IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.867 of 2007 Mahesh Kumar Ojha, Son of Late Uma Shankar Ojha, Resident of village and P.O. Rampur Atauli, P.S. Hisuapur, District Saran at present working as discharged peon of the Project Girl’s High School, Subhadra Jamunia, West Champaran. Versus 1. The State of Bihar through the Secretary-cum- Commissioner, Department of Secondary Education, Bihar, Patna. 2. Director Secondary Education, Bihar, Patna. 3. Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 4. District Education Officer, West Champaran. 5. Head Master Project Girls’ High School, Subhadra Jamunia, West Champaran, Bettiah. ----------- For the Appellant : Dr. Sadanand Jha, Sr. Advocate, Dr. M.P. Shukla & Mr. Pankaj Kumar Pankaj For the Respondents 1 to 5: Mr. Sunil Kumar Mandal, S.C.XV ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 26th November, 2008. The appellant is an unsuccessful petitioner. He filed a writ petition before this Court for quashing the order dated 12th June, 2000 whereby his services as Peon in the Project Girls’ High School, Subhadra, Jamunia, West Champaran came to be terminated by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 2. For the sake of convenience, we shall refer the appellant ‘the petitioner’. It is the petitioner’s case that in the Project - 2 - Girls’ High School, Subhadra, Jamunia, West Champaran in the year 1993, there was vacancy of one post of Peon. The District Employment Officer, Motihari sent three names (including the petitioner) to the Regional Deputy Director Education, Tirhut Division vide his letter dated 5th June, 1993 for filling up the said post. On 23rd December, 1993, the District Level Establishment Committee, inter alia, considered the subject and recommended five names, including that of the petitioner, for appointment to the post of Peon. The Committee authorised the Regional Deputy Director Education to issue appointment order. Consequent upon the decision taken by the District Level Establishment Committee, the Regional Deputy Director Education, Tirhut Division, Muzaffarpur issued office order on 30th January, 1994 appointing the petitioner to the post of Peon in the pay scale of Rs.775-12-955-14-1025 purely on temporary basis in the Project Girls’ High School, Subhadra, Jamunia, West Champaran. The petitioner claims to have joined as Peon at the said Project Girls’ High School on 31st January, 1994. In the year 2000, it transpired that the petitioner got his appointment de hors existing circular issued by the State government for recruitment of Class IV employees. Consequently an inquiry was instituted against the petitioner for having secured appointment illegally and in breach of the existing recruitment circular. On conclusion of the inquiry, it was found that the petitioner’s appointment was not in conformity, rather it was in breach of government circular No. 16441 dated 3rd - 3 - December, 1980 and consequently, vide order dated 12th June, 2000 passed by the Regional Deputy Director, Education, his services were terminated. As indicated above, it is this order which was challenged by the petitioner by filing writ petition before the Court. 3. Respondent no. 4, namely, the District Education Officer, West Champaran filed counter affidavit in opposition to the writ petition. He set up the plea that the appointment letter on the basis of which the petitioner has been claiming his appointment was a fabricated document. According to him, as per the aforenoticed circular dated 3rd December, 1980, the post was required to be advertised by the then District Education Officer/Regional Deputy Director Education but that was not done. There was no request to the District Education Officer for appointment to the post of Peon in the said project school. The petitioner had not applied for appointment nor he was called for an interview. It was also stated in the counter affidavit that panel of candidates in each district is required to be prepared and from such panel existing vacancies in Class IV have to be filled. As per respondent no. 4, the petitioner’s name does not seem to find place in the panel prepared at the district level. 4. The petitioner filed rejoinder on 16th August, 2007 and reiterated its stand set up in the writ petition. 5. The Single Judge heard counsel for the parties and held that the vacancies were required to be advertised and given wide publicity but since that was not done, the petitioner’s appointment was - 4 - not legal. The Single Judge also held that the petitioner was never an applicant and he got employment through back door and, therefore, the order of termination was not bad. It is this order passed by the Single Judge on 20th September, 2007, that is impugned in the present appeal. 6. Dr. Sadanand Jha, senior counsel for the appellant strenuously urged that there is no provision that the vacancies had to be advertised. According to him, the petitioner’s name was recommended by the employment exchange which is a permissible mode for appointment to the post of Peon in the Education department or for that matter in the Project Girls’ High School and the name sent by the employment exchange was considered by the district level committee and upon recommendation of that committee, the Regional Deputy Director of Education issued an appointment order and, therefore, proper procedure was followed and it cannot be said that the petitioner’s appointment is illegal merely because the authorities did not advertise the post. Senior Counsel submitted that advertisement may be a better mode of inviting applications for appointment but that is not the only mode. According to him, one of the prescribed modes of appointment being through employment exchange and that mode having been