IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7378 of 2008 S.M.EKRAMUDDIN Versus THE STATE OF BIHAR & ORS ----------- 4. 08.09.2008 Heard learned counsel for the petitioner and learned counsel appearing on behalf of respondents 1 to 10. The petitioner who held the post of Sr.P.A. with the Divisional Commissioner, Saran, is aggrieved by his order of termination dated 29.2.2008 at Annexure-32. The petitioner was appointed as Steno typist in the office of the District Magistrate, Saran in the year 1977. Two posts of Personnel Assistant (non-gazetted) to the Divisional Commissioner were sanctioned by the Revenue Department on 16.4.1981 pursuant to the creation of a new Saran Division. Quite obviously, when the post was sanctioned the funds for payment of salary to those appointed to this post simultaneously came to be sanctioned. On the issue of competence for appointment in reply to a query by the Commissioner, Saran Division, the Joint Secretary, Department of Personnel and Administrative Reforms by his letter dated 22.10.1981 wrote that appointments to the post of P.A. to the Commissioner are not made by the Personnel and Administrative Reforms Department, but are to be made by the Commissioner himself in accordance with the Boards Miscellaneous Rules and instructions issued from time to time by the Revenue Department. An advertisement followed on 6.11.1984 by the Commissioner of Saran Division. It is not in controversy that e an advertisement was - 2 - issued rather what is contended on behalf of the respondents is that the advertisement was not strictly in accordance with the manner prescribed by the Board’s Miscellaneous Rules. That the Candidature of the petitioner along with others were considered in pursuance of the same is also not in dispute. The petitioner then came to be selected/appointed on second post of P.A. on 11.6.1985 and was confirmed on 30.11.1991. The first sanctioned post was held by one Shri Suraj Prasad Singh. On 13.5.1985 one of the two sanctioned posts of P.A. to the Commissioner was upgraded to a gazetted post w.e.f. 1.1.1985. This was the post held by the aforesaid Suraj Prssad Singh as contended by the petitioner. Reliance in support of the assertion is placed on annexure-6, dated 13.5.1985, upgrading the status of Shri Suraj Prasad Singh accordingly. Shri Singh is subsequently stated to have been deceased in 1993. The petitioner then applied for being upgraded to the gazetted post consequent to the vacancy by the death of Mr. Singh. On 8.3.1994 in pursuance of the order issued under the signature of the Commissioner, Saran Division on the consequent vacancy arisen for upgrading the post by virtue of the order dated 13.5.1985 and the death of the incumbent the petitioner was upgraded to the post of Sr.P.A. to the Commissioner, a gazetted post. On 8.3.1997 the Commissioner Saran Division confirmed the petitioner on the post of Sr. P.A. in gazetted rank. Thereafter on 5.5.1997 the Commissioner Saran Division wrote to the Secretary, Department of Personnel and Administrative Reforms Patna. This - 3 - communication contained a detailed narration of the two posts non-gazetted of P.A. sanctioned, one of them being upgraded occupied by the aforesaid Shri Suraj Prasad Singh, his demise and the upgradation of the petitioner to that post and that he was confirmed upon the same. That on request his name be entered in the joint cadre of P.As. It stated that in case the confirmation or approval of the Administrative and Personnel Reforms Department was required and it may kindly be issued and if there was any infirmity in the proposal by the Commissioner, the infirmity may be communicated to him to enable him to take corrective action accordingly. At this stage, the letter of the Personnel and Administrative Reforms Department dated 16.4.1981 as noticed that the Commissioner was competent to make appointment assumes significance. In reply to the same on 24.6.1998 the Personnel and Administrative Reforms Department responded by saying that the petitioner cannot be included in the joint cadre in the status as Sr. P.A. to the Commissioner because his appointing authority was the Divisional Commissioner himself and who was also competent to promote him as also confirm his services. The petitioner in pursuance of his appointment as P.A. on the second post in 1985 and his upgradation in 1994, continued to perform his duties peacefully with no objection from any quarter with regard to legality/illegality of his appointment. His troubles started when he sought the benefits of Assured Career Progression - 4 - Scheme and unfortunately more or less simultaneously was afflicted with cancer. His illness partially affected his performance of duties when he was unable to cope with long hours and arduous work. This invited ire from interested quarters. He was then issued a show cause notice dated 28.5.2007 by the new incumbent Commissioner, Saran Division through his Secretary virtually questioning his own actions as Commissioner in appointment. That the petitioner had been appointed and confirmed by the predecessor Commissioner was an attribute which the show cause notice preferred to conveniently ignore. The issues raised were that the petitioner was appointed on one of the two posts of P.A. in non- gazetted rank. One of them was a reserved post and, therefore, the petitioner could not have been appointed against the same. The material noticed in the communications of the predecessor commissioner, Saran Division, dated 5.5.1997, not controverted by the Department and Personnel and Administrative Reforms in its reply dated 24.6.1998, that one of the two posts was upgraded to Sr.P.A. in gazetted rank and upon the death of the previous incumbent in 1993 the petitioner was upgraded in 1994 was an aspect suppressed in the show cause. Likewise, the show cause notice urged that the power to make appointment on the post of P.A. to the commissioner vested in Personnel and Administrative Reforms Department. That this was to be done in pursuance of a written examination. This Court has already noticed the communications dated - 5 - 16.4.1981 reiterated on 24.6.1998, the Personnel and Administrative Reforms Department had stated that it was the Commissioner Saran Division who was competent to make such appointment. While the third ground of the show cause stated that no sanctioned post of Sr. P.A was available, the show cause is completely silent