IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1558 of 2004 KAILASH MAHTO ...........................................................................PETITIONER VERSUS THE STATE OF BIHAR & ORS. ................................................ RESPONDENTS For the Petitioner : Mr. Prakash Mahto, Advocate For the Respondents : G.P.-8 P R E S E N T THE HON'BLE JUSTICE MIHIR KUMAR JHA ************** Mihir Kr. Jha, J. Heard learned counsel for the petitioner and learned counsel for the State. In this writ application the petitioner has prayed only for issuance of a direction commanding the respondents to regularize his service on the vacant and sanctioned post of clerk in Rajkiyakrit Janta high School, Satayan, district Jamui (hereinafter referred to as “the school”) on the basis that he has been working on the said post for more than last l2 to 13 years. Counsel for the petitioner has submitted that the petitioner was initially appointed on the post of peon on 15.11.1973 in the school and from that day he has been holding substantive post of peon. It is the case of the petitioner that in the month of April,1994 the solitary post of clerk in the school became vacant on account of retirement of regular incumbent and as such the Headmaster of the school had entrusted him some work of the post of clerk. The counsel for the petitioner 2 has relied on a letter of the Headmaster of the school dated 24.9.1994 (Annexure 1) to contend that infact he had also recommended to Regional Deputy Director of Education (R.D.D.E.), Bhagalpur for promotion of the petitioner on the post of clerk against vacant post. The Counsel for the petitioner in fact has relied on some certificates of the same Headmaster dated 21.3.1996 as also another one dated 8.9.1977 to demonstrate that the post clerk in the school was still vacant and he had been discharging function of the post of clerk. It was thus submitted by him that the claim of the petitioner for his appointment by way of promotion on the solitary post of the clerk of the school had remained pending before the R.D.D.E., Bhagalpur/Munger and when the same was not decided despite repeated representations filed by the petitioner, the present writ application was filed by him on 04.02.2004 but during the pendency of the writ application, the R.D.D.E., Munger vide his order dated 01.07.2006 had posted one Pradip Kumar Singh on the post of clerk of the School as a result whereof During the pendency of this writ application which was filed on 4.2.04, I.A. No. 3404/06 was filed by the petitioner assailing the order passed by the Regional Dy. Director of Education, Munger, dated 1.7.2006 whereby and whereunder 3 Pradip Kumar Sinha was posted on the vacant post of clerk in the school. In the I.A application the petitioner has accordingly sought additional relief of also quashing the said order dated 1.7.06 because the same has taken away the right of the petitioner to be promoted/regularized against post of clerk in the school. Counsel for the petitioner accordingly has submitted that after the petitioner had continued almost 12 years on the post of clerk in the school and there was also a recommendation in his favour by the Headmaster to the competent authority for considering the case of his promotion on the post of clerk, the petitioner should have been promoted/regularized on the post of clerk as he was not only discharging the duty of the said post on being authorized to do so by the Headmaster but also because he had also all the requisite qualifications laid down for the post of clerk. He has further submitted that the order of posting of Pradip Kumar Sinha by the Regional Dy. Director of Education, Munger, on 1.7.06 was by way of wrong interpretation of the order of this Court dated 6.10.05 passed in C.W.J.C. No. 336/84 and C.W.J.C. No. 5161/84 inasmuch as when the order of termination of service of Pradip Kumar Sinha dated 12.1.84 was set aside by this Court by the aforesaid judgment dated 6.10.05, no specific direction was given for reinstatement of 4 Pradip Kumar Sinha on the vacant post of clerk in the school held and occupied by the petitioner from 1994. It is thus submitted that this Court had only