IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1291 of 2009 DHARMENDRA KUMAR S/O SRI SHIV BACHAN SINGH VILL.- JAMALPUR, P.S.- KOILWAR, DISTT.- BHOJPUR … Petitioner/ Appellant Versus 1. THE STATE OF BIHAR, THROUGH THE PRINCIPAL SECRETARY, HOME (POLICE) DEPT., GOVT. OF BIHAR, PATNA 2. DIRECTOR GENERAL OF POLICE, BIHAR, PATNA 3. INSPECTOR GENERAL OF POLICE (ADMINISTRATION), BIHAR, PATNA 4. INSPECTOR GENERAL OF POLICE, DARBHANGA RANGE, DARBHANGA 5. DEPUTY INSPECTOR GENERAL OF POLICE, PURNEA RANGE, PURNEA 6. ADDITIONAL INSPECTOR GENERAL OF POLICE (RAIL), BIHAR, PATNA 7. DEPUTY INSPECTOR GENERAL OF POLICE (RAIL), BIHAR, PATNA 8. SUPERINTENDENT OF POLICE, KISHANGANJ, BIHAR 9. SUPERINTENDENT OF POLICE (RAIL), KATIHAR, BIHAR 10. DISTRICT MAGISTRATE, KATIHAR, BIHAR … Respondents/ Respondents ----------- For the Appellant : Mr. Shambhu Nath Thakur, Adv. For the respondents: Mr. R.C.P.Bharti, Adv. With Md. Aslam Ansari ----------- Present : HON'BLE THE CHIEF JUSTICE HON'BLE MIHIR KUMAR JHA, J. ----------- As per Mihir Kumar Jha, J. 1. Heard counsel for the parties. 2. In this intra-Court appeal the appellant- writ petitioner has called in question the order of the learned Single Judge dated 25.8.2009 in C.W.J.C. No. 10486/2009 whereby and whereunder his writ 2 application assailing the order of dismissal from service from the post of Constable dated 11.6.2002 has been not interfered with both on the grounds of unexplained delay over a period of seven years in filing of the writ application as also by taking into account that the appointment of the appellant- writ petitioner on the post of Constable was itself in the teeth of the statutory provisions. 3. The submission of Mr. Shambhu Nath thakur, learned counsel for the appellant- writ petitioner that though the order of dismissal of the appellant- writ petitioner from the service was passed on 11.6.2002, he had filed the writ application on 21.8.2009 on account of pendency of similar writ application does not appeal us and in this context we also approve the findings and reasonings of the learned Single Judge who has rightly placed reliance on the judgment of the Apex Court in the case of Bhoop Singh vs. Union of India & ors., reported in AIR 1992 SC 1414, wherein the Apex Court had held that challenge against the termination order made after a long gap without any cogent explanation for the inordinate delay caused in filing of the writ application could not be overlooked merely on the ground that 3 similarly placed dismissed constable had been reinstated. 4. We have, however, also gone into the merits of the case as was done by the learned Single Judge and we find that the appointment of the appellant- writ petitioner was made in teeth of the provisions of Rule 661 of the Bihar Police Manual requiring filling up of the post of constable only after advertisement and selection through a duly constituted Selection Board. It has to be noted that the appellant- writ petitioner came to be appointed on 26.3.1997 through backdoor only on account of his alleged act of bravery and exemplary services rendered to the police force. Such appointment however is not permissible under the Bihar Police Manual. This aspect of the matter infact stands settled by the judgment of the Division Bench of this Court in the case of Hemkant Jha & ors. vs. State of Bihar & ors., reported in (2007) 3 PLJR 657. The division Bench in the case of Hemkant Jha (supra) while considering exactly the same issue had held as follows: “14. In view of aforesaid discussions and findings it must be held that the appellants have failed to succeed in their challenge to orders of termination and have failed to show any right in themselves to hold the post of 4 Constables. The whole-some writ jurisdiction under Article 226, in the facts of the case, could not have been exercised in a different manner and there is no plausible ground to interfere with the orders under appeal or even to pass an order of remand of cases of some of the employees only for fresh consideration on the ground of lack of notice when cases of all the appellants admittedly stand on same footing, their services have been terminated on common grounds, the matter relates to large scale backdoor appointments and there is no personal and individual allegation against the employees. Judgments by single Judges on this issue are conflicting but the contrary view is not worth approval. 17. Before parting with this matter I feel compelled to observe that if the State Government feels that recruitment to the post of Constable in Police Force on special grounds such as bravery or extreme hardship due to injury to a brother while on duty in police force, is likely to enhance the efficiency or morale of Policemen, it may consider to frame rules for recruitment on such special grounds keeping in view the requirements of Articles 14 and 16 of the Constitution of India which permit any reasonable classification on permissible 5 grounds and mandate same treatment to all persons belonging to the same class.” 5. This Court is also informed by the learned counsel appearing on behalf of the respondents that the judgment of this Court in the case of Hemkant Jha (supra) has been approved by the Apex Court by dismissal of the Special Leave Petition filed by the affected persons. 6. In that view of the matter, we can also not now give any credence to a contrary view expressed by the learned Single Judge of this Court in the order dated 27.7.2006 in C.W.J.C.No. 3461/2004 (Kamal Chandra Sah vrs. The State of Bihar & ors.) which must be now held to be laying down an incorrect proposition in law in view of the judgment of Hemkant Jha (supra). In fact the following passage of the judgment of the learned Single Judge in the case of Kamal Chandra Sah (supra): “ … … It is true that the Government of Bihar, by making the Manual and by providing therein Rule 661B has directed all its officers including the Director General of Police to recruit constables in the manner as has been provided for in the said Rule. It is the Government of Bihar who has created that Rule and it is, therefore, open to 6 the Government of Bihar to make a departure from that Rule in appropriate cases and the same was done in the instant case by the Government of Bihar for the purpose of rewarding the petitioner for his bravery. It was unjust on the part of the police Department of the State to think that Government of Bihar cannot make a departure in an appropriate case. It is true that no officer of the Government of Bihar is capable of acting contrary in the said rule and, accordingly, no officer of the Government can give an appointment contrary to what has been prescribed in Rule 661B of the Manual. However, the Government of Bihar itself could make an exception and the same was done in the instant case. It must be kept in mind that the Manual, as it stands, is a creation of the Government of Bihar in its executive side and not of the Government of Bihar in its legislative side and, accordingly, executive Government of Bihar can always make an exception to Rule 661B of the Manual in deserving cases, but such exception must be made consciously and the same must be apparent on the face of the records.” is unsupportable in law, inasmuch as the Director General cum Inspector General of Police is not the State 7 Government. The Rules of recruitment under the Bihar Police Manual including Rule 661B lays down specific norms of appointment and any authority how so ever high being not vested with the power under the Bihar Police Manual to make an exception cannot over-ride the same. It is this aspect of the matter which has been gone into at length by a Division Bench of this Court in the case of Hemkant Jha (supra), which as noted above stands approved even by the Apex Court. We therefore overrule the aforesaid judgment in the case of Kamal Chandra Sah (supra). 7. In the result we find no merit in this appeal and the same is accordingly dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court Dated the 17th March 2010 A.F.R./Surendra