IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13310 of 2008 KISHORI PRASAD W I T H CWJC No.14576 of 2008 SMT.VIDYA KESHRI W I T H CWJC No.12027 of 2008 SHILOMANI TUDU W I T H CWJC No.12056 of 2008 BANTU PANDEY W I T H CWJC No.11829 of 2008 SURYAKANT THAKUR W I T H CWJC No.11771 of 2008 BIJAY KUMAR CHOUDHARY W I T H CWJC No.14232 of 2008 BHUPENDRA NATH DAS W I T H CWJC No.13889 of 2008 BATESH NATH SINGH W I T H CWJC No.13525 of 2008 DEEN DAYAL SAH W I T H CWJC No.13919 of 2008 MD.LATIFUR RAHMAN W I T H CWJC No.13639 of 2008 SHIV NARAYAN SAH W I T H CWJC No.13661 of 2008 SUGAN LAL SAH W I T H CWJC No.18589 of 2008 SARITA SINHA W I T H CWJC No.18777 of 2008 SMT.SAVITRI DEVI W I T H CWJC No.12559 of 2008 ASHA RANI SINGH W I T H CWJC No.12333 of 2008 2 HIMANSHU SHEKHAR PRASAD KUMAR W I T H CWJC No.14152 of 2008 PRABHU NATH PRASAD VERMA W I T H CWJC No.2750 of 2009 DURGANAND JHA W I T H CWJC No.2738 of 2009 MD.AKHLAQUE W I T H CWJC No.2565 of 2009 MD.ALAUDDIN W I T H CWJC No.10318 of 2008 KAILASH SHANKAR W I T H CWJC No.13436 of 2008 UDAY KUMAR SINGH W I T H CWJC No.18566 of 2008 ARTI DEVI W I T H CWJC No.9658 of 2006 RAM DARSHAN THAKUR W I T H CWJC No.13659 of 2008 BISHNUDEO SINGH W I T H CWJC No.12356 of 2008 SHEO SHANKAR SHARMA W I T H CWJC No.13863 of 2008 CHANDESHWAR PRASAD SINHA W I T H CWJC No.17203 of 2008 BIRENDRA PRASAD YADAV W I T H CWJC No.13555 of 2008 TARKESHWAR MISHRA W I T H CWJC No.12731 of 2008 RAMJEE PRASAD SAH W I T H CWJC No.12229 of 2008 BIPIN PRASAD SINGH W I T H 3 CWJC No.12429 of 2008 DHIRENDRA KISHORE MISHRA W I T H CWJC No.12228 of 2008 NAWAL KISHORE SHARMA W I T H CWJC No.17386 of 2008 SMT.REKHA W I T H CWJC No.16490 of 2008 SMT.KAMLESH W I T H CWJC No.16880 of 2008 MD.ABDUL QUDDUS W I T H CWJC No.16449 of 2008 SMT.ASHA W I T H CWJC No.16930 of 2008 RAM NARESH MISHRA W I T H CWJC No.15394 of 2008 SMT.MANORMA Versus 1. THE STATE OF BIHAR. 2. The Additional Commissioner-Cum-Secretary, Human Resources Development Department, Govt. of Bihar, Patna. 3. The Secretary, Arts Culture and Youth Department, Govt. of Bihar, Patna. 4. The Secretary, Agriculture Department, Govt. of Bihar, Patna. 5. The Director, Secondary Education, Govt. of Bihar, Patna. 6. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 7. The District Education Officer, Motihari, Distt- East Champaran. …………… Respondents. For the Petitioners : Sri Rajendra Prasad Singh, Sr. Adv. Dilip Kumar Tewari, Adv. Rajeev Kr. Singh, Adv. Ram Sagar Singh, Adv. Sunil Kr. Singh, Adv. For the State : Braj Kishore Pd. Sinha, G.P. 3. Rachana, A.C. to G.P.-I, Anjani Kr. Sinha, S.C.20. ----------- 3/ 19/03/2009 Heard learned counsel for the petitioners and learned counsel for the State. 4 In this batch of writ applications the question of law arising for consideration including certain orders of this Court, being common in nature, this Court considers it proper to dispose of this batch of writ applications by a common order. For the sake of convenience this Court shall refer to the facts from C.W.J.C. No.13310/08 and the counter affidavit filed therein on behalf of the respondents. The petitioners were appointed as teaching and non-teaching staff by the erstwhile Managing Committee of the Private Schools and in some cases by the District Education Officer and in yet other cases by the Regional Deputy Director of Education. The schools in which they were appointed and were working came under the 1st scheme of Project Schools relevant for the year-1981-1982. The State Government decided to take over these schools designated as Project Schools for dissemination of education. Appointments so made was screened by a selection committee and the petitioners continued to discharge duties. A list of the selected candidates was also published by the Regional Deputy Director of Education on 9.3.1983. Their salary was stopped in or about August, 2002 when they were removed by an order dated 19.2.2004. The allegations 5 were that their appointment had been found to be irregular. Several writ applications were filed before this Court challenging the order of termination. The petitioner in C.W.J.C. No.13310/08 was one of the petitioners in C.W.J.C. No.4302/04 (led by C.W.J.C. No.12302 of 2003 and analogous cases). A Bench of this Court by its judgement and order dated 6.7.2005 inter alia noticed a wireless message bearing Memo. No.208/C/EDN dated 14.4.1987 that all teaching and non-teaching staff appointed by the Managing Committee/District Education Officer in the Project Schools during the period 1981-1982 shall be entitled to the benefit of regular pay-scale without any restriction. The Bench further noticed that the appointments had been scrutinized by a three-member committee under the chairmanship of the R.D.D.E. having the District Education Officer and the District Inspector of Schools as members thereof. Therefore, it was held that once such a decision had been taken and the