IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1813 of 2007 1. SANJAY KUMAR, SON OF LATE SUKHDEO PRASAD, AT PRESENT RESIDING AT DISTRICT INSTITUTE OF EDUCATON AND TRAINING CAMPUS, PANCHAYATI AKHARA, P.S. KOTWALI, DISTRICT GAYA. 2. SAMIR KUMAR, SON OF LATE BHAGAT SINGH, RESIDENT OF MOHALLA SACHIWALAYA COLONY, A/25, KANKARBAGH, P.S. KANKARBAGH, DISTRICT PATNA. 3. SHIVSHANKAR PRASAD, SON OF SHRI VISHWANATH MAHTO, RESIDENT OF VILLAGE SARILCHAK, P.S. NALANDA, DISTRICT NALANDA. 4. ASHOK KUMAR, SON OF LATE SUKHDEO SHAW, RESIDENT OF MOHALLA CHANDMARI ROAD, P.S. KANKARBAGH, DISTRICT PATNA. 5. RAMESH CHAUDHARY, SON OF SHRI VISHWANATH CHAUDHARY, RESIDENT OF VILLAGE BELAUR, P.S. UDWANTNAGAR, DISTRICT BHOJPUR(ARA. 6. KAMLESH KUMAR, SON OF SHRI RAMADHAR SINGH, RESIDENT OF VILLAGE CHATRA, P.S. AURANGABAD, DISTRICT AURANGABAD. 7. ARUN KUMAR SINGH, SON OF SHRI RANJAN PRASAD SINGH, RESIDENT OF VILLAGE GARDH SASAI, P.S. VIDYAPATINAGAR, DISTRICT SAMASTIPUR. 8. AVINASH KUMAR, SON OF SHRI BAIJU PRASAD, RESIDENT OF VILLAGE NERU, P.S. SARE, DISTRICT NALANDA. Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, SECONDARY EDUCATION, GOVERNEMNT OF BIHAR, PATN.A 2. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, MAGADH DIVISION, GAYA(HEREINAFTER REFERRED TO AS R.D.D.E.) 4. THE DISTRICT SUPERINTENDENT OF EDUCAITON, AURANGABAD, DISTRICT AURANGABAD(HEREINAFTER REFERRED TO AS „THE D.S.E.‟) 5. THE DISTRICT EDUCATION OFFICER, AURANGABAD, DISTRICT AURANGABAD. 6. THE SUB-DIVISIONAL EDUCATION OFFICER, AURANGABAD. For the petitioner : Mr. Shivendera Kishore, Advocate. For the State : Mr. Arjun Prasad Singh, AC to SC-2 ----------------------- 03. 09.08.2011 Heard learned counsel for the petitioners and the State. 2. Petitioners at the relevant time served as Clerk in the different offices under the Regional Deputy Director of Education, Magadh Division, Gaya. They have filed this writ petition challenging the office order bearing Memo No.942 dated 24th November, 2006, Annexure-21, 2 whereunder the earlier office order terminating the services of the petitioner bearing Memo No.488 dated 21st April 2005, Annexure-15 has been affirmed observing that petitioner nos.1 to 4, 6, 7 were appointed as Clerk in the different offices under R.D.D.E., Magadh Division, Gaya without observing the procedure required for such appointment, as is provided under letter no.16441 dated 3.12.1980 of the State Government. Petitioner no.5 was initially appointed by the R.D.D.E., Tirhut Division, Muzaffarpur as Clerk in one of the offices under the R.D.D.E., Muzaffarpur, thereafter transferred to one of the offices under Magadh Division, Gaya. Petitioner no.8 was appointed as Peon in one of the offices of the Magadh Division by the R.D.D.E., Gaya without following the norms for such appointment. 3. Counsel for the petitioners challenged the aforesaid order dated 24.11.2006, Annexure-21 submitting that circular letter no.16441 dated 3.12.1980 referred to in the impugned order dated 24.11.2006, Annexure-21 has no application and relevance in the matter as petitioners were appointed on the basis of the recommendation of the District Establishment Committee constituted in terms of the Rules framed for appointment of ministerial staff in the Education Department named as Ministerial Staff Service Condition 3 Rules, 1974(hereinafter referred to as the “Rules”) framed in terms of the power vested in the State Government under Article 309 of the Constitution of India notified vide G.S.R. 3435 dated 13.08.1974. Perusal of Rule 7 of the aforesaid Rules further indicates that a committee of officers is required to be constituted by the State Government for making recommendation for appointment on the ministerial post of the Education Department available in each cadre of the Division. The committee is to be headed by the R.D.D.E. of the Division as Chairman, Principal of the training college established in the Division, together with three seniormost District Education Officers posted in the Division are the members of the committee. Rule 8 provides that the committee constituted under Rule 7 shall make recommendation for appointment on the ministerial post of the Education Department available in the Division. With reference to the aforesaid Rule 7 and 8 it is submitted that petitioners were appointed on the ministerial post of Education Department available in the Division on the basis of the recommendation made by the committee after committee had issued notice for such appointment on the notice board. It is further submitted that petitioners served for more than 10 years from the date of their initial appointment, whereafter the first termination order dated 4 21st April, 2005, Annexure-15 was passed holding their appointment as made without observing the Rules of recruitment. 