IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.726 of 2000 1. Mithilesh Kumar, son of Sri Nitya Nand Bhagat, resident of Mohalla Mission Compound, P.S. Motihari, District East Champaran 2. Shivkant Pandey, son of late Deo Nandan Pandey, resident of village Nawada, P.S. Govindganj, District East Champaran 3. Pradeep Kumar, son of Sri Narayan Tiwary, resident of village Madhubani, P.S. Dariyapur, District East Champaran … Petitioners Versus 1. The State Of Bihar 2. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur … Respondents With Miscellaneous Jurisdiction Case No.1216 of 2008 1. Mithilesh Kumar, son of Sri Nitya Nand Bhagat, resident of Mohalla Mission Compound, P.S. Motihari, District East Champaran 2. Shivkant Pandey, son of late Deo Nandan Pandey, resident of village Nawada, P.S. Govindganj, District East Champaran 3. Pradeep Kumar, son of Sri Narayan Tiwary, resident of village Madubani, P.S. Dariyapur, District East Champaran … Petitioners Versus 1. The State Of Bihar 2. Sri Radha Krishna Singh Yadav, the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur … Contemnor- Opp.Parties ---------------------------------- 3. 6.9.2011 C.W.J.C.No. 726 of 2000 Heard Mr. Basant Kumar Choudhary, learned Senior counsel for the petitioners and the learned counsel for the State. The prayer of the aforesaid three petitioners in this writ application reads as follows: “(i) For issuance of a writ in the nature of Certiorari for quashing of the order contained in Memo No. 816, 813 and 815 dated 26.11.1999 passed by the respondent no.2 by which the services of the petitioners respectively have been terminated. (ii) For issuance of a writ in the nature of mandamus directing and commanding the respondents to give the petitioners all consequential benefits after quashing of the aforesaid orders dated 26.11.1999.” 2 The facts in brief giving rise to the present writ application lies in a very narrow compass. It is claimed by the petitioners that the Regional Deputy Director of Education vide his letter dated 16.9.1992 addressed to the Employment Exchange had solicited the names of eligible candidates for appointment on the post of Clerk in different field offices of the Education Department in Tirhut Division and an advertisement in the newspaper was also published vide Annexure 1 to the writ application. It is claimed by the petitioners that they too had applied for the post of Clerk in response to the aforementioned advertisement, whereafter a panel dated 27.2.1993 was prepared on the basis of the marks obtained by the petitioners in the Matriculation Examination. The further case of the petitioners is that on the recommendation of the Divisional Establishment Committee respondent no.2 the Regional Deputy Director of Education (R.D.D.E.), Tirhut Division, had appointed petitioners no. 1 and 3 on the post of Clerk and petitioner no.2 on the post of Peon vide orders dated 30.12.1993, 30.6.1993 and 4.7.1993 respectively and all of them were posted in the field offices of the Education Department, namely, Primary Teachers Training College, Balmikinagar and the office of the District Education Officer, Bettiah. It is further claimed by the petitioners that their payment of salary was made in view of an order of this Court in C.W.J.C.No. 1042/1995 and subsequently all three of them were subjected to a show cause notice dated 12.12.1998 for explaining as to why their illegal appointment 3 should not be cancelled. It is also alleged that for termination of service of the petitioners a direction has also been issued by the Director, Secondary Education, in his letter dated 9.12.1998 and the impugned order dated 26.11.1999 was passed by the R.D.D.E., Muzaffarpur only by way of compliance of the direction of the superior authority, namely, Director, Secondary Education. Mr. Basant Kumar Choudhary, learned counsel for the petitioners, had assailed the impugned orders of termination basically on the ground of violation of principles of natural justice and in this regard he had also highlighted on the reasons mentioned in the impugned order of termination of the service of the petitioners. He was of the view that since the R.D.D.E., Muzaffarpur was the competent appointing authority any decision for termination of service of the petitioners could have been taken only if there was any flaw in the appointment of the petitioners but when all the required procedure for appointment from the open market was followed in the case of the petitioners they could not have been removed from service and that their such removal was based on a dictation given by the Director, Secondary Education. Learned counsel for the State, on the other hand, by placing reliance on the counter affidavit filed by the R.D.D.E., Tirhut Division, Muzaffarpur has explained that the entire story of the petitioners of there being an advertisement followed by the selection and preparation of panel is a humbug, inasmuch as there are no papers in the office of the R.D.D.E., Muzaffarpur to show that any such advertisement was issued by the office in question or 4 any selection process had been undergone. It has also been explained that the so called panel in fact is on the face of record a waiting list which is not inconformity of the principles of preparation of panel and in fact there is also