IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1649 of 2002 Dilip Kumar, S/0. Shri Bhola Ram, resident of Mohalla – Kumhrar, Post – Lohia Nagar, P.S. – Agamkuan, District – Patna. ………………….Petitioner. Versus. 1. The State of Bihar. 2. The Director, Secondary Education, Bihar, Patna. 3. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 4. The District Education Officer, Sitamarhi. 5. The Regional Education Officer, Runni Saidpur, Sitamarhi. ………………..Respondents. ----------- Counsel for the Petitioner : Mr. Rajendra Prasad Singh, Sr. Adv. Counsel for the State : Mr. Sunil Kumar Mandal, SC-15. Mr. Arjun Prasad, JC to SC-15. ----------- 06 18.11.2008 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has prayed for quashing the memo no. 271 dated 10.02.1999 issued by respondent no. 3, the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, whereby the petitioner has been removed from the post of clerk on the ground of alleged illegality in appointment. The said order contained in Annexure-1, shows that pursuant to directions of the Director (Secondary Education) contained in letter no. 1445 dated 09.12.1998 documents relating to appointments in the first phase were required to be sent. Documents relating to some of the appointees were not made available. After calling for show cause from the concerned employees, eight in number including the petitioner and one Shankar Rajak, on a bald finding that their show cause was not found satisfactory their services were terminated. - 2 - On behalf of petitioner, it has been submitted that the case of Shankar Rajak came up for consideration before this Court in CWJC No. 2816 of 1999, which was allowed on 02.08.2001 vide judgment and order as contained in Annexure-13, after considering the stand of the State both on merits as well as on the issue whether the case of Shankar Rajak, which is admittedly similar to that of the petitioner could be distinguished from the case of other employees of the department terminated on similar grounds, such as Ravindra Kumar Tiwary, whose writ petition bearing CWJC No. 5003 of 1999 was allowed on 21.09.2000 (Annexure-12). It has further been submitted that the judgment in the case of Ravindra Kumar Tiwary, contained in Annexure-12, would show that this Court went into details and merits of the appointment procedure and held that the irregularities pointed out by the State did not go into the root of the matter and the appointment made after calling for name from the Employment Exchange and after selection by the Divisional Establishment Committee did not suffer from such illegality, which could warrant interference with the appointment on the ground that it was illegal. It was further submitted that vide Annexure-13, this Court allowed the case of similarly situated Shankar Rajak who was also removed from service by the same impugned order, contained in Annexure-1, by holding that his case materially stood on the same footing as that of Ravindra Kumar Tiwary. Learned counsel for the State has not disputed the aforesaid averments or the basic facts showing that the case of the petitioner - 3 - stands on the same footing as that of Ravindra Kumar Tiwary and Shankar Rajak. However, he has submitted that in case of an appointment suffering from inherent illegalities and unconstitutionality the earlier precedents must be treated to have lost their force on account of Constitution Bench judgment of the Apex Court in the case of Secretary, State of Karnataka and others versus Uma Devi and others reported in (2006) 4 SCC 1 and as enunciated and accepted by this Court in a judgment in the case of Anil Kumar Singh versus the State of Bihar, 2006(3) PLJR 551. The submission advanced by learned counsel for the State is sound in law but does not apply to the facts of the present case. In this case, as noticed earlier in the case of Ravindra Kumar Tiwary and followed in the case of Shankar Rajak, it has been held that the appointment process did not suffer from any illegality going to the root of the appointment process. Hence, in view of such finding of fact the petitioner’s case must be treated at par with the case of Shankar Rajak and Ravindra Kumar Tiwary. Following the judgments as contained in Annexures-12 and 13 this writ petition is also allowed. The impugned order dated 10.02.1999, as contained in Annexure-1 is quashed in respect of the writ petitioner. Trivedi/ (Shiva Kirti Singh,J.)