IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 1509 of 2006 Prabhat Kumar Gupta, son of Sri Anandi Lal Sah, resident of village – Sondho Kahar Toli, P S – Goroul, District – Vaishali - Petitioner Versus 1 The State of Bihar 2 The Director (Secondary Education), Bihar, Patna 3 The District Education Officer, East Champaran at Motihari 4 The Headmistress, Project Girls High School, Harsidhi, East Champaran 5 The Regional Deputy Direction of Education, Tirhut Division, Muzaffarpur - Respondents *** For the petitioner - Mr Rajendra Prasad Singh, Sr Advocate With M/s Dilip Kumar Tiwari, Mohini Kumari and Krishna Kant Tiwari, Advocates For the S t a t e - Mr Prabhat Kumar Singh, Advocate *** 8 01.04.2011 The petitioner challenges the order of the District Education Officer (DEO), East Champaran at Motihari dated 26.02.2005 (Annexure- 7). By the said order, petitioner’s services have been terminated on the ground that the Regional Deputy Director of Education (RDDE) was not the competent authority to make appointment of personnel to the Project Schools. Essentially what is sought to be conveyed is that the respondent- RDDE is the competent authority for appointment to Divisional Cadre but Project Schools, being in the District Cadre, it was the DEO who was competent for making appointments in the Project Schools which were in the District Cadre. As the pleadings are complete, with consent of parties, the writ petition has been heard at length for disposal at this stage itself. On 14.01.1987, in the Bihar Gazette, an advertisement was issued for the purposes of appointment of Clerks in the office of the 2 Education Department in Tirhut Division. This advertisement was issued by the RDDE and, as apparent, pertains to appointment in Divisional Cadre. Petitioner, alongwith large number of other persons, applied. After due interview and Typing Test, a panel of over 100 candidates was prepared. The Divisional Establishment Committee then approved the panel and recommended for appointment from the said panel. It appears that out of the panel, in which petitioner was 04th in the seniority, about 39 persons, in order of seniority of empanelment, were picked up for appointment. Without any discernible rationale, some were posted in the office of the Project Schools and some were posted in the office of various establishments of the Education Department in the Division. At this stage, it may be noted that Project Schools were created in or about 1981 by the State Government and fall within District Cadre. The petitioner has annexed his appointment letter which is Annexure-5 dated 28.12.1987. A reference to the appointment letter would show that it is in two parts, one appointment pursuant to selection and another posting. I have noted this distinction because this is very important and relevant which fact the authorities, from time to time, tend to forget for reasons best known to them. The petitioner having been posted in the Project School ostensibly on the ground that at that time, there were large scale vacancies in the Project school. This led to some problem when it came to payment of remuneration of petitioner and some others who were similarly selected and posted in Project Schools. This led the petitioner and one another Ajay Kumar Roy who is at serial No 37 in the merit list and petitioner who was at serial No 4 on the final merit 3 list to come to this Court in CWJC No 9721 of 1993 which was disposed of by a Division Bench by order dated 17.11.1993. Division Bench noticed that consequent to their selection, they were deputed to the Project Schools and, as such, were entitled to remuneration. It is apparent from reading the said order (Annexure-6) that the confusion about status of petitioner’s posting/deputation to Project School was raised and this Court clarified that the authorities must post the two petitioners and similar other persons to some other place where no such confusion may arise in future and they may be allowed to work and receive their monthly salary in a smooth manner. I would once again note that the confusion apparently was that selection of the petitioner and his appointment was in the Divisional Cadre but he was posted outside the Divisional Cadre that is in the District Cadre. This is the confusion, which this Court clarified, was required to be removed. It was elementary that the only thing that was required to be done was to post the petitioner and his like to posts in the Divisional Cadre and if that was done, at that time itself, there would have been no confusion, no litigation in this regard. Neither the State nor its officials nor this Court would have been required to waste its time again and again upto the Apex Court in the matter but this was never done at least so far as petitioner was concerned. I may at this stage itself note that petitioner has clearly pleaded, which has not been denied or contradicted, that several persons, who were so initially posted in Project Schools, were, upon objection, shifted to Divisional Office or other Establishments in Divisional Cadre. So much so that some, who were similarly sought to be terminated on 4 ground of wrong posting, were also regularised by being adjusted in Divisional Cadre. This, not having done in the case of petitioner, has ultimately led the petitioner to be dismissed itself. Petitioner, with reference to the pleadings at different places, has filed details of candidates appointed so far as petitioner is aware which would show that several persons had been shifted from Project School to offices and their services have not been interfered with but merely because petitioner, even though fourth in the merit list, was not adjusted and, accordingly, he is being terminated itself. The stand of the State in the counter affidavit is that the petitioner was posted in Project School by the RDDE who had no authority in respect thereof and, as such, petitioner’s appointment was bad. On straight query by this Court as to whether State challenged the authority of the RDDE to issue the Gazette Notification, the answer was no. As to the creation of panel consequent