IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8925 of 2005 KESHAW PRASAD SINGH, SON OF SRI JANARDAN PRASAD SINGH, RESIDENT OF VILLAGE- PANCHGACHHIA, P.S. BIHRA, DISTRICT- SAHARSA, PRESENTLY POSTED AS ASSISTANT IN THE OFFICE OF SUB-DIVISIONAL EDUCATION OFFICER, BIRPUR, SUPAUL, DISTRICT- SUPAUL. ... PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY-CUM-COMMISSIONER, HUMAN RESOURCES, DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, SECONDARY EDUCATION- CUM-SPECIAL SECRETARY, GOVERNMENT OF BIHAR, PATNA. 4. THE DEPUTY DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 5. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, KOSHI DIVISION, SAHARSA. ----------- 12. 06.04.2011 Heard learned counsel for the petitioner and the State. 2. This application was filed by the petitioner initially for quashing of an order contained in letter dated 21.9.2004 issued by the Deputy Director Secondary Education, Government of Bihar, contained in memo no.1531, whereby he was directed to appear before the respondent no.3 with all connected documents relating to his appointment, so that genuiness of his appointment can 2 be examined. During the pendency of the writ application, the inquiry regarding genuineness of petitioner’s appointment completed and order dated 6.3.2006 contained in memo no.394 was issued by the Director Secondary Education, Government of Bihar terminating the petitioner from his service. The impugned orders have been challenged by the petitioner on the ground that it is completely, unreasonable, illegal and discriminatory. 3. Initially, the petitioner was appointed against leave vacancy on 7.9.1987 and worked on the post of clerk at Nationalised High School, Jamhara, for three months. Thereafter he was re-appointed against leave vacancy post and continued up to 30.6.1988. A notice was published relating to vacancies existing on Class-III posts in Koshi Division by Regional Deputy Director of Education, Saharsa on 6.1.1989. The petitioner also applied for the post in response to this notice of vacancies. Petitioner was asked to appear for interview before the Divisional Establishment committee vide memo no. 7572 dated 25.6.1989 and the interview was held on 17.7.1989. The Establishment committee resolved to pass necessary orders relating to appointment of interviewed candidates in 3 its next meeting but it was not done till 1991, as such petitioner has to file C.W.J.C. No.10387 of 1992 in the High Court for a direction to the respondents to issue appointment letter in his favour. The writ application was disposed of with an observation that in the event their exists any vacancy and if the State thinks to fill up those vacancies, the case of the petitioner shall be considered on its merit, alongwith other eligible candidates, in terms of aforementioned rules i.e. Bihar National Secondary Education Rule-1983. The direction was also there to consider the case of the petitioner sympathitically, giving relaxation of age. In the light of the observation/direction issued in the writ application the Regional Deputy Director of Education made a correspondence with the Director Secondary Education regarding re-appointmnent of the petitioner as a retrenched employee. The Director Secondary Education, vide letter contained in memo no. 417 dated 29.6.1993, directed for re-appointment of the petitioner, as a special case, against any available sanctioned vacancy in any of the offices of Human Resources Development Department or in any educational institution in the District. It was also specificaly mentioned 4 in this letter that the petitioner’s appointment will not be considered as a precedence and his previous service will not be counted for the continuity in service, and no benefits accruing from the previous appointment will be available to the petitioner. In the light of the direction of the Director, Primary Secondary Education, an appointment letter was issued in favour of the petitioner and he joined in the office of Sub-divisional Education Officer, Birpur, Supaul. The post on which the petitioner joined was a sanctioned post and it was vacant. 4. Records connected with the appointment of petitioner has been produced by the counsel apearing for State, a letter issued by Regional Deputy Director, Saharsa is the part of this record from which it transpires that payment of salary started to the petitioner, subsequent to the inquiry and verification of the legality of the petitioner’s appointment and only on approval by the Director (Secondary) Education.. Petitioner, thereafter, continued on his post till 1997. The then Director (Secondary) Education, while examining the genuiness and legality of the appointment of another person also examined the legality of petitioner’s appointment and 5 found that his appointment had been made on the post of clerk in Sub-divisional Education Office, Birpur, without following the proper prescribed procedure of appointment. As the prescribed procedure of appointment in the circular of Personal and Administrative Reforms Department had not been followed, as such treating the appointment as illegal, petitioner was terminated from his service, even without issuing any show cause notice. The termination order also challenged by the petitioner in C.W.J.C. No. 2541 of 1997, and the termination order was quashed vide order dated 23.10.1997. The respondents were directed to pass fresh order after a show cause notice to the petitioner. The show cause notice was issued to the petitioner in the light of the order passed in the writ applicaton and thereafter the final order was passed, challenging which, present writ application has been filed. 