IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1178 of 2005 In (CIVIL WRIT JURISDICTION CASE 12232/1999) 01. The State Of Bihar through Secretary to Government 02. The Commissioner-Cum-Secretary to Government, Department of Animal Husbandry, Government of Bihar, Patna 03. The Director, Animal Husbandry Department, Government of Bihar, Patna Both serials 2 and 3 have their offices at Vikash Bhawan, New Secretariat Building, P.S.-Secretariat, Town and District- Patna 04. The Regional Director, Animal Husbandry At and P.S.- Muzaffarpur, District- Muzaffarpur 05. The District Animal Husbandry Officer, At & P.S.- Muzaffarpur, District-Muzaffarpur ….. Respondents/Appellants Versus Braj Kishore Prasad son of Sri Ramnandan Prasad, resident of village- Sohbarsha, Sah, P.S.-Maniari, District- Muzaffarpur ….. Petitioner/Respondent For the State:- Mrs. Namrata Mishra, G.P-17 For the Respondents:- Mr. Rajendra Pd. Singh, Sr. Adv. Mr. R.P. Biranway, Advocate ---------------------------------- 11. 12.08.2011 The instant L.P.A. has been filed against the order dated 6.5.2005 passed by the learned Single Judge in C.W.J.C. No. 12232 of 1999, whereby the appointment of the writ petitioner as Compounder in the Veterinary Hospital, Maniari has been upheld as valid with a direction to the Animal Husbandry Department to reinstate the petitioner with back wages w.e.f. his initial removal on 26.4.1996. 2 Learned counsel for the appellants Mrs. Namrata Mishra, G.P-17 submits that the learned Single Judge has failed to appreciate that the initial appointment of the respondent was itself not in accordance with law and not made against sanctioned post. She points out that the sanctioned post was that of Dresser-Cum-Compounder, whereas the Respondent has been admittedly appointed as a Compounder. She further submits that in any event the appointing authority for the post was the Director and not the Regional Deputy Director who did in fact appoint the respondent, and as such the appointment even on this score could not have been upheld. It is further stated that on the date of appointment, the post in question was not vacant inasmuch as it was held by one Vishwanath Prasad, who superannuated subsequently sometime in the year 1989, whereupon the post fall vacant. On the other hand, learned senior counsel Sri Rajendra Pd. Singh, appearing on behalf of the petitioner/respondent has refuted the proposition that the appointment was either illegal or irregular. He relies upon Letter No. 226 dated 20.5.1998 which enumerates the list of sanctioned posts, item 2 whereof is that of one Compounder. He points out 3 that the reference made by the learned counsel appearing for the State to Letter No. 8277 dated 30.7.1971 for the proposition that there was initially only one sanctioned post of Dresser-Cum- Compounder is mis-conceived for the reason that the said letter of 1971 deals with the case of pay- scale and not of the sanctioned posts. He further disputed the statement of the learned counsel for the State that the post of Compounder fell vacant in the year 1989 on the superannuation of Sri Vishwanath Prasad and for this purpose he leads us to Annexure-10 of the writ petition, being a letter dated 26.11.1987 issued by the Regional Director, which makes it clear that Sri Vishwanath Prasad superannuated on 31.05.1987 whereupon the sanctioned post of Compounder fell vacant. He therefore submits that no fault can be found in the writ petitioner‟s appointment. On the next question of the appointing authority, learned counsel for the respondent submitted that the power of appointment had been duly delegated to the Officers lower in rank to the Director, Animal Husbandry. On the objection of the learned counsel for the State that such delegation is only in respect of Class-III Ministerial staff which 4 term had to be understood as denoting purely „Clerical‟ staff in terms of Rule 30 read with Appendix-5 of the Bihar Service Code and would not apply to technical staff, he submits that there is no material to establish that Compounders would not come within the meaning of the term Ministerial staff, which expression has also not been elaborated in the State Government‟s notification dated 17.2.1962 (Annexure-B to the first supplementary counter affidavit). On the other hand, reference may be had of the, Rules for the Control, Administration, Maintenance and Management of the Hospitals Provincialised under Bihar Act VIII of 1944, Clause 41 whereof reads as follows:- “Clause 41:- The Compounders and Dressers shall work according to the routine prepared and maintained by the Deputy Superintendent with the approval of the Superintendent. They shall also be liable to perform such other duties as may be assigned to them by the Superintendent.” It has been submitted that it cannot be said that the nature of duties required to be performed by Compounder and Dresser could well be understood as Ministerial in nature and would be duly covered by the State notification. We find 5 considerable weight in this submission, as duties of the Compounder are nowhere specifically defined, and there appears hardly any material to suggest that their duties are in any way technical in nature. We have also carefully gone through the impugned order dated 6.5.2005 passed by the learned Single Judge and we find that a detailed speaking order has been passed after taking due note of the issues involved, the submissions of the parties as also the relevant decisions of this Court. It is noticed that in the case of one (Sudhanshu Shekhar Mallik Versus State of Bihar) C.W.J.C. No. 10695 of 1998, the delegation of the powers for appointment in terms of the Regional Director‟s Memo No. 2188 dated 18.3.1980 had been made co- terminus with the Board of Directors and such terms of delegation were withdrawn only on 21.2.1992, which therefore squarely covered the period during which appointment of the writ petitioner was made. The said order has in due course been upheld in L.P.A. No. 778 of 2008, when a Division Bench of this Court vide order dated 12.9.2003 has dismissed the said L.P.A. with costs of Rs.5000/-. Before parting with this L.P.A. however, we 6 must also take due note of the further submission of the learned State counsel that there was an existing ban in respect of appointments on daily wage basis in terms of Letter No. 10984 dated 12.12.1985 which had been issued by the Director Animal Husbandry Department and was very much in operation on 18.7.1988 being the date of the respondent‟s appointment. Such ban was effective up to 7.2.1989. In this view of the matter, the period commencing from 18.7.1988 when the writ petitioner was appointed on daily wage basis upto 27.2.1989 when his appointment was regularized on the post of Compounder may at best be treated as irregular. The case would therefore be one falling under the exception enumerated in (2006) 4 SCC 1 (Secretary, State of Karnataka & Others Versus Uma Devi (3) and Others), as elaborated in the later decision of State of Karnataka Versus M.L. Kesari (2010) 9 SCC 247, wherein it is explained that illegal appointments cannot be regularized, but that bar is not applicable in respect of irregularities. Accordingly the service during this period would not be counted for the purpose of calculating his entitlement for pensionary benefit. 7 In view of the fact that the respondent had been removed as far back as 26.4.1996, it is made clear that he would not be entitled to claim any arrears of salary from the date of his removal upto the date of reinstatement. However such period would be counted for the purpose of pension and other benefits. In the result, the order of the learned Single Judge is confirmed and the L.P.A. stands disposed of with the above observations. P.K. (T. Meena Kumari, J.) (Vikash Jain, J.)