IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3071 of 2009 Birendra Kumar, Son of Ram Ratan Prasad, Resident of Village-Duli Bigha, P.O.- Telari, Police Station- Nimchak Bathani, District- Gaya. ---------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Human Resources Development Department, Bihar, Patna. 3. The Director, Secondary Education Department, Bihar, Patna. 4. The District Magistrate, Gaya. 5. The District Education Officer, Gaya. 6. The Chairman, Management Committee, Gulabchand Janta High School, Nimchak Bathani, Gaya. 7. The Headmaster cum Secretary, Management Committee, Gulabchand Janta High School, Nimchak Bathani, Gaya. 8. The members, Management Committee, Gulabchand Janta High School, Nimchak Bathani, Gaya. 9. Suraj Marandi, Son of Late Tanik Lal Marandi, Resident of Village-Wadhel, Post and P.S.- Haveli, Kharagpur, Dist. Munger. 10. Munna Kumar Kora, Son of Karu Kora, Resident of Village- Wadhel, Post and P.S.- Haveli, Kharagpur, Dist. Munger. --------- Respondents ----------- 6 24.6.2009 Heard counsel for the petitioner and counsel for the State. In pursuance of the earlier order of this Court dated 20.5.2009, the Director, Secondary Education and District Education Officer, Gaya are personally present. The prayer in this writ application reads as follows:- “i) For issuance of a writ in the nature of mandamus or any other appropriate writ for commanding the respondents to regularize the petitioner on the post of Peon or any other suitable 2 class IV post in Glabchand Janta High School Nimchak Bathani, Gaya (hereinafter referred to as „School‟ only). ii) For issuance of a writ in the nature of mandamus or any other appropriate writ for commanding the respondents to make the payment of salary of the petitioner for the period from 31.3.98 till date. iii) For holding that the petitioner having worked continuously for a period of almost 11 years in the School is entitled to be regularized on the post of Peon or any other suitable class IV post and he is also entitled for his salary for the aforesaid period.” For all these prayers, one has to go to the letter of appointment of the petitioner. There is no such letter of appointment but there is a resolution about the appointment of the petitioner, which reads as follows:- ^^izLrko la0 2 & fon~;ky; esa vkns”kiky ¼f}rh;½ ds fjDr LFkku ij fu;qfDr ij fopkj %& LFkkuh; fo/kk;d Jh jktsUnz izlkn us viuk earO; izdV fd;s fd fon~;ky; dh lEifr dh lqj{kk ds fy, LFkkuh; ukStoku O;fDr Jh ohjsUnz dqekj firk dk uke Jh jke jru izlkn] xzk0 nqyh fcxgk] iks0 rsykjh] Fkkuk& vrjh] ftyk x;k dks voSrfud :i ls vkns”kiky ds fjDr LFkku ij fu;qDr fd;k tk;A loZlEefr ls LFkkuh; fo/kk;d ds earO; dks Lohdkj fd;k x;k rFkk LFkk;h :i ls fof/kor fu;qfDr ds fy, lacaf/kr foHkkx dks fu;qfDr dh Lohd`fr nsus ds fy, vuqjks/k fd;k tk;A** 3 There is no doubt that the school of the petitioner is a Government High school and governed by statutes prescribing nine sanctioned post of teachers, one sanctioned post of clerk and two sanctioned post of peon. Obviously, for appointment on these sanctioned posts, the Government has also framed rules under proviso to Article 309 of the Constitution read with Section 15 of the Take Over Act, 1981. Under the rules (lsok “krZ fu;ekoyh), detailed procedure has been laid down for appointment on teaching and non-teaching posts and at least from perusal of the rules, it would be clear that the Managing Committee has been given no power to make appointment of any post including a Class-IV post of peon. Learned counsel for the petitioner, however would invoke the doctrine of equity on the ground that the petitioner has been working in the school since 1988 and therefore, his services should be regularized. Unfortunately, this part of submission relating to applicability of the principles of equity was noticed and rejected by the Constitution Bench of the Apex Court in the 4 case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. reported in 2006 (4) SCC 1 wherein it was held that one who seeks equity must do equity. The appointees in violation of the mandatory provision of Article 14 & 16 are the sole beneficiaries of such illegal appointment and therefore, they cannot invoke equity as they have themselves entered in service after doing gross inequity to other eligible candidates. In the present case, the M.L.A. who was the Chairman of the Managing Committee having no power of appointment of Class-IV posts had known only the petitioner as an educated unemployed person fit for being appointed as a peon in the school and that is how, the Managing Committee having no power of appointment had also made a recommendation for appointment and created a hope in the petitioner. Such appointment would not be binding on the State and therefore, there would be no question of regularization of a rank illegal appointment. At this place, one must also take note the mode and manner of appointment of the 5 petitioner on the post of peon in the school. It is the case of the petitioner himself that he was appointed by the Managing Committee of the school but then he claims that other two peons have also been appointed in a similar manner by the Managing Committee of the school. Counsel for the petitioner, therefore, submits that when the two other peons are being treated as regular employees of the school and are being paid salary, the same benefit of payment of salary should also be extended to the petitioner. Mr. P.K. Verma, learned AAG-XI, however, would submit that the other two appointments on the post of peons have been made as per the prescribed norms and in fact after being selected from the Collectors’ Panel in terms of Circular No. 16440 & 16441 respectively both dated 3.12.1980. This Court would find that in absence of any rejoinder to the counter affidavit denying the specific averments made in paragraph no.10 of the counter affidavit, the appointment of other persons can also not be questioned in an indirect manner by the petitioner specially 6 when they have not been impleaded as parties to this writ application. The petitioner, however, if he likes may still adduce evidence to the alleged illegalities in the appointment of the other two peons in the school by filing a representation to the Director of the Secondary Education who shall look into the matter after examining the relevant records and if he finds that the other peons have been appointed in violation of the rules/circular/Government decision, he would get the post advertised and the case of the petitioner will also be considered after giving necessary relaxation in the age. With the aforementioned observations, this application is disposed of. Rsh (Mihir Kumar Jha, J.)