IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.35 of 2009 Akhilesh Kumar s/o Gauri Shankar Singh @ Gauri Shankar Yadav, resident of Tarachak, P.S. Danapur, District – Patna ………… Appellant Versus 1. The State Of Bihar 2. The Superintendent of Police (B), Special Branch, Bihar, Patna 3. The Director General of Police, Bihar, Patna 4. The Inspector General of Police, Bihar, Patna ………… Respondents --- For the appellant : Mr. Vindhyakeshri Kumar, Sr. Advocate Mr. Neeraj Kumar, Advocate For the respondents 1 to 4: Sri Arvind Ujjwal, SC XI Sri Rajesh Kumar Verma, JC to SC XI ----------- 2 28-01-2009 Writ petitioner – appellant aggrieved by the order dated 19th November, 2008 passed by the learned Single Judge in CWJC. No.1763 of 2002, has preferred this appeal under Clause – 10 of the Letters Patent. Short facts giving rise to the present appeal are that the brother of the writ petitioner – appellant (hereinafter referred to as the petitioner) was killed on 2nd April, 1996. On the death of the petitioner’s brother, namely, Anirudh Prasad Yadav, the then Chief Minister of the State had gone to the village and announced his appointment and compensation to the family. - 2 - Accordingly, by order as contained in memo dated 8th June, 1996, he was appointed temporarily as a Constable. Later on it was found that the petitioner’s appointment was not in accordance with law and, accordingly, after giving show – cause notice to the petitioner, he was removed from service. Petitioner challenged his removal from service by filing writ application, which has been dismissed by the impugned order. While dismissing the writ application the learned Single Judge has observed as follows: “Learned counsel for the State has sought the attention of this Court to earlier Division Bench judgment of this Court in the case of Hemkant Jha vs. State of Bihar, reported in 2007(3) PLJR 657, in which a batch of Letters Patent Appeal were decided by a detailed judgment. I was a member to that Division Bench and the said judgment is against the case of the petitioner. The subsequent Division Bench which has been annexed as Annexure -8 seeks to dismiss the LPA in limine and further it has not been noticed the earlier Division Bench judgment of this Court in the case of Hemkant Jha (supra). In such circumstances, it cannot be treated as a binding precedent.” Mr. Vindhyakeshri Kumar, appears on behalf of the petitioner. State is represented by Standing - 3 - Counsel – XI. It is not in dispute that the issue in question has been addressed in detail by a Division Bench of this Court in the case of Hemkant Jha vs. The State of Bihar & Ors., 2007 (3) PLJR 657, whereby it has been found that such appointment is de hors the appointment rules and orders of termination of such Constables have been held to be legal. In the said case the Division Bench has held as follows: “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 & 16 of the Constitution of India which permit only reasonable classification on permissible grounds and mandate same treatment to all persons belonging to the same class.” Mr. Kumar, however, submits that latest Division Bench decision dated 2nd July, 2008 of this Court in LPA. No.221 of 2008 (The State of Bihar & Ors. vs. Kamal Chandra Sah) has upheld the order of the learned Single Judge which had set aside the order of termination - 4 - of the Constable who was appointed in the like manner as that of the petitioner and, in that view of the matter, it is expedient that the matter be referred to a larger Bench. We are not inclined to charter this course. Undisputedly, the decision of the Division Bench in the case of Hemkant Jha (supra) covers the case of the petitioner and as such the order of termination cannot be said to be illegal. So far as the order of that Division Bench in the case of Kamal Chandra Sah (supra) is concerned, the same has been rendered without considering the earlier Division Bench judgment of this court in the case of Hemkant Jha (supra). Not only this in the case of Kamal Chandra Sah (supra) the Division Bench had dismissed the appeal in limine. In that view of the matter, it cannot be said that the judgment of the learned Single Judge has achieved the status of the judgment of the Division Bench. As the matter is squarely covered by the decision of the Division Bench of this Court in the case of Hemkant Jha (supra), we are of the opinion that the learned Single Judge did not err in dismissing the writ - 5 - application. We do not find any merit in the appeal. It is dismissed, accordingly, in limine. Neyaz/- C. K. Prasad, ACJ. S. K. Sharma, J.