources Deptt., Govt. of Bihar, New Secretariat, Patna. 3. Director, Bihar Educatin Project, Beltron Bhawan, Bailey Road, Patna. 4. District Magistrate, Aurangabad (Bihar). 5. D.D.C. Aurangabad, Bihar. 6. District Superintendent of Education cum District Programme Co- ordinator, Bihar Education Project Aurangabad (Bihar). --------- Respondents --------- With Civil Writ Jurisdiction Case No.7771 of 2009 Prasant Kumar, son of Sri Abhay Narain Srivastava, R/o New Area Bipass Chowk, M.G.Road, Aurangabad (Bihar). At present, posted as a Data Entry Operator, Bihar Basic School, Education Project, Aurangabad (Bihar). ------- Petitioner Versus 1. The State of Bihar. 2. Principal Secretary, Human Resources Department, Govt. of Bihar, New Secretariat, Patna. 2 3. Director, Bihar Education Project Beltron Bhawan, Bailey Road, Patna. 4. District Magistrate, Aurangabad (Bihar). 5. D.D.C., Aurangabad (Bihar). 6. District Superintendent of Education cum District Programme Co- ordinator, Bihar Education Project Aurangabad (Bihar). --------- Respondents -------- With Civil Writ Jurisdiction Case No.8245 of 2009 Rita Kumari, Daughter of Raj Kishore Dubey, resident of Manjhiaon, P.S. Manjhiaon, Dist. Garhwa. At present posted as Steno cum Typist in the Basic School, Bihar Education Project, Aurangabad. -------- Petitioner Versus 1. The State of Bihar. 2. Principal Secretary, Human Resources Department, Govt. of Bihar, New Secretariat, Patna. 3. Director, Bihar Education Project Beltron Bhawan, Bailey Road, Patna. 4. District Magistrate, Aurangabad (Bihar). 5. D.D.C., Aurangabad (Bihar). 6. District Superintendent of Education cum District Programme Co- ordinator, Bihar Education Project Aurangabad (Bihar). --------- Respondents ------- 4 05.12.2011 Heard learned counsel for the parties including Mr. Girijesh Kumar appearing on behalf of the Bihar Education Project. At the outset, learned counsel for the petitioner appearing in CWJC No. 7578 of 2009 has submitted that the petitioner nos.1 and 2 have voluntarily left their services and as such, he does not intend to press this application on behalf of Rahul Ranjan Bakshi (petitioner no.1) and Rajesh Kumar Singh (petitioner no.2). 3 That being so, these writ applications, so far it relates to Rahul Ranjan Bakshi and Rajesh Kumar Singh, are dismissed as having become infructuous. These writ applications, which have been heard together in view of the same issue being involved in all of them. CWJC No. 7562 of 2009, which now has been pressed for remaining seven petitioners, namely, Ram Pravesh Singh, Deepak Kumar, Amresh Kumar, Arjun Prasad, Rabindra Kumar Rakesh, Pawan Mishra and Md. Neshat Haider, is directed against a show-cause notice dated 11.6.2009, whereby and whereunder, the steps were taken for giving them an opportunity of hearing as to why their services on the post of Class- III post in the Bihar Education Project in Aurangabad district should not be terminated. This Court by an order dated 8.7.2009 had stayed the operation of the aforesaid show- cause notice and, therefore, the petitioners of the first case CWJC No. 7562 of 2009 have still continued in service though even as per their own terms of appointment, their tenure of three years has come to an end on 13.7.2010. 4 In the remaining two writ applications CWJC No. 7771 of 2009 and CWJC No. 8245 of 2009 though the petitioners Prasant Kumar and Rita Kumari had moved this Court against their order of termination of service in Bihar Education Project in the Aurangabad district but this Court by separate orders dated 17.7.2009 and 19.5.2010 had stayed the operation of their removal from service. That is how the two petitioners claims that they are entitled to continue in service alike the petitioners of the first case though Prashant Kumar has also complained that the respondents had not complied the interim order of stay passed this Court on 19.5.2010. This aspect of the matter, however, is not involved in the case of the petitioner Rita Kumari who is said to be continuing in view of the stay order of her termination passed by this Court on 17.7.2009. Barring the aforesaid distinction of the stages, the facts of all these cases are absolutely identical and infact also lie in a very narrow compass. Under the Bihar Education Project, the appointment on Class- 5 III and Class-IV post is to be invariably made only on a fixed tenure basis by undergoing the prescribed procedure as laid down in the service regulation framed by the Direction of the Project. One of such requirement is that in such selection process, the State Project Director shall be associated as would appear from Regulation 12, which reads as follows:- “12. Selecting authorities and appointing authorities. (i) For Grade I & II posts, in the SLO and DLO a committee comprising the State Project Director, UNICEF nominee and Govt. of India representative will screen and recommend the names found suitable and after the approval of the Chairman the State Project Director or the District Programme Coordinator as the case may be will be the appointing authority, to be ratified by the State Executive Committee. (ii) In the case of Grade III posts, the selecting will comprise the nominee of the State Project Director, the Chairman District Level Ex. Committees and the Distt. Programme Coordinator. On the recommendation of this committee the District Programme Coordinator shall be the appointing authority’ within the approved strength. 