IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1055 of 2011 In Civil Writ Jurisdiction Case No. 8925 of 2005 With Interlocutory Application No. 4850 of 2011 In Letters Patent Appeal No.1055 of 2011 ====================================================== 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. Respondents .... Appellants Versus Keshaw Prasad Singh, son of Sri Janardan Prasad Singh, resident of village- Panchgachhia, Police Station- Bihra, District- Saharsa Petitioner .... Respondent ====================================================== Appearance : For the Appellants : Mr. Rajiv Roy, G.P.V with Mr. Suersh Kumar , A.C. to G.P. V For the Respondent : Mr.S.B.K. Manglam, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORDER (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) 5/ 8.08.2011 This intra court appeal under Clause 10 of the Letters Patent Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 2 of the High Court of Judicature at Patna has been preferred by the State of Bihar and its functionaries questioning the validity and correctness of the judgment and order dated 6th April 2011 passed in above C.W.J.C. No. 8925 of 2005 by the learned single judge of this Court, whereby the petition filed by the writ petitioner has been allowed, the order contained in Memo no. 394 Patna, dated 6th March 2006 (Annexure-30 of the writ petition) terminating the service of the writ petitioner- respondent herein (hereinafter referred to as the “writ petitioner”) has been quashed, and the respondents therein- appellants herein have been directed to reinstate him with all consequential benefits. The writ petitioner originally filed above C.W.J.C. No. 8925 of 2005 questioning the action of the State authorities for holding enquiry regarding genuineness of his appointment on the post of Clerk in the office of Subdivisional Education Officer, Birpur (Supaul). During the pendency of the writ petition, on the basis of the enquiry held by the competent authority, final order as contained in Memo No. 394 Patna, dated 6th March 2006 was passed by the Director (Secondary Education), Bihar, terminating the service of the writ petitioner. Therefore, the writ petitioner filed I.A. No. 2962 of 2006 seeking amendment in the writ petition and seeking permission of this Court to challenge the aforesaid Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 3 order dated 6th March 2006. By order dated 29th January 2007 passed by the learned single judge, prayer for amendment was allowed. Admittedly, the writ petitioner was appointed on temporary basis in Nationalized High School, Jamhara (Supaul) on the post of Clerk during the leave of the incumbent, having been sent for training. The aforesaid order of appointment was made by the order dated 7th September 1987 and he continued in service uptil 31st December 1987 only. Again by an order dated 17th February 1988 issued by the Regional Deputy Director of Education, Koshi Division, Saharsa, he was temporarily appointed on the post of Clerk against leave vacancy in Nationalized High School, Gamel (Madhepura) and he continued on that post till 30th June 1988. The writ petitioner, thus, remained in service for about eight months only in aforesaid two High Schools. On the basis of representation submitted by the writ petitioner, after about five years he was re-appointed on the post of Clerk in the office of Subdivisional Education Officer, Birpur, Supaul by order dated 20th July 1993 (Annexure- 13) issued by the Regional Deputy Director of Education, Koshi Division, Saharsa. Subsequently, on the basis of enquiry, it was found that the appointment of the writ petitioner on the post of clerk was made without following the Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 4 procedure prescribed under the law. Therefore, the Director, (Secondary Education)-cum-Special Secretary, Bihar by order dated 4th March 1997 (Annexure-16) passed an order declaring the aforesaid appointment of the writ petitioner as illegal. Consequently, by an order dated 9th July 1997 (Annexure-17), issued by Regional Deputy Director of Education, Koshi Division, Saharasa, his appointment was cancelled. The writ petitioner, being aggrieved by the aforesaid order dated 4th March 1997 (Annexure-16) and order dated 9th July 1997 (Annexure-17) preferred C.W.J.C. No. 2541 of 1997, which was allowed by order dated 23rd October 1997 passed by the learned single judge (Coram: Hon’ble A.K. Ganguly, J.) of this Court on the ground of infraction of the principles of natural justice. However, direction was given by this Court to pass a fresh order after giving an opportunity of hearing to the writ petitioner. Relevant portion of the aforesaid order dated 23rd October 1997 passed in C.W.J.C. No. 2541 of 1997 is reproduced herein below:- “This Court, however, makes clear that this Court has not gone into the merits of the orders at Annexures 16 and 17. Those orders have been quashed merely on the ground of following the incorrect procedure, namely, violation of the principles of natural justice while passing the said order. This Court, Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 5 therefore, directs respondent no.3 (The Director Secondary Education-cum- special Secretary, Government of Bihar) to issue notice to the petitioner to show cause why his reappointment should not be cancelled.” Challenge to the aforesaid order dated 23rd October 1997, by the State of Bihar and its functionaries failed and the aforesaid order passed by the learned single judge was affirmed by a Division Bench of this Court by order dated 24th March 2004 (Annexure-20) passed in L.P.A. No. 1459 of 1997. In