set aside the order of termination of Pradip Kumar Sinha on the post of clerk in the school but had never issued a direction for his posting on the post of the clerk of the school so as to eclipse the right of the petitioner of being promoted/regularized on the post of clerk in the school. Learned counsel for the State on the other hand, with reference to the counter affidavit filed in this case has submitted that the claim of the petitioner for his being promoted/regularized for the post of clerk is not justified inasmuch as such post of clerk in a nationalized High School has to be filled up in a prescribed manner laid down by the State Government either under relevant service rules and/or executive instruction as contained in letter of the Director of Primary Education dated 16.8.03 as also letter of the Director Secondary Education contained in separate letter dated 10.1.04. It has been further contended on behalf of the State that any appointment on the post of clerk can be made only under the recommendation of the Bihar Staff Selection Commission which is competent Body to make recommendation for promotion/regularization of class-III post. Reference in this 5 connection has been made on the communication of the Bihar Staff Selection Commission dated 16.8.03 indicating that the decision for appointment on the vacant post of clerk in the nationalized High School was dealt by the Commission on being forwarded the relevant information such as recruitment rules, roster clearance etc. Learned counsel for the State has further submitted that the action taken by the Headmaster of the School assigning duty on the post of clerk in the School will neither clothe the petitioner with any right for his being either regularized/promoted nor the petitioner can be allowed to challenge the order of posting of Pradip Kumar Sinha who has been appointed against the vacant post of clerk in the School. In the submission of the learned counsel for the State this writ application has in fact become infructuous as the solitary post of clerk in the School has already been filled up by posting Pradip Kumar Sinha who is not only a regularly appointed clerk but has been posted on account of order of reinstatement passed as a follow up measure to implement two judgments of this Court in CWJC No. 336/84 and CWJC No. 516/84. Learned counsel for the State in fact has also placed reliance on the judgment of the Constitution Bench of the Supreme Court in the case of Secretary State of Karnataka & others vs Uma Devi & others reported in (2006) 4 SCC 1, to contend that a person like 6 the petitioner who was never appointed on the post of clerk in the prescribed manner has no right to be regularized on the post of clerk. Learned counsel for the petitioner in his reply to the submission of the learned counsel for the State has pointed out that even if it is held that the post of clerk has been filled up by posting Pradip Kumar Sinha, there remains no doubt that the petitioner had continued against the said post from 1994 when regular incumbent on the post of clerk in the school had retired in the month of April,1994 and therefore, petitioner was definitely entitled for payment of salary in the pay scale of the clerk in view of the law laid down by the Apex Court in the case of Bahadur Singh and another Vs. State of Punjab reported in 1993 SC 70. Counsel for the petitioner has further submitted that the respondent State and its officials having taken work from the petitioner for more than 12 years before joining of Pradip Kumar Sinha on the post of clerk in the school was duty bound to consider the case of the regularization of the petitioner in terms of law laid down by the Supreme Court in the case of Jacob M. Puthuparambil and others vs Kerala Water Authority and others reported in 1990 SC 2228 as also in the light of the judgment of the Apex Court in the case of N.S.K. Nayak and others Vs. Union of India and others reported in AIR 1992 SC 7 1574. Having given anxious consideration to the aforesaid submissions made at the Bar, this Court is of the view that this writ application seeking relief of regularization on the post of clerk in the school has become