no trace of such panel. In the counter affidavit the respondent R.D.D.E., Muzaffarpur has also explained that neither appointment letters of the petitioners nor the alleged recommendation of the Divisional Establishment Committee is in existence. It has also been submitted by the learned counsel for the State that when the petitioners had approached this Court for payment of their salary in C.W.J.C.No. 1042/1995 assailing the correctness of the order dated 11.4.1994 passed by the District Magistrate, West Champaran withholding their payment of salary till completion of enquiry into legality of their appointment, this Court had itself given liberty to the authorities to examine the process of appointment of the petitioners in terms of the Departmental Rules. It has been further explained that when the petitioners were directed to produce any proof with regard to their appointment being legal and justified they had failed to satisfy the authorities and as such, after giving sufficient opportunity to the petitioners when the deponent R.D.D.E., Muzaffarpur was satisfied that the entire process of appointment of the petitioner was tainted, the resultant impugned orders were passed terminating the services of the petitioners. In this regard it has also been submitted by the learned counsel for the State that there was no dictation by the Director, Secondary Education to the R.D.D.E. to terminate the services of the 5 petitioners in isolation and in fact he in the capacity of the Head of the Department under Shiksha Anusachiviya Sewa Sambargikaran Niyukti, Pronatti Awan Ashthanantaran Niyamawali, 1974 has exercised his statutory power by directing the R.D.D.E., the cadre controlling authority, to look into the legality or otherwise in the appointment of the petitioners and a large number of other similarly situated persons illegally appointed by the then R.D.D.E. in 1993 and thereafter pass an appropriate order in accordance with law. In the light of the aforementioned facts and the submissions the first question would be as to whether the appointment of the petitioners was made by following prescribed procedure so as to confer them with any right to continue on the post on which they were appointed. In this regard the petitioners in paragraph 8 of the writ petition have referred to a letter of the R.D.D.E., Muzaffarpur dated 16.9.1992 by which he is said to have made a request to the Employment Exchange to send the name of eligible candidates for appointment on the post of Clerk in Tirhut Division. The said letter is not on record and when the same is sought to be substantiated by the petitioners in paragraph 9, reference has been made to an advertisement issued by the R.D.D.E. himself which is surprisingly in the date of 10.2.1992 as would be evident from reading of Annexure 1 which is said to be the typed copy of such an advertisement. The said typed copy of the notice inviting application on 10.2.1992 by giving a period of one year, 20.1.1993 being the last date of filing of the application 6 in response to the alleged advertisement by itself would be sufficient to show that Annexure 1, the alleged notice, is a manufactured document. As a matter of fact the petitioners have also not enclosed any newspaper cutting/ advertisement to show that the notice in question dated 10.2.1992 was ever published in any newspaper. The whole story of appointment of the petitioners based on an advertisement published in newspaper is completely falsified, inasmuch as the subsequent requisition sent to the Employment Exchange on 16.9.1992 also does not seem to have made any response because there is nothing on record to show that the Employment Exchange of Muzaffarpur or for that purpose any other Employment Exchange had ever sent the names of the petitioners and others as eligible candidates. The story that then R.D.D.E., Muzaffarpur on 10.2.1992 had issued advertisement for filling up the vacant post of Clerk in the Project High Schools of Muzaffarpur Division and reference to 1974 Rules in paragraph 4 of the writ application would itself expose the petitioners to no uncertain extent, inasmuch as 1974 Rules are meant only for appointment in the field offices of the Education Department, such as office of the R.D.D.E., office of the District Education offices, office of Sub- divisional Education Officer, Primary Teachers Training College and other attached offices. For appointment in the schools including the Project Schools 1974 Rules are not applicable and therefore, it becomes clear that the statements made in paragraphs 4 and 5 of the writ application are not at all compatible much less 7 referable to the alleged advertisement for filling up the post of Clerk in Project High Schools. This Court, therefore, has no difficulty in holding that Annexure 1, the advertisement in question, was not and in fact could not have been made the basis for appointment of the petitioners, petitioners no. 1 and 3 on the post of Clerk and petitioner no.2 on the post of Peon in Primary Teachers Training College and the office of the District Education Officer. The petitioners claim that their appointment was made by the R.D.D.E., Muzaffarpur by complying 1974 Rules by way of preparation of a panel on 27.2.1993. Such hand-written photo stat copy of the panel produced by the