compliance of the order dated 23rd October 1997 (Annexure-18) passed in C.W.J.C. No. 2541 of 1997 by the learned single judge, duly affirmed by an order dated 24th March 2004 (Annexure-20) passed in L.P.A. No. 1459 of 1997 by a Division Bench of this Court, though the writ petitioner was reinstated in service, but a letter dated 21st September 2004 was issued by the Deputy Director of Secondary Education to the Regional Deputy Director of Education, Saharsa directing him to appear on 30th September 2004 before the Director, Secondary Education, Bihar, Patna with all relevant records regarding appointment of the writ petitioner on the post of Clerk. A copy of the aforesaid communication was also forwarded to the writ Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 6 petitioner with a direction to appear on the date fixed for hearing in the matter. Subsequently, a separate notice was also issued to the writ petitioner by the Director, Secondary Education, Bihar asking him to show cause as to why his appointment, on the post of Clerk, be not cancelled. On the basis of enquiry held and after giving full opportunity of hearing to the writ petitioner, final order dated 6th March 2006 (Annexure-30) was passed by the Director, Secondary Education, Bihar, Patna terminating the service of the writ petitioner from the post of clerk. The writ petition filed by the writ petitioner- respondent herein has been allowed by the learned single judge by the impugned judgment and order dated 6th April 2011, the impugned order of termination has been set aside and he has been directed to be reinstated in service with all consequential benefits. Hence, the present appeal by the State of Bihar and its functionaries. Mr. Rajiv Roy, learned Government Pleader No. 5, appearing on behalf of the appellants, has submitted that order dated 20th July 1993 appointing the writ petitioner on the post of clerk, was per se illegal, in violation of Government’s circulars and orders having statutory force and contrary to the direction issued by this Court in C.W.J.C. No. 10387 of 1992. He further submits that initially the writ petitioner was appointed purely on Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 7 temporary basis against the leave vacancy, since the incumbent was sent for training and he hardly worked for about eight months in the year 1987-88. Since the writ petitioner was not reappointed, he approached this Court in C.W.J.C. No. 10387 of 1992. A Division Bench of this Court by an order dated 4th November 1992 (Annexure-10) declined to issue any direction for appointment/ reappointment of the writ petitioner. However, an observation was made that for filling up future vacancies, case of the writ petitioner shall be considered on its own merit along with other eligible candidates, but the State shall sympathetically consider relaxation of age limit of the writ petitioner at the time of appointment in future. According to the learned counsel, on the basis of aforesaid observations, the writ petitioner could not have been appointed on the post of Clerk by order dated 20th July 1993 as a special case, particularly without following the procedure prescribed under the law. He next contended that on the basis of the direction issued by this Court in C.W.J.C. No. 2541 of 1997, duly affirmed in L.P.A. No. 1459 of 1997, a proceeding was started and after giving an opportunity of hearing to the writ petitioner, final order was passed terminating/cancelling the appointment of the writ petitioner. He also urged that the learned single judge has recorded a finding of fact that procedures for appointment were not fully complied with, Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 8 yet writ petition has been allowed and direction has been issued for reinstatement of the writ petitioner in service with all consequential benefits, which according to him is not sustainable in the eye of law. The Appeal has been contested by the respondent- writ petitioner. Mr. S.B.K. Mangalam, learned counsel appearing on behalf of the writ petitioner, has supported the impugned order passed by the learned single judge. According to him, a notice was issued on 6th January 1989 by the Regional Deputy Director of Education, Koshi Division, Saharsa for filling up the vacant Class- III posts. The writ petitioner, besides others, applied and an order for holding interview was issued on 25th June 1989 directing the writ petitioner to appear in the interview on 17th July 1989. After holding interview of the candidates, a panel was prepared but appointments were not made. Hence, the respondent- writ petitioner approached this Court in C.W.J.C. No. 10387 of 1992, which was disposed of on 4th November 1992 with certain observations in favour of the writ petitioner. According to him, in the light of the observation of this Court, the steps were taken by the respondent-authorities and finally the writ petitioner was appointed vide order dated 20th July 1993 by the Regional Deputy Director of Education, Saharsa as special case. It was also Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 9 contended on behalf of the respondent- writ petitioner that since he remained in service for quite a long time, therefore, even if his appointment is treated to be irregular, he is entitled to be regularized on the post in the light of the judgments of this Court and the Apex Court. He has placed reliance on the following judgments:- (i) Ram Krishna Dubey Vs. State of Bihar & Ors., [ 2008(1) PLJR 841]. (ii) State of Bihar and Ors. Vs. Indra Mohan Rai, [2009(2) PLJR 869]. (iii) State of Karnataka and Ors. vs. M.L.Kesari and Ors.