IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.663 of 2005 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Department of Animal Husbandry, Government of Bihar, Patna 3. The Director, Department of Animal Husbandry, Government of Bihar, Patna 4. The Regional Director, Animal Husbandry, Saran Region, Saran 5. The District Animal Husbandry Officer, Siwan Versus RAKESH KUMAR SINGH, S/O Sri Alakh Sharan Singh, resident of Mohalla- Mithanpura, P.S. Mithanpura, District Muzaffarpur ----------- 11 10-02-2009 Heard learned counsel for the appellant in respect of limitation petition as well as on merits. Inspite of notice nobody has appeared on behalf of sole respondent to oppose this appeal. Considering the explanation for condonation of delay, the prayer to condone the delay made in I.A. no. 3029/2005 is allowed. On merits it has been submitted that the facts clearly show that adhoc appointment given to the writ petitioner (respondent herein) on the post of Ganak on 21.6.1989 was without recourse to the procedure for regular appointment laid down in the rules and without meeting with the constitutional requirement of considering cases of other eligible persons. It has further been submitted that regularization of such kind of entry into service on 19.7.1989 was equally bad in law. It has been submitted that the writ court did not hold the appointment of writ petitioner to be legal and proper but merely followed the judgement of Division Bench in LPA no. 778/2003 by which the LPA was dismissed on 12.9.2003. The said LPA arose out of an order of learned Single Judge dated 22.11.2002 in CWJC no. 10695/1998. Reliance was also placed upon another order dated 23.9.2004 passed in CWJC no. 7136/1999. - 2 - Learned counsel for the appellant has taken us through the Division Bench judgments dated 6.12.1999 contained in annexure-1 and 25.1.2005 contained in annexure-2 passed in LPA no. 163/1999 and CWJC no. 1486/1999 respectively. It has been rightly submitted that in both the aforesaid judgements of the Division Bench similar appointments made by Regional Director, Animal Husbandry Department was held to be without jurisdiction and as such the appellant, as per those judgements, could not have been regularized. In the later judgement dated 25.1.2005 (annexure-2) the Division Bench has taken notice of order of the Division Bench dated 12.9.2003 passed in LPA no. 778/2003 and has found that the said order did not consider the relevant questions while dismissing the appeal and further it was per incurium without noticing the earlier Division Bench judgement and order such as one dated 6.12.1999 contained in annexure-1. On going through the judgements of the Division Bench contained in annexures 1 and 2 We find that the writ court has allowed the writ petition of respondent on the basis of judgements and orders which are contrary to Division Bench judgements passed earlier (contained in annexure-1) as well as passed later (contained in annexure-2). The precedent relied upon by the writ court has been held by the Division Bench in annexure-2 to be per incurium. We are in agreement with the view of the Division Bench judgements contained in annexures 1 and 2. Allowing the writ petition would have the effect of encouraging back door appointments made de hors the - 3 - rules of appointment and in violation of constitutional mandate of equality in matters of public appointment. In view of aforesaid discussion, the judgement under appeal is set aside and the writ petition is dismissed. This appeal is, accordingly, allowed. In the facts of the case, there shall be no order as to costs. BKS/ (Shiva Kirti Singh,J.) (J. N. Singh, J.)