IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9405 of 1997 DEBA NAND MISHRA, son of Late Jnardan Mishra, resident of Mohalla- Belisara within the town of Motihari, P.O. and P.S. Motihari, District- East Champaran, permanent resident of village- Babhangama, P O. Babhangama, P S Bihpur, District Bhagalpur…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Director, Secondary Education, Government of Bihar, Patna. … Respondents. With CWJC No.9337 of 2002 AZAZUL HAQUE, son of Md. Fida Husain resident of village- Gaira, P O. Korwa Police Station and District- East Champaran (Motihari)… Petitioner Versus 1. THE STATE OF BIHAR 2. The Additional Secretary Secondary Primary and Adult Education Department, government of Bihar, Patna. 3. The Director, Secondary Education, Government of Bihar, Patna. 4. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, District- Muzaffarpur. 5. The District Education Officer, Motihari District- Motihari. 6. The Principal, Government District School, Motihari. … Respondents. ----------- For the Petitioners : Mr. Bindhyachal Singh, Advocate Mr. Ranjan Kumar Jha, Advocate For the Respondents : Mrs. Nutan Kumari Sharma, A.c. to G.P.-15 Mr. Sumir Kumar Mandal, A.C. to S.C.-15 --------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (27.07.2010) Mihir Kumar Jha, J. Heard Mr. Bindhyachal Singh and Mr. Ranjan Kumar Jha, learned Counsel for the petitioners, Mrs. Nutan Kumari Sharma, A. C. to G. P. 15 and Mr. Sumir Kumar Mandal, A. C. 2 to S.C. 15 in these two writ petitions. 2. The prayer of these two writ petitioners in these two writ petitions basically is for quashing of an order dated 23.8.2000 by which their earlier regularization as a Class IV employee in Zila School, Motihari has been sought to be rescinded. Nonetheless, as the two petitioners have framed their relief in a different manner, it would be necessary to quote the relief as prayed for by them in paragraph 1 of their respective writ applications. 3. In CWJC No. 9405 of 1997, the prayer of the petitioner reads as follows;- “1. That this writ application is being filed for issuance of a writ in the nature of certiorari quashing the order bearing memo no. 1036 dated 31st July, 1997 issued under the signature of the Director, Secondary Education, Bihar, Patna by which order, the Director, Secondary Education, in fact, has violated the order of this Hon‟ble Court passed in C.W,J.C. No. 12374 of 1995 disposed of on 15.5.97 and further for issuance of a writ in the nature of mandamus commanding the respondents to pay the salary of the petitioner in terms of memo no. 317 dated 22.5.93 issued under the signature of the Addl. Secretary, Human Resources Development, Department, Government 3 of Bihar, Patna with compound interest.” 4. However, the petitioner, Azazul Haque in CWJC No. 9337 of 2002 has made following prayer; “I) For issuance of a writ in the nature of certiorari or any other appropriate writ for quashing of the letter no. 404 dated 23.8.2000(Annexure-13) issued under the signature of District Education Officer, East Champaran, Motihari, to the Additional Director, Secondary Education, Bihar, Patna where in it has been communicated that the petitioner is not entitled for the salary. II) For issuance of a writ in the nature of certiorari for quashing letter no. 293 dated 10.7.1995 issued by Additional Secretary, Government of Bihar. Whereby principal of the Government High School, Mohhari has been directed to revoke the order of regularization of petitioner contained in letter no. 317 dated 22.5.93 and as such it was accordingly revised. III) For issuance of a writ in the nature of mandamus or any ther appropriate writ to commanding the respondents to confirm/regularize the services of the petitioner on the post of contingent Mineal and to pay the salary and other consequential benefits for the total period to the petitioner in terms of Memo No. 317 dated 22.5.1993 issued under the signature of Additional Secretary, Government of Bihar.” 5. Since both the writ petitions were clubbed together at the time of admission of 4 these cases, they have been heard together and are being disposed of by this common order. 6. Counsel for the petitioners in support of the aforementioned prayer would submit that once the State Government had taken a decision to sanction 252 posts of the Government Girls and Boys High School as also in Primary Teachers Training College with a view to regularize the existing employees and the same also contains the name of the petitioners, any decision taken subsequently by the two impugned orders either dated 31st July 1997 in the case of petitioner, Deba Nand Mishra or the order dated 23.8.2000 in the case of petitioner, Azazul Haque cannot be sustained inasmuch as the earlier decision was taken by the State Government whereas later decision was taken by individual officers not authorized to annul the decision of the State Government. Counsel in both the cases have also submitted that once earlier order dated 10.7.1995 was quashed in the writ petition filed by the petitioner, Deba Nand Mishra, CWJC No. 12374 of 1995 by an order 5 dated 15.5.1997 the same could not have been again made the basis for revival of the same earlier decision. In this context a further plea has been raised on behalf of both the petitioners that they have admittedly worked in the Zila School and as such they cannot be deprived the payment of salary for their admitted period of continuance in service. 7. Counsel for the State on the other hand by placing reliance on the counter affidavit filed in CWJC No. 9405 of 1997 ( in the case of petitioner Deba Nand Mishra) has submitted that it was an act of fraud and forgery on the part of the Headmaster of the School to have included the name of the petitioners in the series of regularization which was meant only for Menial Staff working in the Zila School. In this context, it has been stated that as a matter of fact there were only six sanctioned menial staff in Zila School and it was the subsequent Headmaster who had inserted the name of the petitioners in the category of Menial Staff while sending detail at the time when regularization was being considered by the State Government. 