5. A counter affidavit filed on behalf of the State is specific on this point that since the procedure prescribed in the Personal and Administrative Reforms Department circular was not followed in the appointment of the petitioner as such his appointment was illegal. The procedure as laid down in the Personal and Administrative 6 Reforms Department letter no. 16441 dated 3.12.1980 is that the vacancies must be advertised, panel be prepared, following the rule of reservation only appointment letters can be issued against the post advertised. Since, the petitioner was appointed without following the procedure, it was an illegal appointment and termination order passed. 6. Counsel for the petitioner, on the other hand, submits that so far circular contained in letter no. 16441 dated 6.12.1980 of Personal and Administrative Reforms Department is concerned, that has no application in the matters of appointment, in the Regional offices of the Education Department for valid appointments. Appointments in the Regional offices of Education Department has to be made following the statutory rules framed by the State Government. The Rule prescribed that a committee will be constituted under the statutory rules, and on recommendation of such committee, appointment is to be made. In the case of petitioner, admittedly the Regional Level Establishment Committee had recommended for issuance of appointment letter in favour of the petitioner as well as others. They were interviewed and subsequently as per the direction of the Director 7 Secondary Education appointment letter was issued in favour of the petitioner. Counsel for the petitioner further submits that there is nothing to show that the appointment letter issued in favour of the petitioner was a forged letter. It is also not the case of the respondent that existing vacancies were not available, and petitioners were not interviewed. An advertisement was issued at the instance of the Regional Deputy Director candidates were interviewed by Establishment Committee, and resolution had been taken for issuing necessary orders for appointment of interviewed candidates. Since it was not done, the petitioner moved before the High Court and the writ application was disposed of with an observation that the case of the petitioner should be considered compoassionately. That compassion was shown by the Director (Secondary) Education and as per his direction his appointment letter had been issued. In this circumstance, there was no reason for holding that petitioner was appointed illegally, as procedures mentioned in the circular of Personal and Administrative Reforms Department were not observed.. This circular has no application in appointments in the Regional Office of 8 the Education Department. 7. The petitioner has also alleged discrimination on the ground that vide Annexure-16 petitioner as well as Pancham Singh both were directed to be terminated from the post of clerks. Petitioner and Pancham Singh both challenged the termination order. Termination order of Pancham Singh was quashed and he was re-instated on his post. He died in harness and after the death of Pancham Singh, his son was appointed on compassionate ground. Since, Pancham Singh was reinstated, there was no reason for coming to a different conclusion in the case of the petitioner. 8. I find that procedure for legal appointment had been followed halfway in the case of the petitioner. However, there is nothing to show that any panel was prepared, subsequent to the interview, but petitioner was appointed as a special case by the Director Secondary Education, in the light of the observation made in the writ application. In this circumstance, after remaining of service for so many years, there was no reason for terminating the petitioner from his post. Petitioner is also entitled for similar treatment as given to a similarly 9 situated employee Pancham Singh. That aspect was also not considered by the respondents while issuing of termination order against the petitioner. 9. For all these reasons, I find that the impugned order contained in Annexure-30 issued by the Director Primary Secondary Education contained in memo no.394 dated 6.3.2006 is quashed. 10. This writ application is allowed. The respondents are directed to reinstate the petitioner with all consequential benefits. Ibrar/- ( Mridula Mishra, J.)