6 (iii) For Grade IV posts within the sanctioned strength the Chairman of the Distt. Level Ex. Committee may constitute a committee from amongst the members of the District Ex. Committee and on the basis of the recommendation of this committee, the District Programme Coordinator may appoint For Grade III & IV posts in the SLO State Project Director will be appointing authority, within the sanctioned strength. (iv) All appointments to the Parishad by direct recruitment shall be limited to the Project period only. All appointment to the Parishad by deputation/Contract shall be limited to the period of deputatin/contract or till the end of the project period whichever is earlier.” In the case of the appointment petitioners, it was noticed that a District Superintendent of Education had sought to appoint the petitioners in the year 2007 without associating and/or seeking the services of the Director of Bihar Education Project or even his authorised representative. The successor District Superintendent of Education, Aurangabad, therefore having himself discovered that the appointment made by his predecessor was not only illegal but also in teeth of the Service 7 Regulations of the Bihar Education Project inasmuch as all such persons including the petitioners did not possesses the requisite qualifications as laid down in the advertisement had issued show cause notice to the petitioners and also had terminated the services of those where no order of stay had been passed. It is alleged by the petitioners that such action on the part of the successor D.S.E. was not only illegal but also malafide because appointment petitioners were made after not only undergoing the full process of selection but also by associating the Collector of the district as a Chairman of the Selection Committee. Normally in a dispute of this nature involving only fixed tenure appointment there could have been no occasion for interference by this Court inasmuch as, all the petitioners have already completed their fixed tenure of three years and eventually have no right to hold the post. It is, however, the specific case of the petitioners in all these cases duly asserted by their counsels that not only in Aurangabad district but even in other districts all over the 8 State where the Bihar Education Project is being carried out, period of such tenure appointment have been invariably extended and persons alike the petitioners are still continuing in service and, therefore, the petitioners could now not be discriminated specially whey they are also armed with the interim order of this Court protecting their service till the disposal of these writ applications. As noted above, there are mainly two alleged flaws in the appointment of the petitioners. Firstly that the State Director of the Bihar Education Project was not taken into confidence and such selection was illegally made at the district level without following the prescribed procedure as laid down in the Service Regulation. Secondly, it is also said that the petitioners do not possesses the requisite conditions as laid down in the advertisement and as such, their appointment itself is ab initio void. Considering the fact that the petitioners have been continuing in service till date on account of the interim order and that their counterpart in other district are 9 also still continuing in service despite their expiry of tenure, being limited for a period of three years, this Court in order to secure ends of justice would direct the State Director of Bihar Education Project to examine the actual requirement of services of the petitioners in the Aurangabad district and if he would find that the Aurangabad project is to continue, their services alike other districts with the benefit of extension of their terms shall also be continued at least till the next selection process is undertaken and/or the project itself is abolished only if their appointment is declared to be legal and valid. In order to examine the issue of validity and legality of appointment of the petitioner, the State Director in consolation with the Collector of the Aurangabad district, would get a selection test of these petitioners conducted strictly in terms of the advertisement and have those of the petitioners found to fulfilled all the requirement as laid down in the advertisement would be given the benefit of continuing in service till the project continues in 10 Aurangabad district or till an exercise is made for fresh appointment all over Bihar after removing the working persons. It is, however, made clear that the petitioners shall be under obligation to appear in the selection test as sought to be conducted under the order of the State Director and those who are found wanting in any respect of the mandatory requirement of the advertisement including the eligibility condition, would be removed from service by disclosing the specific reason for their removal. The petitioners or any one of them so retained in service after having fulfilled the test of eligibility as laid down in the advertisement would continue in service alike the counterparts continuing in other district with a similar benefit of extended tenure. This Court must make it clear that this exercise has been sought to be undertaken on account of the obvious infirmity in the show-cause notice and the order of termination passed in the case of petitioners Rita Kumar and Prasant Kumar, inasmuch as, in their show-cause notice, the 11 ground given was one that they had divulged the confidential information but in the impugned order terminating their service altogether different reasons have been into account, which by itself make such order bad in law as also in teeth of the principles of natural justice. The impugned show cause notice and/or order of termination in the cases of the petitioners are accordingly quashed. With the aforesaid observations and directions all these writ applications are finally disposed of. Rsh (Mihir Kumar Jha, J.)