infructuous on account of the fact that there is only one sanctioned post of clerk in all the nationalized high school including the school of the petitioner and that post has been filled up by the competent authority ,namely, Regional Dy. Director by way of issuance of order of posting of Pradip Kumar Sinha vide order dated 1.7.2006 (Annexure 8) to the Interlocutory Petition. In absence of a vacant sanctioned post claim of the petitioner for being regularized has to be straightway rejected. As a matter of fact the subsequent event of posting of Pradip Kumar Sinha on the post held by the petitioner by way of adhoc arrangement has infact made this writ application itself infructuous as the solitary post of clerk in the school has been filled up by way of posting of Sri Pradeep Kumar Sinha in purported compliance of the order of this court. This court is also of the view that even if such a decision for filling up post of clerk had not been taken and Sri Pradip Kumar Sinha would not have been posted, even in that case the petitioner could not have been promoted /regularized 8 on the said post on the strength of the alleged assignment of duty and his continuance on the post of clerk in the school. There is no dispute that the school in question is a nationalized (Rajkiyakrit) high school which was taken over by the State in view of the provision made under the Bihar Arajkiya Madhmik Vidyalaya (Prabhand Ewam Niyantran Grahan) Adhiniyam, 1981 and the State Government has also framed service condition, namely Bihar Rajkiyakrit Madhyamik Vidyalaya Sewa Sharth Niyamawali, 1983 in exercise of its power under section 9 of the aforesaid Act Rule 8 thereof is relevant for the purpose of this writ petition : "8. jktdh;d`r ek/;fed fo|ky;ksa ds f'k{kdsRrj deZpkfj;ksa dh fu;qfDr] izksUufr ,oa vU; lsaok 'kRrZA 1- ¼d½ f'k{kdsRrj deZpkjh ¼prqFkZ oxhZ; deZpkfj;ksa dks NksM+dj½ dh fu;qfDr jkT; ljdkj }kjk le; le; ij tkjh vkns'kksa ds v/khu ¼ns[ksa dkfeZd foHkkx dk i=kad 16440 fnukad 3 fnlEcj 1980 ifjf'k"V 3½ ftyk Lrj ij rS;kj fd;s x;s ,d iSuy ls ftyk f'k{kk inkf/kdkjh }kjk dh tk;sxh & ¼[k½ fu;qfDr dh U;wure vgZrk& eSfVz~d mRrhZ.k tks jkT; ljdkj le; le; ij fu;r djsaA Vad.k esa n{krk izkIr mEehnokj dks izkFkfedrk nh tk;sxhA ¼x½ fu;qfDr dh izfdz;k& inksa ds foKkiu rFkk fu;qfDr ds fy;s iSuy rS;kj djus dh izfdz;k ogh gksxh tks bl dksfV ds vU; ljdkjh deZpkfj;ksa ds fy;s jkT; ljdkj }kjk le; le; ij fofgr dh tk;A bu deZpkfj;ksa ds p;u ds fy, ,d lfefr gksxhA lfefr esa v|ksfyf[kr O;fDr jgsaxa& ¼1½ ftyk f'k{kk inkf/kdkjhA ¼2½ ftyk fo|ky; fujh{kdkA ¼3½ ftyk ds jktdh;d`r ek/;fed fo|ky; ds ,d iz/kkuk?;kid ¼?k½ r~rh; oxhZ; f'k{kdsRrj deZpkjh ds in dh vgZrk j[kus okys prqFkZoxhZ; deZpkfj;ksa ds r`rh; oxZ esa fu;qfDr ds fu;e ,oa izfdz;k ogh gksxh tks jkT; ljdkj@foHkkx }kjk le; le; ij cukbZ xbZ gS vFkok 9 cukbZ tk;sxhA ¼M-½ r`rh; oxhZ; f'k{kdsRrj deZpkfj;ksa dk ftyk lEoxZ gksxk vkSj ftyk f'k{kk inkf/kdkjh ftyk Lrj ij fu;a=h inkf/kdkjh gkssaxsA 2- prqFkZoxhZ; deZpkjh dh fu;qfDr& ¼d½ prqFkZoxhZ; deZpkfj;ksa dh fu;qfDr 16441 fnukad 3 fnlEcj 1980 esa fofgr izko/kkuksa ds vkyksd esa jkT; ljdkj }kjk le; le; ij tkjh vkns'kksa ds vihy ¿ns[ksa dkfeZd foHkkx dk i=kad 16441] fnukad 3 fnlEcj 1980 ifjf'k"V ¼4½À rS;kj fd;s x;s iSusy ls iz/kkuk/;kid }kjk dh tk;sxhA prqFkZoxhZ; deZpkjh dh fu;qfDr ds fy;s U;qure ;ksX;rk v/kksfyf[kr gksxh& ¼1½ mEehnokj LoLFk gksA ¼2½ mEehnokj lkbfdy pykuk tkurk gksA ¼3½ mEehnokj i<+uk fy[kuk tkurk gksA ¼[k½ prqFkZoxhZ; deZpkfj;ksa dk ftyk lEoxZ gksxkA ftyk f'k{kk inkf/kdkjh buds fu;a=h inkf/kdkjh gksxsA izoj dksfV esa] ;fn dksbZ in gks] rks ftyk f'k{kk inkf/kdkjh }kjk izksUufr mDr laoxZ ls nh tk ldsxhA ¼3½ f'k{kdsRrj deZpkfj;ksa dh fu;qfDr ds fy;s U;wure vk;q ,oa lsok fuo~fr dh mez ogh gksxh tks ,sls vU; led{k ljdkjh lsodksa ds fy;s fu/kkZfjr gksxhA ljdkjh lsok esa fu;qfDr dh vf/kdre vk;q {kfr dk vf/kdkj lEoxZ ds fu;a=h inkf/kdkjh dks gksxkA ¼4½ fu;qfDr@izksUufr esa vkj{k.k& f'k{kdsRrj deZpkfj;kssa dh fu;qfDr@izksUufr esa vkj{k.k laca/kh ljdkjh uhfr ykxw gksxh ¼ns[ksa dkfeZd foHkkx dh ladYi la[;k 11601] fnukad 20 vDVwcj 1982 ,oas l0 517] fnukad 15 fnlEcj 1982 ifjf'k"V 1 ,oa 2½A** From perusal of the aforementioned rules, it is absolutely clear that the