followed, the petitioner’s appointment cannot be said to be illegal. He would, thus, submit that the Single Judge seriously erred in holding that since the post was not advertised, the petitioner’s appointment was illegal. - 5 - 7. We bestowed our anxious consideration to the submissions of the senior counsel. As a matter of fact, there is no challenge that the appointment to Class IV posts in the State government at the relevant time was governed by the circular 3/R- 103/73 Personnel –16441 dated 3rd December, 1980. That the said circular dated 3rd December, 1980 was applicable for appointment of Class IV employee in the Project Schools of the State government is also not in dispute. The said circular is in Hindi and, therefore, we do not intend to reproduce it as it is. However, suffice to say that the said circular provides that Class IV posts would be filled up through the district employment exchange. A panel of candidates for appointment to Class IV employees shall be prepared at the district level which shall be operative for one year. After advertisement, the District Magistrate shall examine the applications. Every application shall contain registration number from the employment exchange. For filling up the vacancies in Class IV posts, a committee shall be constituted whose Chairman shall be the District Magistrate of the district. Such committee shall comprise of the District Welfare Officer, District Employment Officer, three senior officers nominated by the District Magistrate and two persons nominated from the concerned department dealing with the district level welfare affairs. The circular also provides that the appointment shall be made in accordance with the circular. 8. The question that falls for our determination is : is the - 6 - appointment of the petitioner to the post of peon vide order dated 30th January, 1994 issued by the Regional Deputy Director Education, Tirhut Division, Muzaffarpur at Project Girls’ High School, Subhadra, Jamunia, West Champaran is legal? 9. We assume that the appointment letter dated 30th January, 1994 is not fabricated. Even then, on the face of the case set up by the petitioner in the writ petition, it can safely be said that the procedure for employment provided vide circular 16441 dated 3rd December, 1980 for appointment to Class IV post has not at all been followed. There has been wholesale departure from the procedure provided in the said circular while appointing the petitioner to the post of peon. It is not even the case of the petitioner that a panel for filling up the vacancies of Class IV posts in the district of West Champaran was prepared. Even if we assume that panel was prepared, there is nothing to show that his name was included. Moreover, the said circular provides that the vacancies should be advertised. This is an admitted case that the vacancy against which the petitioner has been appointed was not advertised at all. It is true that as per the said circular, the appointment to Class IV posts in the State government has to be made through employment exchange but then there is a procedure required to be followed after the names from the district employment exchange are received. The whole idea of the procedure prescribed in the circular dated 3rd December, 1980 is to curb the tendency of nepotism and favouritism and eliminate unfairness and - 7 - that there is transparency in the appointment procedure and available vacancies are known to the people in the local area to enable them to apply for such posts. 10. In the present case, as we have noticed above, the procedure prescribed in the circular 16441 dated 3rd December, 1980 has been followed more in breach and, therefore, the order dated 12th June, 2000 to the extent the petitioner’s services have been terminated cannot be legally flawed. However, the Regional Deputy Director of Education was not justified in his order dated 12th June, 2000 in directing recovery of the salary paid to the petitioner during the course of his employment. Except bald statement in the counter affidavit that the petitioner has fabricated the appointment order, there is no material that may justify or prove this allegation. The Single judge has also not found that the order of appointment dated 30th January, 1994 has been fabricated by the petitioner or that he was party to any forgery or misrepresentation. The petitioner has already suffered as his services have been terminated since the authorities failed to follow the procedure prescribed for appointment to Class IV posts. In our view, despite the fact that his appointment was not legal, the petitioner is entitled to wages/pay during the period he worked. There is, thus, no justification in the direction contained in the order dated 12th June, 2000 that the salary paid to the petitioner be recovered. 11. In view of our foregoing discussion, letters patent appeal is partly allowed. In so far as, the order dated 12th June, 2000 - 8 - passed by the Regional Deputy Director Education directing recovery of wages paid to the petitioner is concerned, it is set aside. The order of the Single Judge stands modified to that extent. The rest of the order of the Single Judge as well as the office order dated 12th June, 2000 passed by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur are maintained. 12. We observe, in the light of the prayer made by the senior counsel that in case the petitioner applies for relaxation of age to the concerned authorities for any future employment with the Government of Bihar, the order dated 12th June, 2000 passed by the Regional Deputy Director of Education shall not be an impediment in seeking such relaxation. The parties shall bear their expensae litis. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-