6 Thus, counsel for the State in both the cases have basically concentrated as with regard to manner of appointment of the petitioners and their specific case is that their back door appointment meant only for Cycle Stand on fixed remuneration did not give them any right to be regularized. Explaining this aspect, counsel for the State would also submit that once it is found that the very appointment of the petitioners was in teeth of Article 14 and 16 of Constitution of India, they would not be entitled for payment of any salary and for this purpose reliance has been placed on the judgment of the Apex Court in the case of State of M. P. & Ors. Vs. Lalit Kumar Verma, reported in (2007) 1 SCC 575. 8. In the considered opinion of this Court, the Zila Schools being the Government Schools have a prescribed procedure of appointment well defined under statutory rules of the year 1973 and the same envisages not only the R.D.D.E. of the respective division to be the appointing authority but also its routed through a Committee 7 consisting the R.D.D.E. as its Chairman and three senior most District Education Officers to be its members. Appointment in class IV posts have to be made strictly as per norms laid down in Government Resolution No. 16441 dated 3.12.1980 authorising the Collector of the District to make a combined panel and send it to the requisitioning appointing Authority for making such appointment. Additionally, the requirement of such rules for appointment is that there must be a sanctioned post which also must be advertised in newspapers for its wide publication and must be followed by prescribed norms of selection process so as to ensure the fulfilment of mandatory requirement of Article 14 and 16 of the Constitution of India. 9. It must be noted here that the petitioner, Deba Nand Mishra has not produced his appointment letter. The appointment letter of the petitioner Azazul Haque by itself would be sufficient to show that an incompetent authority namely, Headmaster of the Zila School Motihari under the orders of 8 the Regional Deputy Director of Education had issued the appointment letter. It would be difficult for this Court therefore to approve such appointment when it is found that the same was not made by Competent Authority and in fact without any advertisement or selection. The Headmaster who had not only made their appointment against unsanctioned posts inasmuch as it has been clearly asserted in the counter affidavit by the respondent in the case of Deba Nand Mishra that there were only six sanctioned posts on which six persons were already working but he had also made an addition in the appointment letter of the petitioner Azazul Haque that his appointment was subject to approval of the Government and his payment of remuneration could only be made on the head of Cycle Stand which would be later on adjusted from the head of contingency. Normally, such appointment letter by itself would be sufficient to show that the Headmaster of the school had tried to create a backdoor entry for both the petitioners inasmuch as in the counter affidavit this 9 aspect has been clarified in the following terms; “5. That it is stated that the list of contingent menials were called for from different schools. The then Principal of Zila School, Motihari, Sri S. Z. Faridi sent a list of 6 contigent menials to R.D.D.E. (Muzaffarpur) on 23.01.91 in which the names of Devanand Mishra was not shown. 6. That on in response to Director, Secondary Education Patna vide his letter dated 22.2.91 the then Principal Sri Indradeo Thakur sent a list of 8 persons adding the names of Devanand Mishra and Ejanul Hassan on 6.9.91. On perusal of that letter is evident that two names were included by manipulation and with malafide intention of giving Govt. job to both of them. 7. That on the basis of the list manipulated by overwriting already submitted to the Govt. by the then Principal Sri I. D. Thakur on 6.9.91, Govt. regularized all the 8 contigent menials (including two added names) by letter No. 317 dated 22.5.1993 and order of payment was made subsequently. 8. That the then Principal retired on 31.1.93. The new incharge Principal Sri Kedar Mishra took over the charge. He found that Devanand Mishra and Fjanul Hussan never worked as Contingent menial and their names appeared in the list of appointment of contingent menials as regular Govt. servant only because of the submission of wrong and distorted information, facts and figures by the then Principal Sri I.D. Thakur, so Sri Kedar Mishra put up the real facts for direction and tried to obtain a fresh order in the list of the facts submitted this time.In 10 absence of fresh direction, the salry of Devanand Mishra was not encashed. 13. That the petitioner again filed CWJC No. 8049/97 before the Hon‟ble High Court. The facts regarding the case are as follows:- (i) Petitioner never worked as contingent manial and never got any payment as a contingent manial. (ii) petitioner was a cycle stand keeper. (iii) A contingent menial and a cycle stand keeper are two different things. Contingent manials are appointed against sanctioned posts and payment is made from Govt. allotment under the head „Majdoori‟ on monthly basis with pay D.A. H.R.M. A. Etc. where as a cycle stand keeper comes under local arrangement, be keeps the cycles of day schalars safe and he gets his remuneration on the basis of daily wages payment for each separate day at therate fixed for at the end of each month. And petitioner was also paid accordingly. His payment was made from cycle stand Fund collected from students and he was paid only for those days on which to was engaged in the work of a cycle stand keeper. His payment was made on last working day of the month. (iv) That the petitioner was paid remuneration at the rate of Rs.360 per month from July 1990 on last working days of each month whereas other 6 menials were paid with pay D. A. M. A. and H. R., drawn from treasury and disbursed on the receipt of allotment. 