IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.No.6887 of 2009 *** In the matter of an application under Article 226 of the Constitution of India *** 1. Rajeshwar Bhagat son of Late Bachchu Bhagat, resident of village- Dumduma Hassanpur, P.S. Vaishali, District Vaishali 2. Yugal Kishore Mishra son of Late Chandradeo Mishra, resident of village – Kartar Bazidpur, P.S. Patepur, District Vaishali……………………………………………….………..Petitioners Versus 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department, Bihar, Patna. 3. The Director, Secondary Education, Bihar, Patna. 4. The Deputy Director (Secondary Education), Bihar, Patna. 5. The District Education Officer, Vaishali at Hazipur…………………………………………………………..Respondents *** For the Petitioners: Mr. Binod Kumar Kanth, Sr. Advocate with Mr. Dilip Kumar Tewari, Advocate For the State : Mr. Sanjay Prakash Verma, A.C. to G.A. No.5 *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J. In this writ petition, the two petitioners have challenged the order dated 16.06.2008, passed by the Director, Secondary Education, Bihar, Patna, as contained in Annexure-14, by which appointment of the petitioners as well as nine others has been held to be illegal and has been cancelled. They have also challenged the appellate 2 order of the Principal Secretary of the Human Resources Development Department dated 06.04.2009, as contained in Annexure-15, by which their appeal has been dismissed. 2. Facts of the case are that the two petitioners were appointed on the post of peon in 1974 in the respondents. Petitioner no.1 was posted under Government High School, Bhagwanpur Ratti in Vaishali whereas petitioner no.2 was posted in the office of the District Inspectress of Schools, Muzaffarpur. Petitioners continued in the service and thereafter they were granted first time bound promotion with effect from 1984 on completion of ten years of service. It is not disputed that under Government Resolution, 25% posts in class III in all the office were to be filled up from eligible class IV employees. Accordingly, when process started for filling up of class III posts in Muzaffarpur district, petitioners submitted their applications for appointment on class III post in 1986. The date of interview was fixed and petitioners appeared in the interview. However, the matter remained pending and no decision was taken by the respondents. In the meanwhile, petitioners’ services were confirmed in class IV and they were 3 granted time bound promotion etc. also. The matter remained pending for quite a long time and again in 1993 interview was held for the same purpose in which petitioners again appeared. Finally, by orders dated 23.09.1996 and 27.08.1996, petitioners were appointed on class III posts and were posted in Government High School, Bhagwanpur Ratti and in the office of the Primary Teachers Training College, Surhattha, respectively. Their appointment to class III post was also confirmed. However, in 1997, petitioners as well as some other employees of class III and class IV working at the regional office of the Department were terminated by order dated 18.11.1997 passed by the Director, Secondary Education, on the ground that in their appointment, rules and procedure providing for advertisement and the recommendation by the selection committee etc. were not followed. 3. Persons aggrieved, including the two petitioners, moved this Court through CWJC No. 11800 of 1997. When the said case was taken up on 14.01.1998, respondents were allowed time to file counter affidavit and operation of the impugned order was stayed. Finally, the writ application was heard on 20.08.1999 and, by order as contained in Annexure-9, the impugned order of the Director 4 Secondary Education dated 18.11.1997 was quashed. Against the said order of the learned Single Judge, respondents moved in Appeal through L.P.A. 1237 of 1999 and other analogous appeals. The said appeals were heard and finally disposed of by order dated 07.10.2005, as contained in Annexure- 10, without interfering with the order of the writ court. However, the Division Bench allowed the respondents to proceed in the matter afresh in accordance with law. 4. As per liberty granted by the Division Bench, respondents issued a composite show cause notice to all the incumbents vide Annexure-12. In this notice, inter alia, it was mentioned that in the appointment of the said incumbents, procedure laid down in letter nos. 16440 and 16441 dated 03.12.1980 was not followed. By separate letter, as contained in Anenxure-13, petitioner and others were asked to appear before the Director, Secondary Education on the date fixed for hearing of the matter. After hearing the parties, the impugned order as contained in Annexure-14 was passed by the Director in which he held the appointment of all the eleven incumbents as illegal on account of the breach of the Government letters laying down the manner and mode of 5 appointment on the public post. Petitioners and others moved in Appeal which was also rejected by the Principal Secretary of the Human Resources Development Department as contained in Annexure- 15. 5. Learned senior counsel for the petitioners submits that out of eleven incumbents, one had moved this Court through CWJC No. 12716 of 2009. In the said writ application, this Court found that the impugned orders lacked consideration of the relevant materials placed by the petitioner before the authorities and, therefore, they suffer from the vice of arbitrariness. Accordingly, the said order of the Director dated 16.06.2008 and the order of the Principal Secretary dated 6.04.2009 were set aside by order dated 08.10.2009, as contained in Annexure-26. He also submits that, although the petitioners were never issued show cause notice in respect of any alleged infirmity in their initial appointment as peon made in 1974, but the Director, Secondary Education, has found their initial appointment also as bad and has cancelled the same also. He, therefore, submits that, at the first instance, the orders suffer from violation of the Principles of Natural Justice. He also 6 submits that for holding appointment of the petitioners on class IV post as contrary to rules and regulations of appointment on class IV posts, the Director, Secondary Education has relied upon the resolution of the Government bearing no. 16440 and 16441 dated 3.12.1980 which was not at all applicable in their cases. He submits that the petitioners’ initial appointment was made in 1974 and these resolutions came in 1980 and, therefore, the same cannot be made to operate retrospectively so as to find their appointment in 1974 itself bad. He further submits that from bare reading of the impugned orders of the Director, Secondary Education as well as that of the Principal Secretary, it will be apparent that consideration of cases of eleven incumbents was made on omnibus basis and with a general finding that their appointments were not made in terms of the Government circular. He further submits that petitioners were later on confirmed in the service and they were allowed time bound promotion also as confirmed employee. Therefore, their services could not be terminated without complying with the provisions of Article 311 (2) of the Constitution of India. 