procedures for their appointment initially followed was not required to be gone into and it could not be said that the entire exercise of screening and preparation of list of persons entitled to continue in the project schools was an 6 exercise in futility when the matters should have come to an end. The report of the three-member committee was the clinching issue and the orders of termination were quashed. It appears that this batch of writ applications led by C.W.J.C. No.12302 of 2003 covered not only project schools under the 1981-1982 scheme, but also under the 1984-1985 and 1988-1989 schemes. While the State preferred L.P.A. No.1211/05 and analogous appeals, M.J.C. No.2454/05 was filed by the State for modification of the order dated 6.7.2005, as aforesaid. The respondent State in the modification application contended that the judgement and order dated 6.7.2005 of this Court in C.W.J.C. No.12302/03 and analogous cases be confined in its operation to those appointed as teaching and non-teaching staff in the project schools under the 1981-1982 scheme only. This prayer was made specifically in context of C.W.J.C. No.4302/04 out of which C.W.J.C. No.13310/08 arises. The judgement of this Court dated 6.7.2005, therefore, became conclusive and final insofar as those appointed in the project schools of 1981-1982 scheme were concerned as the State itself accepted the legality of their appointments in pursuance of which the 7 modification application was allowed to that extent. It appears that L.P.A. No.1211/05 and analogous appeals came to be disposed by a common order dated 22.11.2006. Perhaps, the order dated 26.9.2005 in M.J.C. No.2454/05 was not brought to the attention of the Division Bench. For that reason a general order came to be passed referring the matter to a fresh committee when the impugned order dated 27.5.2008 came to be passed holding that the appointments were illegal and the question of regularization did not arise. Learned counsel for the petitioners in this batch of writ applications submitted that once the issue of those appointed in Project Schools in the 1981-1982 scheme was accepted by the State and attained finality when there was no occasion for the State to question the same in appeal for reason of its own stand in M.J.C. No.2454/05, to re-open the case of the petitioners in the garb of any orders of this Court in L.P.A. No.1211/05, which did not cover their cases makes the impugned order dated 27.5.2008 completely arbitrary insofar as they are concerned. Learned counsel for the State in this context, with reference to the pleadings of the petitioner in paragraph-28 of the writ application dealing with 8 M.J.C. No.2454/05 found it difficult to oppose the prayer of the petitioners when the counter affidavit dealing with the said paragraph of paragraph-17 simply states that it “needs no comment”. The petitioners were terminated from service. This Court set aside the order of their termination. The State preferred appeals. It consciously excluded persons like the petitioners appointed under the 1981-1982 project schools scheme from the Appeal. It sought a modification of the original order setting aside the termination orders excluding them. In effect, the State reserved its right to challenge in appeal those pertaining to the other schemes of project schools excluding the 1981-1982 scheme. The issue of appointment made by the Managing Committee or the District Education Officer of those coming under the Project Schools for the 1981- 1982 scheme, therefore, attained finality when the State accepted the legality of the appointments. Once the matter attained finality and the State did not question it in appeal, the respondents cannot be permitted by the impugned order dated 27.5.2008 to do indirectly what they cannot do directly. If the order of this Court in C.W.J.C. No.4302/04 and similar analogous applications has attained finality and has not been 9 questioned in appeal, the question of terminating their services by any subsequent orders simply does not arise. The impugned order of termination dated 27.5.2008 is, therefore, set aside as being arbitrary and suffering from non-application of mind insofar as those persons appointed by the Managing Committee or the District Education Officer who came to be appointed in the project schools under the 1981-1982 schemes are concerned. The order is quashed to that extent. As a consequence, the petitioners shall be deemed to have never been terminated from service and are entitled, for all practical purposes, to be considered as having continued in service and shall also be entitled to full salary for the periods in question. Those who are stated to have retired in the meantime shall be entitled to their salary till the date of retirement considering that though they were willing to work they were prevented from discharging duties. The applications stand allowed. KC ( Navin Sinha, J.)