[ (2010)9 SCC 249]. After having heard the parties at length and on examination of materials on record, we find that appointment of writ petitioner on the post of Clerk by order dated 20th July 1993 (Annexure-13) was in violation of the procedure prescribed under the law. Neither any advertisement was issued nor any panel was prepared nor the rules of recruitment was followed. Apparently, rules of reservation at vogue were conveniently flouted. The case of the respondent- writ petitioner could not have been considered as a special case, even in the light of the order dated 4th November 1992 passed in C.W.J.C. No.10387 of 1992. In the aforesaid order dated 4th November 1992, this Court had observed for considering the case of the petitioner sympathetically for relaxation of age only in Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 10 future appointment and nothing beyond. Apparently, on certain extraneous consideration, appointment of the writ petitioner was made by wrongly interpreting the aforesaid order passed by this Court. We further find that the order dated 6th March 2006, terminating the services of the petitioner, was in conformity with the observations made by this Court in C.W.J.C. No. 2541 of 1997. The writ petitioner was given full opportunity of hearing before passing the final order. Learned single judge has also held in paragraph-8 of the impugned order that the procedure was not complied with before making the appointment of the petitioner. On close scrutiny of the earlier orders passed by this Court, we find that the learned single judge has committed an error of record, while passing the impugned order. There was no observation by this Court for considering the case of the petitioner as a special case. Only observation was regarding relaxation in age limit in future vacancy and nothing beyond. The judgments referred to by the learned counsel for the writ petitioner are not applicable in the facts of the present case. In the case of Ram Krishna Dubey vs. State of Bihar (Supra) the petitioner of that case was employed by absorption and was given all benefits of permanent Government employee. After more than ten years of his regularization, his service was terminated and Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 11 direction was issued for recovery of all emoluments paid to him during the period of his service. In the case of State of Bihar vs. Indra Mohan Rai (supra) the petitioner was reinstated in service by virtue of order passed by this Court and after twelve years of his reinstatement, action was initiated for termination of his service. In that background the action of the respondent- State was not approved. In the case at hands, the appointment of the writ petitioner by order dated 20th July 1993 (Annexure-13) is in the teeth of rules of recruitment and void ab initio. Service of the writ petitioner came to be terminated just after four years by an order dated 9th July 1997 (Annexure-17). Hence, the ratio laid down by this Court in the case of Ram Krishna Dubey vs. State of Bihar (supra) as also in the case of Indra Mohan Rai Vs. State of Bihar (supra) are quite distinguishable and cannot be applied in the facts of the present case. A Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi (3) and others [ (2006)4 SCC 1 ] has clearly laid down the law that rule of equality in public employment is a basic feature of our Constitution. It has further been held that unless the appointment is in terms of relevant rules and after proper competition amongst eligible persons, same would not confer any right on the appointee. Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 12 We are tempted to quote a portion of paragraph 43 of the aforesaid judgment, which reads as follows: “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 13 continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.” Reliance placed by learned counsel for the writ petitioner on the case of State of Karnataka vs. M.L. Kesari (supra) is also misconceived in the facts and circumstances of the present case. The Supreme Court in the aforesaid case has merely reiterated and explained the principles enunciated by the Constitution Bench of the Apex Court in the case of Secretary State of Karnataka v. Uma Devi(3) (supra). It has been simply directed that in case the employee was not considered for regularization in terms of Uma Devi’s case because of pendency of certain litigations and the employee has completed ten years of continuous service without any benefit or protection of an interim order of a court or a Tribunal, then his case may also be considered for regularization within the time framed by the Supreme Court. It is not the case of the regularization of the service of the writ petitioner and subsequent cancellation after long time; rather it is a case of a patently illegal appointment of the writ petitioner Patna High Court LPA No.1055 of 2011 (5) dt.08-08-2011 14 on the post of Clerk. The appointment of the writ petitioner has been cancelled by following the procedure prescribed under law and after giving an opportunity of hearing to the writ petitioner, particularly in the light of the observation made by this Court in C.W.J.C. No. 2541 of 1997. For the reasons recorded above, we respectfully disagree with the order passed by the learned single judge. Accordingly, impugned judgment and order dated 6th April 2011 passed in above C.W.J.C. No. 8925 of 2005 is set aside and this Appeal is allowed. Consequently, above C.W.J.C. No. 8925 of 2005 is dismissed. The Interlocutory application stands disposed of. The parties shall bear their own cost. BTiwary/ (R.M. Doshit, CJ) (Birendra Prasad Verma, J)