14. That bare perusal of the records reveals that the then Principal tried to accommodate Sri Devanand Mihsra and Fzamul Hassan in Govt. Job for which to manipulate and adopted undesirable measures. He did all this with on malafide intention or providing 11 undue advantage to his co-villager or near relation Sri Devanand Mishra. This was illegal. On perusal of issue register of letters it is apparent that the letter number of appointment itself has been manipulated as it appears to be an insertion. His name in the list is also added subsequently. There are glaring examples of forgery done by the then Principal Sri. I. D. Thakur.” 10. The facts mentioned in the counter affidavit have not been controverted by the petitioners and therefore it would become clear that it was one Principal I. D. Thakur who was author of these two illegal appointments and was basically responsible for appointing and/or continuing both the petitioners in Zila School in violation of the statutory rules regarding appointment of Class IV posts in Zila School as also the constitutional guarantee under Articles 14 and 16 of the Constitution of India. In this context this court must notice the law laid down by the Apex Court in the case of State of Bihar Vs. Upendra Narayan Singh reported in (2009) 5 S.C.C. 65 wherein under somewhat similar circumstances it was held that:- "The ratio of the abovenoted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty 12 bound to notify the vacancies to the employment exchange concerned so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the employment exchange concerned and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television. Notwithstanding the basis mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoils system which prevailed in America in the 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of he country who are forced to seek intervention of the court and wait for justice for years together. With a view to insulate the public employment apparatus in independent India from the virus of spoils system, the framers of the Constitution not only made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted a separate part i.e. Part XIV with the title "Services under the Union and the States". Article 309 which finds place in Chapter 1 of this part envisages enactment of laws by Parliament 13 and the State Legislatures for regulating the recruitment and condition of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Proviso to this article empowers the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and the Governor of a State or such person as he may direct in the case of services and posts and in connection with the affairs of State, to make rules regulating the recruitment, and the conditions of service of person appointed, to such services and posts till the enactment of law by the appropriate legislature. However, the hope and expectation of the framers of the Constitution that after independence every citizen will get equal opportunity in the matter of employment or appointment to any office under the State and members of civil services would remain committed to the Constitution and honestly serve the people of this cou8ntry have been belied by what has actually happened in last four decades. The Public Service Commissions which have been given the status of constitutional authorities and which are suppose to be totally independent and impartial while discharging their function in terms of Article 320 have become victims of spoils system. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant 14 rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution. Thousands of cases have been filed in the courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by the virus of spoils system in different dimensions and selections have been made for considerations other than merit. Unfortunately, some orders passed by the courts have also contributed to the spread of spoils system in this country. The judgments of 1980s and early 1990s show that this Court gave expanded meaning to the equality clause enshrined in Articles 14 and 16 and issued directions for treating temporary/ad hod/daily-wage employees on a par with regular employees in the matter of payment of salaries, etc. The schemes framed by the Governments and public bodies for regularization of illegally appointed temporary/ad hod/daily-wage/casual employees got approval of the courts. In some cases, the courts also directed the State and its instrumentalities/agencies to frame schemes for regularization 15 of the services of such employees. In State of Karnataka V. Umadevi(3) reported in (2006) 4 S.C.C. 1 the Constitution Bench considered different facets of the issue relating to regularization of services of ad hoc/temporary/daily-wage employees and unequivocally rules that such appointees are not entitled to claim regularization of service as of right. After taking cognizance of large scale irregularities committed in appointment at the lower rungs of the services and noticing several earlier decisions, the Constitution Bench observed; "4……….. The Union, the State, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to person who get employed, without the following of a regular procedure or even through the back door or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts 16 have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper intrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional 17 scheme of public employment. It has to be emphasized that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 5. This Court has also on occasions issued directions which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for handful of people who have approached the court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment ? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the 18 constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution bench." While repelling the argument based on equity, the Constitution Bench observe: (Umadevi(3) case, SCC pp.22-23, paras 12-13) "12. ……… But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. NOr can a court say that the Union or the Stat Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. 13. What a sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of 19 time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of the rule of law and the scheme of the