to selection, was there any illegality, the answer was no. As to the final selection of the 39 persons on the merit list whether there was any illegality, the answer is no. The illegality starts when it goes to posting after selection. The plea of the State is that Project Schools being in the District Cadre, RDDE, who was the controlling authority for Divisional cadre, he could not have posted people in the District Cadre, on the face of it, in my view, the objection of the State is not to selection and/or appointment but to posting. It is well known that selection, appointment and posting are three different stages and three different concepts. A wrong posting cannot invalidate selection or appointment. A wrong appointment can invalidate posting but cannot 5 invalidate selection. A wrong selection would invalidate all. Now one more aspect needs to be taken care of. It appears, as noted above, the petitioner and one Ajay Kumar Roy had moved this Court for their salary which writ petition was disposed of, as noted above, with also a direction to the State to provide suitable posting to remove the confusion in future. Pursuant thereto, petitioner was not touched. He continued in the Project School but Ajay Kumar Roy was posted in the office of the District Superintendent of Education. Again, a dispute arose as to which cadre he belongs to. The said Ajay Kumar Roy came to this Court in CWJC No 5746 of 2000 disposed of on 05.01.2004 wherein this Court held him to be appointee in the Project School and, as such, in the District Cadre. The said Ajay Kumar Roy preferred Letters Patent Appeal against the said judgment being LPA No 455 of 2004 which was disposed of on 01.07.2004. This Court remitted the matter to the Secretary, Department of Human Resources (Secondary Education) to decide the matter about cadre of the said Ajay Kumar Roy and others. The decision of the Secretary dated 10.05.2005 has been brought on record as Annexure-21 which is not disputed by the respondents. The decision clearly is that the petitioners were appointees in the Divisional Cadre and not District Cadre. Now, I must come back to the impugned order (Annexure-7) of the DEO. The DEO clearly holds that the Project Schools were under the control of the DEO and beyond the control of the RDDE who was controlling authority for the Divisional Cadre. He goes on further to hold that in view of the aforesaid, the appointment of the petitioner to the 6 Project School was beyond the jurisdiction of the RDDE and, as such, the appointment of the petitioner was per se illegal and, thus, terminated. In my view, the order is wholly fallacious and cannot be sustained. The reasons are simple. Firstly, as noticed above, the Secretary of the Department, upon remand by this Court, has clearly held that petitioner’s appointment was to Divisional Cadre. This order of the Secretary of the Department has never been challenged nor questioned by the State. Thus, on the face of it, it cannot be urged that the appointment of petitioner was invalid. The appointment was by the RDDE in the Divisional Cadre after following due procedure established by law. What was bad was the posting of petitioner in the Project School that is outside the Cadre. As noticed above, the appointment letter of the petitioner would show that he was appointed and then was posted to the Project School. Thus, what was wrong was posting and not appointment and on this short issue itself, the order impugned cannot be sustained for a wrong posting. The appointment itself cannot be questioned or cancelled. It was incumbent upon the authorities to correct their own mistake and post petitioner accordingly which has been done in several other similar cases but why petitioner was left out is anybody’s guess. Persons, much junior to the petitioner, have been retained in service though they were empanelled in the same selection process and appointed in the same transaction merely because they were posted in offices under the Divisional Cadre. In my view, a wrong posting cannot vitiate the appointment. It would have been a totally different matter if the RDDE had advertised for appointment to the post of Project School which is not the case in the present. In this 7 connection, I can only refer to the often quoted passage from the judgment of Chief Justice Chagla in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” I may also notice one another fact. It may be noted that two persons, who were similarly appointed, namely, Mohan Prasad Singh who is at serial No 13 in the merit list and Sunil Kumar Singh who is at serial No 31 in the merit list and who was posted in Project School, were both terminated on similar ground by the Director, Secondary Education. They preferred writ petitions being CWJC No 782 of 1998 before this Court and the writ petitions filed by them were allowed by this Court and their termination orders were set aside. They have been reinstated in service. State, being aggrieved, preferred Letters Patent Appeal and Special Leave to Appeal to Supreme Court without success. State then points out that pursuant to different actions taken by the authorities now the matter is being enquired into at the level of RDDE against about 17 persons. I cannot comment upon that but I can 8 only say that such enquiries cannot be left pending ad infinitum especially when there is hardly any issue to enquire into left. In that view of the matter, I am left with no option but to allow the writ petition, set aside impugned Annexure-7 being the order of DEO terminating the services of the petitioner. Petitioner would be deemed to be in continuous service with all other consequential benefits. It is further directed that the petitioner would be forthwith posted in any commensurate vacant post in the Divisional Cadre to avoid all future confusions in this matter which direction was issued almost two decades ago by this Court and which has remained uncared creating all confusion. Accordingly, I quash the impugned order, as contained in Annexure-7, including orders mentioned and referred therein in that regard. M.E.H./ (Navaniti Prasad Singh)