IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2366 of 2004 KRISHNA PRASAD BHAGAT, S/O SRI RAM CHANDRA BHAGAT, R/O VILLAGE-DALIA (DAM ROAD), P.O.- BAUSI, DISTRICT-BANKA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3. DISTRICT EDUCATION OFFICER, BANKA. ……………RESPONDENTS. ----------- For the petitioner : Mr. Ashok Kumar Choudhary, Adv. and Mr. Mithilesh Mowar, Adv. For the State : Mr. A. Amanullah (S.C.- 17), Mr. M.K. Pathak (A.C. to S.C.-17) and Mr. A.K.Prasad, (A.C. to S.C.-17). ------------ 4 12.10.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of Annexure-14 dated 1.11.2003 whereby, respondent no. 3, the District Education Officer, Banka has terminated the services of petitioner mainly on the ground that in appointment of the petitioner the procedure laid down in Government letter no. 16440 dated 3.12.1980 was not followed inasmuch as there was no advertisement, no interview, no preparation of panel and no roster clearance and, therefore, the same was in violation of provisions of Articles 14 and 16 of the Constitution of India. Petitioner’s case is that he is a matriculate of 1969 - 2 - and had acquired the knowledge of typing in 1980. In 1982 a direction was issued by the Education Commissioner to all the District Education Officers to fill-up the existing vacancies of sanctioned posts of Class-III of all schools. Pursuant to that respondent District Education Officer published a notice on the notice board of his office inviting applications from eligible candidates. As the vacancies were very few, no notice was published in the State level newspapers and names were called for from the Employment Exchange for consideration for appointment. Petitioner was registered in the Employment Exchange and his registration no. was 4228 of 1981. In response to the requests of respondent District Education Officer, name of petitioner and others were forwarded by the Employment Exchange. Thereafter interview was held and petitioner was found eligible for appointment on Class-III post. Accordingly, vide Annexure-1 dated 13.11.1982 petitioner was appointed on ad hoc basis for three months. Pursuant to the said appointment he joined his service on 16.11.1982. Thereafter by various orders his service was extended from time to time for three months and ultimately, vide Annexure-6 dated 16.7.1984, his service was extended till further orders pending appearance of the petitioner in the interview for his regular appointment. It is contended that petitioner repeatedly presented - 3 - himself before the authorities for interview but the said interview could not materialize for the reasons best known to the authorities. In the meanwhile, petitioner continued in service and under the orders of the competent authority, time to time, he was transferred from one school to the other. In 1989 he was allowed to take Hindi Noting and Drafting Examination which he passed and, vide Annexure-8 dated 21.3.1990, the Deputy Director, Rajbhasha issued certificate to the petitioner of having passed the Hindi Noting and Drafting Examination. In 1990 itself, an advertisement was published, namely, advertisement no. 38 of 1990 for recruitment on Class-III posts under the respondents. Petitioner applied in response to this advertisement also but the said process also did not reach its logical conclusion and matter remained pending before the respondents forever. In 1993, he was granted time bound promotion counting his services from initial date of joining i.e. 24.11.1982. Thereafter also he continued in service for almost ten years. It appears that under the orders of the Director, Secondary Education, respondent District Education Officer, vide Annexure-11 dated 13.9.2003, directed the petitioner to furnish his educational and typing certificates for verification, which he furnished by Anneuxre-12 dated 29.9.2003. Thereafter a formal show cause notice was issued to the petitioner and petitioner replied the same vide Annexure-13 - 4 - dated 14.10.2003. Ultimately, after consideration of his show cause the impugned order (Annexure-14) dated 1.11.2003 was passed terminating his services, in which it was held that the initial appointment of the petitioner itself was illegal, unauthorized and against the rules prescribed for the purpose and without adopting procedure for regular appointment, inasmuch as the procedure laid down in Government letter no. 16440 dated 3.12.1980 requiring for advertisement, interview, preparation of panel, compliance of reservations rules and roster clearance were not followed. Learned counsel for the petitioner submits that so far initial entry of the petitioner is concerned, the same was not illegal and void. He submits that, in view of very limited number of vacancies, respondent District Education Officer was authorized in law to issue a notice on the notice board, inviting applications and calling names from the Employment Exchange, and after holding interview of eligible candidates, referred to by the Employment Exchange and others, who submitted the application, he could make an appointment. He submits that this procedure was followed by the then District Education Officer in 1982 prior to his appointment. He