IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7209 of 2004 Revati Raman Jha, aged about 33 years, son of Shri Keshav Jha, resident of village and post Kharka, P.S. Nanpur, District- Sitamarhi ………………. Petitioner Versus 1.The State Of Bihar 2.The Regional Deputy Director of Education, Muzaffarpur 3.District Education Officer, Sitamarhi 4.Head Mistress, Mouze Kishori Project Balika Uchch Vidyalaya Manik Chowk, Sitamarhi ……………. Respondents ----------- For the Petitioner : Mr.Ganesh Prasad Singh, Sr.Adv. For the State : Mr.S.K.Sharma, G.A.5 with Mr.Mayank Rukhaiyar, A.C. to G.A.5 ----------- 3. 07/04/2010 In this writ application, petitioner has challenged the order dated 19.2.2004, as contained in Annexure-12, passed by respondent Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, whereby services of the petitioner have been terminated on the ground that the requirements of letter no.16441 dated 3.12.1988 were not fulfilled while appointing the petitioner. Appointment of the petitioner was made by Annexure-4 dated 4.4.1991 by the then Regional Deputy Director of Education, Tirhut Division, Muzaffarpur on the recommendation of the Headmistress of the Project School on the post of Peon in the said School for three - 2 - months. The same was subsequently extended by Annexure-4/1. There is further extension of his service till further orders by an order of the District Education Officer dated 24.4.1999, as contained in Annexure-6. Subsequently, there was an enquiry and show cause was issued to the petitioner. Not finding his show cause satisfactory, his services have been terminated by the impugned order on the ground that there was no advertisement, no roster clearance and reservation policy was not followed in making his appointment, as provided in letter no.16441 dated 3.12.1988. Learned senior counsel for the petitioner submits that the respondents have proceeded in the matter on the basis of general principles laid down in the said letter dated 3.12.1988 for declaring the appointment of the petitioner illegal. He submits that the respondents did not take into account that the said letter was not applicable to Project Schools. He also submits that the petitioner was appointed against single vacancy available in the School and therefore, for appointment on solitary post, there was no requirement of - 3 - advertisement in the newspaper, roster clearance and adhering to the reservation policy. He submits that these things are not mandatory requirement for appointment on solitary post and at best appointment of the petitioner can be termed as irregular and not illegal. He submits that the case of the petitioner was required to be considered by the respondents afresh in the light of the directions contained in paragraph 44 of the judgment of the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi, reported in 2006(2) PLJR 363 (SC). Learned Government Advocate No.5 submits that the ratio of the judgment in the case of Uma Devi (Supra) is applicable to illegal appointments also and therefore if an appointment is illegal, length of service will not come to the aid of the employee to claim continuity. However, he submits that whether the post was solitary in the school or not is not established from the records and therefore, submission of learned senior counsel for the petitioner cannot be accepted on its face - 4 - value. Learned Government Advocate No.5 is correct. This Court cannot hold at this stage that the appointment of the petitioner was irregular and not illegal. In the circumstances, this Court feels it appropriate that the matter should be examined afresh by the respondents in the light of submissions made by learned senior counsel for the petitioner. Therefore, this Court directs respondent no.2, namely, Regional Deputy Director of Education, Tirhut Division, Muzaffarpur to consider as to whether appointment of the petitioner was against single post and whether in the circumstances no paper advertisement or roster clearance and adhering to reservation policy was required in law. If it is established that, in respect of the post on which petitioner was appointed, these requirements stood waived in law, appointment of petitioner may be considered as irregular. In that situation, he will act upon in the matter in terms of the directions of the Constitution Bench contained in the said paragraph 44 of the judgment in the case of Uma - 5 - Devi (Supra). This exercise should be completed by respondent no.2 preferably within a period of three months from the date of receipt/production of a copy of this order. Petitioner will be at liberty to produce all materials available with him along with a copy of this order to substantiate his claim that in respect of his appointment above requirements stood waived in law. For the purpose of consideration of the case of the petitioner in terms of this order, impugned order (Annexure- 12) shall be treated to have been kept in abeyance and respondent no.2 shall hold an independent enquiry in the matter without being influenced by his earlier order (Annexure-12). However, in case, claim of the petitioner is not established, respondent no.2 shall assign reasons for the same and communicate it to the petitioner, upon which Annexure-12 shall stand revived. With the aforesaid observations and directions, this writ application is disposed of. Pradeep/ ( J.N. Singh, J.)