with regard to the letter of erstwhile Commissioner dated 5.5.1997 and the order dated 13.5.1985 appointing the said Shri Suraj Prasad Singh on the upgraded post of Sr. P.A.. If the post had not been upgraded, quite obviously the issue of promoting Shri Suraj Prasad Singh to this upgraded post of Sr. P.A. in gazetted rank w.e.f. 1.1.1985 simply could not have arisen. It is not the case of the respondents that Shri Suraj Prasad Singh was upgraded contrary to law. The petitioner filed his reply to the show cause; when followed the impugned order. The petitioner, in all, came to be issued nine show cause notices in a short period of one month, a fact which speaks eloquently of the disposition against him. The impugned order harps on the same issue of only two post of P.A. to the Commissioner; one of them was reserved and appointment to be made by the Personnel and Administrative Reforms Department. That the petitioner had failed to produce any document with regard to the upgradation of one of the posts of P.A. and on which the petitioner came to be appointed as Sr. P.A. That no departmental records were available of such upgradation. That the advertisement issued for appointment of P.A to the - 6 - Commissioner was not in consonance with laws. That reservation roster was not followed. To this Court, there are certain striking features in the impugned order. One of them is the aspersion cast in the impugned order that it was the erstwhile Commissioner who illegally appointed the petitioner contrary to the requirement of appointment to be done by the Personnel and Administrative Reforms Department. If the reservation roster has not been followed, the petitioner was the person seeking appointment. Those who are making appointment were required to follow the reservation roster. If they chose not to follow it, being officers far superior of the rank of Commissioner, the petitioner cannot be faulted. At paragraph 12 of the counter affidavit the respondents contend that the petitioner manipulated. This pre-supposes that there are other waiting to be manipulated. Again item 13 at page 3 of the impugned order allegation is made that persons who appointed him did not follow the instruction of the Personnel and Administrative Reforms Department dated 28.1.1976. Not only was the Commissioner in league with the petitioner, but the entire Selection Committee was in league with the petitioner. In this manner, the conclusion has been arrived at that not only did the petitioner manipulate his appointment but he manipulated his promotion also to the post of Sr. P.A. The actions were bilateral. At this stage, the submission of the petitioner that he already held a substantive post of steno typist in government office - 7 - under Collector, Darbhanga assumes significance. It is difficult to comprehend that a person who is already in government service substantively will risk his status of a permanent employment by seeking illegal backdoor entry in government service at another level. In the entire allegation against the petitioner except a vague suggestion that he manipulated everything, this Court doe not find any material to hold that the petitioner played fraud, misrepresented or forged documents at any stage. In an appointment made as far back as in 1985 he is stated to have been questioned in 2008 i.e. only 23 years later. The questions raised in the show cause notice relate to official procedures and compliance with the same by the authorities of the State Government itself. This Court is satisfied from the nature of the issues sought to be raised that present is not a case simpliciter of forged, fake and fabricated appointment making it void ab initio. The issues raised are of a nature which had to be more seriously delved upon by framing of charges, laying out a documents to be served on the petitioner with an opportunity to the petitioner to rebut the same along with documentary, oral and other evidence when the disciplinary authority was required to arrive at his independent determination of nature of appointment whether it be an illegal or irregular. The permanent status of the petitioner was at stake. The counter affidavit justifies not holding of a regular departmental proceeding for an order of dismissal by urging that the appointment was ab initio void. The Court has already noticed that it was not a case simpliciter of an illegal - 8 - appointment. The short-cut that the respondents had attempted to adopt is a clear case of victimization. This Court is compelled to make this observation at this stage as it gets clear impression that even while the respondents insisted on saying that the petitioner is very bad man simultaneously they take every other possible measures to shield those offices far superior in rank who inducted the petitioner. If the petitioner has to go, those who inducted him, appointed him, confirmed him, recommended him, must also go. If the petitioner was appointed illegally, as suggested by the respondents there was someone who took the benefits by the same. Those who made hay while the sun shone must face the flak now also. The orders of termination dated 29.2.2008 is, therefore, not sustainable. It is accordingly quashed. If the respondents propose to proceed to suspend/ departmentally against the petitioner, it shall be their exclusive discretion. This Court directs that simultaneously with the initiation of such suspension/departmental proceedings those who appointed the petitioner, no matter who they may be and what rank they hold, whether they be in service or whether they have retired, must appropriately be proceeded against and a first information report must be lodged against such officers and appropriate proceeding for recovery of the wages paid to the petitioner from their salary or pension be initiated, as the case may be. This is - 9 - necessary, because of the clear stand of the respondents that the Commissioner made the appointment wrongly. The Commissioner ignored the laws. The Commissioner ignored the departmental circulars. The beneficiary was the petitioner. This view of the Court, finds full support from the judgments of the Supreme Court in AIR 1996 253 (Dr.G.N.Khajuria & ors. Vrs. Delhi Development Authority & ors.), paragraph 10. Similar view has been taken in AIR 1996 SC 715 (Delhi Development Authority Vrs. Skipper Construction & anr.), paragraph 6. The writ application stands allowed. HR ( Navin Sinha )