submits that initially petitioner was appointed for limited period pending consideration of his regularization, which consideration was never made by the respondents. He submits that petitioner had already appeared before the - 5 - respondents for interview for his regularization and had also applied in response to the advertisement no. 38 of 1990, but the respondents failed in their duty to complete the process and consider the cases of eligible incumbents working in the department for their regularization or absorption. He submits that still petitioner was allowed to continue in services with time bound promotions etc. and, therefore, for all practical purposes, he was treated as regular employee. In this view of the matter, he submits that, the initial appointment of the petitioner can not be treated as illegal and void ab inito and, therefore, his case ought to have been considered in terms of the directions of the Constitution Bench of the Supreme Court as contained in paragraph 44 of State of Karnatka Vs. Uma Devi (3) reported in 2006 (1) SCC 663. Counter affidavit has been filed in the case disputing the claim of the petitioner. Learned counsel for the State submits that clearly the procedure for regular appointment laid down in Government letter no. 16440 dated 3.12.1980 was not followed in the matter of appointment of the petitioner. He submits that the very fact that the petitioner was appointed only for three months shows that it was just an ad hoc appointment by the respondent District Education Officer without following the procedure and, therefore, the petitioner could not be treated as regular appointee. He submits that at best he was required to appear in the - 6 - interview for his regular appointment in which he could claim a consideration on the basis of his long continuance in the department. He submits that the decision of the Hon’ble Supreme Court in the case popularly known as Uma Devi case has been held by the Apex Court in the case of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Ors. reported in 2009 (7) SCC 205 being operative retrospectively. Therefore, in view of illegal appointment of the petitioner, his case could not be considered for regularization in terms of said Constitution Bench judgment also. It is true that in matters of public employment on Class-III & IV posts, letter no. 16440 dated 3.12.1980 was in operation which required advertisement, interview, preparation of panel etc. for regular appointment on vacant sanctioned posts under the Government by a District Level Committee. This is also true that the said procedure was not followed at the time of appointment of the petitioner. However, as pleaded by the petitioner, some semblance of selection procedure was gone into at the time of appointment of the petitioner, inasmuch as in view of the limited number of vacancies, as claimed by the petitioner, a notice was published on the notice board and names were called for from the Employment Exchange. If this fact is true, it does appear that the then District Education Officer had adopted some procedure for appointment on Class-III posts and held some - 7 - interview in which petitioner was selected for his appointment. Learned counsel for the petitioner has submitted that, in the event of availability of only a few vacancies, for appointment on Class-III posts, this procedure was in vogue and adopted by the competent authority. From the show cause reply, filed by the petitioner, it appears that, this stand was not taken by him in his reply. Therefore, respondents District Education Officer had no occasion to examine this aspect of the matter and verify it from the records with regard to the correctness of the same. In that view of the matter, this Court is of the view that the matter of appointment and continuance of the petitioner should be reconsidered by the authorities after giving due opportunity to the petitioner to prove his case with regard to process of his initial entry in the service. While considering the same the authorities shall also take into account that in case petitioner’s appointment is found irregular and not illegal and he continued on the basis of same with the respondents for more than 20 years, he deserves to be regularized on the post in terms of the observations of the Constitution Bench in Paragraph 44. In the result, for the purpose as indicated above, Annexure-14 is quashed and the matter is remitted back to the competent authority to examine it afresh in the light of submissions and stand taken by learned counsel for the - 8 - petitioner before this Court. It will be appropriate that petitioner files an application for the purpose before respondent District Education Officer with certified copy of the orders of this Court, upon which he will fix a date in the matter and call for the petitioner to produce all documents and materials in support of his claim. Thereafter the same shall be considered and final orders shall be passed in accordance with law within two months from the date of appearing of the petitioner before him. In the result, this writ application is allowed with above observations and directions. Arvind/ (J. N. Singh, J.)