IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9191 of 1996 INDRADEO KUMAR SINGH, son of Shri Satrudhan Prasad Singh, resident of village: Khairi, P. S. Khanpur, District- Samastipur… Petitioner. Versus 1. STATE OF BIHAR 2. The Secretary and Commissioner to Govt. Deptt. Of Human Resources, Govt. of Bihar, Patna. 3. The Director, Primary Education, Govt. of Bihar, Patna. 4. The Special Director, Primary Education, Govt. of Bihar, Patna. 5. The Regional Deputy Director of Education, Darbhanga Division, Darbhanga. 6. The District Education Officer, Samastipur. 7. The District Suptd. Of Edcucation, Samastipur. … Respondents. ----------- 15. 29.06.2010 Heard Mr. Gyanendra Rai, learned counsel for the petitioner and learned counsel for the State. Initially the prayer of the petitioner in this writ petition was as follows:- “1. That, this writ application has been filed for commanding the respondents to regularize the service of the petitioners on the sanctioned and vacant post of Assistant Teacher in Govt. Basic School, Morwa (Sarai Ranjan) in the District of Samastipur, in view of continuous service of the petitioner rendered from 5.5.1986 to this date without there being any break or interruption. This writ application has also been filed for commanding the respondents to make payment of arrears of salary as well as current salary and allowances etc. and other consequential benefits admissible to the petitioner under law with effect from January, 1989 when the salary of the petitioner was illegally stopped by the respondent- 2 authorities. It is relevant to state here in this connection that the petitioner was appointed as Assistant teacher in Govt. Basic School, Morwa in the District of Samastipur, in the Matric trained scale vide Memo No. 118 dated 13.4.86 issued under the signature of District Education Officer, Samastipur, on the basis of the aforesaid letter of appointment, the petitioner joined on the post of Assistant Teacher on 5.5.86 and is discharging his duties and function continuously without any break or interruption from the date of joining. It is further relevant to mention here that payment of salary and allowances etc. was made to the petitioner from 5.5.86 to December, 1988. Thereafter the salary of the petitioner was illegally stopped by the respondent no. 4 on the ground that the District Education Officer was not competent to make appointment of petitioner on the post of Assistant Teacher in the basic school. It is further relevant to state here in this connection that similarly situated persons like the petitioner had filed a writ application in the Hon’ble Patna High Court being C.W.J.C. No. 7194/94, which was disposed of vide order dated 31st. August, 1995 and in the light of direction given in the aforesaid order and in light of order given by special Director, Primary Education vide No. 896 dt. 7.12.95, services of petitioners of CWJC No. 7194/94 have been regularized by the Regional Deputy Director of Education, Darbhanga Division, Darbhanga but the services of the petitioner has not been regularized although the case of the petitioner stands on similar footing as that of the writ petitioners of C.W.J.C. No. 7194/94.” 3 It appears that during the pendency of the writ petition an order was passed on 14.8.2006 by the concerned authority wherein the District Education Officer, Samastipur in his letter to the Headmaster of Basic School Morwa, Samastipur apart from giving other instructions and directions had also directed him not to take work from the petitioner. Such order of the District Education Officer was made subject matter of I. A. No. 5394 of 2006 and this Court by order dated 2.2.2007 had only allowed the said I. A. No. 5394 of 2006 and thereafter by a separate order dated 30.5.2007, the operation of the order dated 14th August 2006 as contained in Annexure- 20 with regard to stopping taking work from the petitioner, during the pendency of this writ petition, had been stayed. Today when the case has been taken up for final hearing, Mr. Gyanendra Rai, learned counsel for the petitioner would submit that when the petitioner was admittedly appointed by an authority on the basis of having valid qualification of being graduate trained, this Court after almost admitted continuance of 24 years should direct for regularizing the service of the petitioner. 4 In this context, he also relies on certain orders passed by this Court whereby persons similarly situated as the petitioner have been regularized when this Court had only directed the authority to consider their cases. In the opinion of this Court, while the issue with regard to regularization can only be considered if there was some curable infirmities but then if the petitioner’s appointment was void ab initio, as it appears from the very look of the order of his appointment, it would be very difficult for this Court, keeping in view the judgment in the case of Secretary, State of Karnataka & Ors. vs. Uma Devi (3) & Ors. , reported in (2006) 4 SCC 1 to issue a direction for regularization of service of the petition inasmuch as it is quite apparent from the order of appointment of the petitioner that neither any advertisement nor any process of selection for complying the mandatory requirement of Articles 14 and 16 was ever gone into. A question, however, would still arise that even when such illegality has been perpetuated and continued for a period of 24 years, can such person be denied payment of salary for the work which was being 5 taken from him at least from 1986 to 14.8.2006. From the pleading on record, it becomes clear that at least there was no infirmity in taking work from the petitioner from 5.5.1986 to 14.8.2006 and therefore if there be also a proof of his continuous working then irrespective of the fact that his such appointment was illegal or irregular, he would be at least entitled for payment of salary for the admitted period of his working. Moreover, if the petitioner was appointed by a specific appointment letter by the competent authority, and has continued in service for a period of 24 years, his service can only be terminated by a specific order. Admittedly, no such order of termination of service has been passed in the case of the petitioner till date as there is no counter affidavit filed by the respondents denying this fact specifically asserted by the petitioner in his writ petition. Counsel for the State, however, submitted that the payment of salary of the petitioner was stopped in the month of December 1988 and therefore this writ petition filed after eight years of the cause of action and that too in the garb of regularization of service should not be entertained. 6 In the opinion of this court, while the prayer for regularization of the petitioner has to be considered by the competent authority namely, Regional Deputy Director of Education in the light of rules and regulations and if it was found that there was some inherent flaw in the appointment of the petitioner, he would issue a show- cause notice to petitioner for terminating his service and after hearing him as also considering his reply, if any, would pass an appropriate order. If on the other hand, the petitioner can demonstrate that the persons like him have been regularized in service and that the petitioner was possessing at all point of time the required qualification for the post, it would be open for the authority, namely, R. D. D. E to pass an order either regularizing the service of the petitioner or appointing him afresh without giving any benefit of previous service as has been done in the case of other similarly situated persons i.e. the petitioners of CWJC No. 7194 of 1994. It is, however, clarified that in the event, the service of the petitioner is regularized only by way of fresh appointment from the date of the order of R.D.D.E., Darbhanga by condoning the earlier infirmity or lapse in 7 the appointment of the petitioner he will be eligible for the benefit of past service only for the purpose qualifying service for the payment of his retirement benefit. As these aspects need to be gone into by the authority namely, R.D.D.E, Darbhanga, the petitioner may approach the said authority by filing a fresh representation enclosing all the relevant documents on which he would place reliance either for the purpose of regularization or payment of salary within a period of three months from the date of receipt of this order. In the event such a representation is filed by the petitioner, the authority, R.D.D.E, Darbhanga, will pass a reasoned order in next three months in accordance with law on such a prayer of the petitioner with regard to either regularization or payment of his salary and will also ensure payment of arrears of salary for the admitted work done by him. It is made clear that till the disposal of the representation of the petitioner, the interim order passed by this Court on 30.5.2007 as with regard to restrain from taking work from the petitioner with the consequential benefit of payment of salary during January 1989 to this day or till he would continue in service in terms of this 8 order within the same time frame i.e. six months from the date of receipt/production of a copy of this order shall continue. With the aforementioned observation and direction, this writ petition is disposed of. kanchan (Mihir Kumar Jha, J.)