post of non-teaching employee including that of clerk has to be filled up in the manner prescribed after issuance of advertisement, selection and preparation of panel by a Selection Committee consisting of District Education Officer, District Inspectress of schools and a Headmaster of Rajkiyarit school. The appointing authority 10 under the aforesaid rules for the post of non-teaching employee in a nationalized high school is the District Education Officer. Thus in presence of these statutory rules, the contention of the counsel for the petitioner that the petitioner was validly appointed as a clerk and continued in that capacity for a period over 12 years so as to be clothed with the right of being regularized /promoted on the post of clerk of the school is fit to be rejected for the simple reason that the Headmaster of the school by himself was not even authorized to make an appointment on the post of clerk whether on regular basis or even on temporary basis or even by making an arrangement on current charge. It is well settled that if a person has not been appointed/promoted in a prescribed manner and by a competent authority, he can not claim any right based on such appointment/promotion. Obviously, any alleged working arrangement made by the Headmaster of the school directing the petitioner to discharge work on vacant post of clerk was itself a wholly unauthorized act on his part and on that basis the petitioner atleast can not claim any right of being regularized. Reliance placed in this regard by the learned counsel on the judgment in the case of Nayak (supra) is wholly misplaced because in that case there was a provision for making an officiating appointment and such officiating appointment 11 made by the competent authority which had continued for a period of 10 to 15 years and as such, the Supreme Court had held that if such an appointment made was continued for a long period exceeding 10 to 15 years the same could not be considered to be a purely temporary officiating arrangement and the State after taking work from the person who was appointed and continued 10 to 15 years could not have denied the right of regularization. This court fails to understand as to how the ratio of Nayak case (supra) will be applicable to the facts of this case. Nayak’s case is not an authority for its application by way of rule of thumb that the moment it is brought to the notice of the court that a person has continued against the post for a considerable period, the court has to invariably issue a direction for regularization of services of such person. As a matter of fact it was this cobweb/uncertainty created by a large number of conflicting judgments on the issue of regularization that law was laid down by an authoritative pronouncement of the Constitution Bench of the Supreme Court in the case of Uma Devi (supra) where the Constitution Bench while laying down the law in the matter of regularization had made a clear distinction between irregular appointment and illegal appointment. It was held therein that the question of regularization of the service of irregular appointment could be 12 taken up only as one time exercise but such recourse could not be taken for regularization of services of the persons whose appointment itself was illegal. As a matter of fact the Apex Court in the aforementioned judgment has also held that any decision which may run counter to the principle settled by the Constitution Bench in the Uma Devi’s case (supra) would stand denuded of their status as precedent. In view of this clear proposition of law laid down by the Apex Court in paragraph 54 of Uma Devi case, the reliance placed by the learned counsel for the petitioner either on the judgment of Jacob’s case (supra) seeking to regularize service on the ground of continuance for a period of two years or in the Nayak case providing for regularization of service on completion of a period of 15 years cannot be now followed by court as the whole concept of long continuance in service can not be accepted as a valid reason for regularization. The law laid down by the Apex Court in Uma Devi case (supra) in this respect reads as follows: - “While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts and engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm’s length- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, 13 it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who had temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employees. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizen of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving of the procedure established, for making regular appointments to available post in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue in, even though he was aware of the nature of employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touch stone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.” On the basis of the aforementioned discussion, it may 14 however not be presumed that in the case of the petitioner there was a valid order of assignment of duty of post of clerk passed by the Headmaster of the school . As indicated above, from the rules, it is clear that the Headmaster is no body to make appointment on the post of clerk, a class III post in a nationalized high school and infact the two documents heavily relied by the counsel for the petitioner being letter of the Headmaster dated 24.9.1994 and that certificate dated 21.3.1996 would only go to show that the petitioner in absence of a regularly appointed clerk in the school had been partly discharging the duty of post of clerk. From this letter dated 24.9.1994 it is not borne out that there was any specific order issued by the Headmaster directing the petitioner to discharge duty of post of clerk in the school. Thus the recommendation made by him to the Regional Dy. Director of Education, Munger in his letter dated 24.9.1994 by itself can also not be a proof of the fact that the petitioner was actually assigned the duty on the post of clerk in the school even by way of officiating arrangement. The myth with regard to long continuance of the petitioner on the post of clerk is further exposed from the certificate dated 21.3.1996 wherein the Headmaster of the school has certified that the petitioner is continuing against the post of peon since 15.11.1973 and his 15 services are satisfactory . Expression in the certificate (Annexure 2) is that ^^rkoDr ;s fdjkuh dk Hkh dk;Z djrs gSaaA** (emphasis supplied) does not in any way improve the case of the petitioner because from that document all that would appear is that the petitioner was some time as and when required was also discharging the duty of the post of clerk. That by itself being an assignment of the duty of clerk on intermitent basis, can not clothe the petitioner with any right to hold the post of clerk much less make him eligible to claim for being regularized on the post of clerk. The last limb of the submission of the counsel for the petitioner, that even if his services cannot be regularized by this court on account of posting of Pradip Kumar Sinha on the post of clerk it should still be held by this court that he would to be entitled for payment of salary of the post of clerk from 1994 on wards, in fact, is an argument of desperation because not only in the writ application the petitioner had cautiously abandoned such a prayer by striking out those portions in paragraph no. 1 of the writ application by confining the writ application in respect of prayer of regularization of service but even otherwise in absence of any order issued by any authority much less competent authority assigning the duty on the post of clerk of the school, this court can not issue a direction for payment of 16 salary of the petitioner specially when the two documents, namely Annexures 1 and 2 of the writ application themselves go to show the petitioner was only intermittently working on the post of clerk and was partially discharging the duty of clerk in addition to his own duty of the post of peon in the school. Thus the claim of payment of salary of the petitioner on the post of clerk of the school has to be rejected. Reference in this connection may be made to the Full Bench Judgment of this court Rita Mishra vs. Director, Primary Education & ors. reported in 1987 PLJR, 1090 where it was held by this court that in absence