IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10234 of 2008 Upendra Narayan Singh, son of Sri Tej Narayan Singh, resident of village Chakeya, Police Station Paliganj, District Patna………………Petitioner Versus 1. The State Of Bihar. 2. The Commissioner – cum - Principal Secretary, Department of Human Resources, Govt. of Bihar, Patna. 3. The Director, Secondary Education, Bihar, Patna. 4. The Regional Deputy Director of Education, Magadh Division, Gaya. 5. District Education Officer, Nawadah. 6. Headmaster, Government Girls High School, Nawadah……………………………………………………….……………….Respondents ------------ For Petitioner: M/s Ajay Kumar Thakur & Raghunandan Kr. Singh, Advocates For State: Mr. Satish Kumar sinha, A.C. to S.C. 1 2 27.09.2011 Heard learned counsel for the petitioner as well as learned counsel for the State. This is the third approach of this petitioner to this court for getting the order of cancellation of his appointment passed in 1997 set aside. Earlier petitioner had moved this Court against the order of termination dated 13.03.1997, in CWJC No. 8565 of 1997. The writ application was disposed of by this Court by order dated 18.08.1999 (Annexure-12). This Court found that petitioner had been given only 24 hours’ notice to show cause and his show 2 cause filed after two days was not considered. This Court also found that issuance of notice was an empty formality and a decision has already been taken by the respondents to terminate his service. Hence, the order of termination of his service was quashed by this Court with a direction to the Director, Secondary Education to consider the show cause filed by the petitioner and pass appropriate orders in accordance with law without being influenced by the previous orders. The show cause of petitioner and others was, therefore, considered and the Director, Secondary Education passed a speaking order in their respect on 07.12.2000 (Annexure-14). He did not find any substance in the show cause and found that appointments of the petitioner and others were illegal. Hence, he again directed for termination of their services from the date of issue of order. The said order was challenged by the petitioner in this Court in CWJC No.11560 of 2005. However, by the order dated 02.08.2006 (Annexure-15), the writ application was dismissed as withdrawn on the prayer of 3 learned counsel for the petitioner, to enable the petitioner to prefer statutory appeal. Petitioner, accordingly, filed his appeal which has been rejected by the Principal Secretary of Human Resources Development Department by order dated 09.01.2008 (Annexure-16). All these three orders are impugned in the present writ application. The Director, Secondary Education in his order has found that appointment of the petitioner was not in accordance with the procedure laid down for appointment, vacancies were not made public and the appointment was not made in accordance with 1983 Rules. The Principal Secretary in his appellate order found that petitioner was appointed without making vacancies public (without advertisement), without preparation of the panel, without following reservation Rules. Hence, he found that in terms of the law laid by the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi (3) reported in 2006 (2) PLJR 363 (SC), appointment of the petitioner was illegal as it was only made 4 through backdoor method. Hence, he has found that there is no question of regularisation of his services and has therefore, rejected the appeal. Learned counsel for the petitioner submits that an advertisement was published by the District Education Officer, Nawadah, vide Annexure-1 and pursuant to the advertisement, petitioner had applied for appointment. He submits that whether the panel was prepared or not; whether reservation rules were followed or not and whether other procedures were followed or not, could not be in the knowledge of the petitioner. He submits that the Principal Secretary has wrongly placed the burden to establish these facts on the petitioner and, in absence of any proof submitted by the petitioner, has presumed that these procedural requirements were not fulfilled in the appointment of petitioner. Even if it is accepted that petitioner was not required to satisfy the appellate authority, nor was he in a position to produce any materials, in respect of the procedure adopted by the authorities in 5 their office in respect of appointment, still it was on the part of the petitioner to establish that he had applied for appointment pursuant to an advertisement published in the newspaper and pursuant to a selection process in which an interview was held and he appeared. As per facts stated in his memo of appeal and noticed by the Principal secretary, petitioner was appointed by the District Education Officer through Memo No.644 dated 23.04.1989. Now if the advertisement (Annexure-1) is examined, it is apparent that the so-called advertisement was issued only four days earlier i.e. on 19.04.1989. The so-called advertisement clearly mentions that all the applicants had to get themselves registered with the District Employment Exchange first and had to submit their applications along with registration numbers. Secondly, the so- called advertisement shows that the copy of the same was sent by the office of the District Education Officer to different authorities of the District for being put up on the notice board of their offices. 6 Clearly, this order was passed on 19.04.1989. Even if copy of the order was sent to different offices of the District, it must have taken one or two days time in reaching to the respective offices and in being put up on the notice board. Then only other eligible aspirants would have come to know about the same and would have got their names registered with the District Employment Exchange and then would have applied with the registration numbers. Clearly, before all these formalities could be completed, appointment letter was issued by the District Education Officer, Nawadah in favour of the petitioner only four days after. This Court finds that in the above circumstances, the finding of the Principal Secretary of the Department that appointment of the petitioner was made through backdoor is perfectly correct. Therefore, this Court does not find any merit in this writ application and the same is dismissed. BT (J. N. Singh, J.)