6. Counter affidavit and supplementary 7 counter affidavit have been filed by the respondents in the case. Learned counsel for the respondents submits that petitioners’ appointment was found to be contrary to the rules and regulations of the Government laid down for appointment on class IV posts also. Therefore, while finding the appointment of the petitioners on class III posts as bad, the authorities also found their initial appointment on class IV posts also bad. Therefore, besides their appointment on class III posts, their initial appointment on class IV post was also cancelled. In the counter affidavit, detailed reasonings and reference to Government letters have been made. 7. In order to appreciate submissions of learned counsel for the respective parties, this Court has examined the impugned orders passed by the Director, Secondary Education as contained in Annexure-14 and the appellate order passed by the Principal Secretary as contained in Annexure-15. The impugned order as contained in Annexure-14 shows that the Director, Secondary Education has noticed the service history of eleven incumbents whose cases were under consideration before him. This Court finds that out of eleven incumbents, cases of these two petitioners were of their 8 appointment on class III posts from class IV posts within the 25% quota fixed for the same; the cases of 5 incumbents were of their appointment on class IV posts; cases of some other incumbents were of their appointment directly on class III posts. Thus, before the Director, appointment of three different categories of employees was for consideration. The order shows that after noticing the nature of the appointment and posts held by all of them, general consideration was made and a general finding has been arrived at by the Director in respect of their illegal appointment. On the basis of the said consideration and finding, the Director, Secondary Education has found their appointment/promotion as illegal and has passed orders of termination of services of all the eleven employees. But the order does not show that the cases of appointment of these petitioners on class IV posts were specifically considered and law as applicable to them in respect of their appointment at the relevant time was taken note of. The said order shows that only resolution of the Government for appointment on class III post which was taken into consideration was resolution no.16441 dated 3.12.1980. Undisputedly, the same was not applicable in the 9 case of appointment of the petitioners on class IV posts made in 1974. Besides this, it also could not be disputed by learned counsel for the State that no show cause notice whatsoever was given to the petitioners in respect of the validity of their appointment on class IV posts in 1974. The fact that petitioners were confirmed in service is also not disputed. Respondents have accepted in the counter affidavit that on the basis of their interview held in 1986, petitioners’ cases were considered for promotion/appointment on class III posts and the orders were issued in 1996. Once this is admitted that the order of appointment/ promotion of the petitioners which was issued in 1996 was issued on the basis of their interview held in 1986, it goes without saying that eligibility of such persons had to be considered and examined as per law prevalent in 1986. Reference to a resolution no.335 dated 16.09.1992 providing for Limited Competitive Examination for appointment/promotion to class III posts from class IV post within 25 per cent quota, made by the Director, Secondary Education in the impugned order is, therefore, misconceived. 8. The order of the appellate authority as contained in Annexure-15 is also on the lines 10 of the finding of the Director, Secondary Education. In his order, the appellate authority has noticed the order of the Department contained in letter no.3435 dated 13.08.1974 but has not dealt with in his order as to how appointment of the petitioners on the post of peon in 1974 was made in violation of the said Government letter. Moreover, it is worthwhile to notice that the petitioners were appointed on the post of peons initially by orders dated 19.07.1974 and 11.07.1974, respectively, whereas this letter noticed by the appellate authority is dated 13.08.1974. Clearly, before the said order dated 13.08.1974 was issued, the process of appointment of the petitioners on the post of peons was complete. There is no notice whatsoever in either of the orders as to which law or executive instruction was in operation at the time of initial appointment of the petitioner as peon and in what manner the same should be violated. Although, it is not a settled law that in case of a confirmed employee, even if it is found that his initial appointment was illegal, the procedure laid down under Article 311 (2) of the Constitution of India, has necessarily to be adopted before termination of his service, but 11 this much is certain that in the case of a confirmed employee, this much has to be considered whether his case falls within the exception laid down by the Constitution Bench in the case of Secretary of Karnataka Vs. Uma Devi [2006 (3) PLJR (SC) 363], or not. Learned senior counsel for the petitioner has not advanced any submission on these lines and therefore, this Court refrains from making any further consideration on this aspect of the matter. 9. In the circumstances, this Court finds that the Director, Secondary Education as well as the Principal Secretary of the Human Resources Development Department have completely misdirected themselves by not considering the individual cases of the petitioners in specific reference to the law/instructions/resolutions applicable at the relevant time for their appointment on class IV posts and the letter applicable at the relevant time for appointment/promotion from class IV posts to class III posts under 25% quota. Hence, this Court finds that the orders of the Director, Secondary Education as well as the order of the Principal Secretary as contained in Annexures-14 and 15, respectively, are unsustainable in law so far as these petitioners are concerned. 12 10. As a result, this writ application is allowed and the impugned orders as contained in Annexures 14 and 15 are quashed to the extent the same applies to the petitioners. As a consequence of quashing of the orders, petitioners shall be allowed to rejoin their duty on class III posts with all consequential benefits, positively, within three months from the date of receipt/production of a copy of this order. (Jayanandan Singh, J.) Patna High Court, Patna The 17th August, 2010 N.A.F.R. (B.T.)