IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.118 of 2006 -------- 1. State Of Bihar 2. The Director, Revenue Administration-cum-Special Secretary, Department of Water Resources, Government of Bihar, Patna 3. The Special Officer-cum-Deputy Secretary, Department of Water Resources, Government of Bihar, Patna 4. The Deputy Collector, Revenue Division, Mohania, Post Office and Police Station – Mohania, District – Kaimur (Bhabua) ……..Respondents - Appellants Versus 1. Brij Bihari Prasad Shrivastava, Son of late Bachchan Lal, Resident of village and Post Office – Pachachilikhi, Police Station – Durgawati, District – Kaimur (Bhabua) …… Petitioner/Respondent 2. Shri Gulab Chand Singh, Son of not known, Seasonal Amin in the office of Deputy Collector, Revenue Division, Mohania, Post Office and Police Station – Mohania, District – Kaimur (Bhabua) ……….. Respondent/ Respondents ----------- For the Appellants : Mr. Anil Kumar Jha, Government Advocate No. II Mr. Gajendra Nath Ojha, Junior counsel to Government Advocate II. For the Respondent no.1 : Mr. Arun Kumar Singh No. 4 & Mr. Dharmendra Kumar Singh, Advocates -------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ---------- Dated, the 17th November, 2008. This is an appeal by the State of Bihar and its functionaries taking exception to the order dated 07th February, 2003 passed by the Single Judge whereby he allowed the writ petition filed - 2 - by the present respondent no.1 and quashed and set aside the order dated 07th November, 1998, whereby the services of respondent no.1 on the post of regular Amin came to be terminated. 2. For the sake of convenience, we shall refer the present respondent no.1, „the petitioner‟, the present appellants, „the government‟ and the present respondent no.2, by his name. 3. The petitioner was appointed as seasonal Amin on 09th April, 1979 having requisite qualification for that post. The petitioner was posted in the Revenue Division of Mohania which was earlier part of the original Revenue Division, Gaya. The service of the petitioner as seasonal Amin was extended from time to time and, accordingly, he continued to work as such right from the date of the initial appointment. The services of the petitioner on the post of Amin came to be regularized by the order dated 18th May, 1994. One, Gulab Chand Singh, was also initially engaged as seasonal Amin in the year 1976 and although his services were extended as seasonal Amin from time to time by the order dated 27th May, 1995, the Government decided not to regularize his services on the ground that he could not achieve 50% of the target. He filed a writ petition being CWJC No.6625/1995 before this court for quashing the order dated 27th May, 1995, whereby his services were not regularized. This writ petition was disposed of by this court on 17th December, 1996, with a direction to the government to recalculate the work done by him and find out whether he had achieved the target or not and then pass a fresh order. It appears that - 3 - thereafter again the matter belonging to regularisation of Gulab Chand Singh was considered by the Government and he was not found fit for regularisation. Gulab Chand Singh again approached this court by filing writ petition being CWJC No.1123/1998. This Court allowed that writ petition and directed the Government to regularize the services of Gulab Chand Singh to the post of Surveyor Amin by its order 26th August, 1999. This court clarified that in case no post was lying vacant, the authority shall take necessary step for creating an extra post or shall also take steps for terminating the services of other candidate who had worse performance than him (Gulab Chand Singh). Much before the order came to be passed on 26th August, 1999 in the case of Gulab chand Singh, for the reasons best known, the services of the petitioner came to be terminated vide order dated 07th November, 1998. The petitioner challenged the said order by filing writ petition being CWJC No.11238 of 1998. The writ petition was contested by the government and in justification of the order dated dated 07th November, 1998, defence was set up that the termination of the petitioner‟s services became necessary to accommodate Gulab Chand Singh pursuant to the order of this court dated 26th August, 1999. The Single Judge held that the government was not justified in terminating the services of the petitioner, more so, when Gulab Chand Singh was adjusted against the vacant post. The Single Judge, accordingly, quashed and set aside the order dated 07th November, 1998 vide order dated 07th February, 2003. It is this order which is impugned in the - 4 - present appeal. 4. After having carefully reflected over the matter, we are of the view that this Letters Patent Appeal is wholly misconceived and liable to be dismissed for more than one reason. For one, admittedly, the petitioner was appointed as regular Amin on 18th May, 1994 after having been in service continuously for about fifteen years as seasonal Amin. It is not even the case of the government that there was any illegality in the appointment of the petitioner. It is also not the case of the government that the petitioner was not eligible for appointment to the post of Amin or that he secured appointment/regularisation to the post of Amin on misrepresentation of facts. It is also not alleged that the petitioner indulged into any misconduct. That no disciplinary proceedings of any nature whatsoever were initiated against him is an admitted position. In this backdrop, terminating the services of the petitioner who was regularly appointed Amin by the government was wholly unjustified and illegal. For two, and more importantly, the stand of the government in opposition to the writ petition before the Single Judge was that the petitioner was junior most Amin and to adjust Gulab Chand Singh in compliance of the order of this Court dated 26th August, 1999, the services of the petitioner came to be terminated. The termination order of the petitioner is dated 07th November, 1998 while reinstatement of the Gulab Chand Singh was ordered by this court vide order dated 26th August, 1999. At the time when the order dated 07th November, 1998 came to be issued by the government, reinstatement - 5 - of Gulab Chand Singh was not even ordered by the Court. This shows that wholly false and untenable stand was set up by the government before the Single Judge in opposition to the writ petition. 5. Even otherwise in its order dated 26th August, 1999, while allowing the writ petition filed by Gulab Chand Singh, this court clarified that in case no post of Amin was lying vacant, the authority shall take necessary steps for creating an extra post. In the alternative, this court said in its order dated 26th August, 1999 that the authorities may take steps for terminating the services of other candidate who had worse performance than the petitioner. In compliance of the order of this court dated 26th August, 1999, therefore, the Government ought to have created an extra post, and if for any reason, they did not want to do that and desired to terminate the services of an existing employee, then that ought to have been done assessing comparative performance of the existing employees and the candidate whose performance was found to be worse than Gulab Chand Singh ought to have been terminated. It is not even the case of the government that comparative performance of the existing Amins was assessed and the performance of the petitioner was worse than that of Gulab Chand Singh. Rather the stand of the government is that the petitioner was junior most Amin and by applying the principles of “last come, first go” the services of the petitioners were terminated. This also leads to an irresistible conclusion that there was no justification in terminating the services of the petitioner for adjusting Gulab Chand Singh. - 6 - 6. We are constrained to observe that this case reflects how untenable and false plea could be set up by the government only to justify its illegal action and that calls for dismissal of appeal with costs. 7. Accordingly, Letters Patent Appeal is dismissed with cost which we quantify at Rs.2500/- (Rupees Two thousand five hundred). R.M. Lodha, CJ Kishore K. Mandal, J. Sunil/