4. Aforesaid order dated 21st April, 2005 was challenged before this Court by filing C.W.J.C. Nos.12388, 12234 both of the year 2004. Both the writ petitions were heard together and disposed of under orders dated 19.04.2006, Annexure-16 whereunder the earlier termination order was set aside granting liberty to the authorities to proceed afresh against the petitioners after giving them sufficient opportunity of being heard. In the light of the aforesaid order, Annexure-16, opportunity of being heard was granted to the petitioners by the authorities and the impugned order dated 24.11.2006, Annexure-21 has been passed holding the appointment of the petitioners as violative of circular letter no.16441 dated 3.12.1980, inasmuch as appointment of the petitioners was made without advertisement and conducting selection process. Counsel for the petitioners submitted that reference of the circular letter no.16441 dated 3.12.1980 in the impugned order is wholly misconceived as the same has no application to the facts of the case in view of the provisions of the Rules. Learned counsel further submitted that petitioners having worked for more than 10 years from the date of 5 initial appointment until the first termination order was passed against them without the benefit of any interim order passed by any court are required to be considered for regularization as their appointment may be irregular made without advertisement but as the petitioners were appointed by the competent authority against sanctioned post, they possess minimum qualification required for the post and served on the post for more than 10 years without the protection of the stay order granted by any court, they are qualified for regularization in the light of the orders of the Hon‟ble Supreme Court in the case of Secretary, State of Karnataka Versus Uma Devi(3), reported in 2006(2) PLJR Supreme Court 363, paragraph-53 which has also been relied upon and explained in the subsequent Supreme Court judgment in the case of State of Karnataka and Ors. Versus M.L. Kesari and Ors. 2010(6) Supreme 262, paragraphs-4 and 5. For ready reference paragraph-5 of the said judgment is quoted hereinbelow :- “ It is evident from the above that there is an exception to the general principles against regularization‟ enunciated in Umadevi, if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post 6 without the benefit or protection of the interim order of any court or tribunal. In others words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision(rendered on 10.4.2006). (emphasis supplied) Aforesaid judgment has been followed by the 7 Division Bench of this Court in the case of The State of Bihar and others Versus Binay Kumar Singh, 2011(3) PLJR 547 and in the case of The State of Bihar Versus Anil Kumar Verma, 2011(3) PLJR 545. 5. Counsel for the State has opposed the prayer. He states that in terms of Rules-7, 8 of the Rules appointment has to be recommended by the committee constituted by the State Government under Rule 7 after due advertisement and completion of selection process for appointment on the ministerial post of Education Department available in the Division. In the instant case, from the records of the writ petition, it does not appear that petitioners were recommended by the committee constituted under Rule-7 that too after advertisement and undergoing selection process, as such, only because they(petitioners) served for more than 10 years before the issue of the first termination order, Annexure-15 they cannot claim regularization in the service. 6. Counsel for the petitioners in rejoinder submitted that the notification constituting the committee under Rule-7 by which petitioners were recommended for appointment must be with the authorities and petitioners not being the custodian of the official records cannot produce such notification. It is further submitted that this Court may 8 remand the matter to the authorities in the Education Department who shall call for the copy of the notification constituting the committee under Rule-7 from the Regional Deputy Director of Education and if the authorities are satisfied that petitioners were recommended for appointment by the committee constituted by the State Government under Rule 7 of the Rules and that the petitioners possess qualification for being appointed on the ministerial post of the Education Department then only their case for regularization be considered in the light of the judgment in the case of Uma Devi(supra) duly explained by the Hon‟ble Supreme Court in the case of M.L. Kesari(supra) as it is not in dispute that petitioners served on the post for more than 10 years without the protection of stay order by any court or tribunal until issue of the first termination order against them. 7. Having heard counsel for the parties as also having considered the import of Rule-7, 8 of the Rules, I set aside the impugned order dated 24th November, 2006, Annexure-21 and remit back the matter to the Director, Secondary Education, Govt. of Bihar, Patna who shall first verify from the records as to whether the committee which recommended the petitioners for appointment on ministerial post was duly constituted by the State Government in terms 9 of Rule 7 of the Rules. If the recommendation for appointment of the petitioners was made by the said committee, the Director will find out whether petitioners possess minimum qualification for the post on which they were appointed and if these two facts are found in favour of the petitioners, the authorities will consider whether petitioners had served on ministerial post for more than 10 years without the protection of any court order and if all the three characteristics noted above are found present in the case of the petitioners, the case of the petitioners shall be considered for regularization in the light of the observation of the Hon‟ble Supreme Court as made in paragraph-5 of the quoted judgment in the case of M.L. Kesari(supra). Entire exercise in compliance of my order be conducted by the Director, Secondary Education, Govt. of Bihar, Patna as early as possible, in any case within three months from the date of receipt/production of copy of this order before the Director, Secondary Education. 8. The writ application is, accordingly, disposed of. AFR Rajesh/ ( V. N. Sinha, J.)