petitioners refers to selection made by the Divisional Committee but 1974 Rules specifically lays down an Appointment Committee for each of the divisional cadre and for Tirhut Division a five member Committee consisting of three senior most District Education Officers and one amongst the senior most member in the Government Teachers Training College apart from the R.D.D.E. are the main member of the Committee. The panel in question does not show anything that the said panel was prepared by the five men Committee and as such, the so called waiting list (Pratiksha Suchi) as placed by the petitioners on record by way of Annexure 2 would also inspire no confidence, especially when the respondent successor R.D.D.E., Muzaffarpur has categorically denied existence of such panel. The fact that such panel was never made by way of selection of candidates would itself become clear, inasmuch as in 8 the said panel petitioner no.1 is shown to be at serial no.1 but his letter of appointment has been issued on 30.12.1993, whereas petitioner no.3, who is said to be at serial no. 16, had already been appointed on 30.6.1993. The typed copy of the appointment letter of petitioner no.1 bearing Memo No. 1129 dated 30.12.1993 and the typed copy of the appointment letter of petitioner no.3 bearing Memo No. 6852 dated 30.6.1993 would itself go to show that they are manufactured document which in absence of its original cannot be relied. It has to be noted that when they were asked to produce their appointment letter and other documents they had measurably failed to do so as has been recorded in the impugned order. The absurdity in the claim of the petitioners of their appointment made pursuant to an advertisement and selection by way of preparation of panel in fact has few parallel, inasmuch as even when the name of petitioner no.2 was said to have been included in the list of panel for the post of Clerk his appointment was made on the post of Peon. The only explanation given by petitioner no.2 in this regard that beggar being no chooser he had to accept such appointment on the post of Peon despite his being empanelled for the post of Clerk would, therefore, be at least an evidence of fact that neither the post of Peon was advertised nor any selection procedure for the post of Peon was followed and yet he came to be appointed on the post of Peon. The appointment of a Peon is governed by the Government Rules in Circular No. 1644 dated 3.12.1980 under which it is only the Collector of the District who has been given the power to issue an advertisement and 9 constitute a panel and send it to the respective controlling district authorities for making appointment from such panel. It thus becomes clear that the appointment of the petitioners was made in teeth of the statutory Rules and/or relevant Government circular which only are meant to ensure strict observance of principles of equality in the matter of public employment enshrined under Articles 14 and 16 of the Constitution of India. In this background if the respondents had directed the petitioners to file their show cause reply by issuing them specific show cause notice as with regard to illegality in their appointment and the petitioners have not brought on record their such show cause reply, they cannot be allowed to make a complain as with regard to the impugned order of their termination being bad on account of non-application of mind and/or its being based on a dictation of the Director, Secondary Education. As noted above, their claim of advertisement, preparation of panel, observance of 1974 Rules and the Government circular dated 3.12.1980, as raised in this writ application, have been found to be a hoax and as such, this Court would also find no flaw in the impugned order of termination of their service, wherein it has been categorically recorded that the prescribed procedure for appointment was not followed in their case and that their appointment was made in collusion with the appointing authority. As with regard to the story of alleged dictation once it has been found by this Court that the post on which the petitioners were appointed were governed by 1974 statutory Rules 10 in which the Director, Secondary Education, is the Head of the Department, it would also not find any force in that part of his submission of the learned Senior counsel for the petitioners that the Director, Secondary Education ought to have not asked the R.D.D.E., Muzaffarpur to look into the illegalities in the appointment of the petitioners and pass an appropriate order for termination of their service. Such direction of the Head of the Department, his subordinate controlling authority on being reported of the illegality in the appointment and for which this Court also had authorized the competent authority to hold an enquiry while disposing of C.W.J.C.No. 1042/1995 cannot be termed as dictation, inasmuch as the said letter of the Director, Secondary Education, dated 9.12.1998 was with reference to the query made by the R.D.D.E., Muzaffarpur in his letter No. 28 dated 25.9.1997 and the Director, Secondary Education had only asked the R.D.D.E., Muzaffarpur to complete the enquiry in terms of the direction given by this Court. The submission of the learned counsel for the petitioners that the petitioners have continued in service for a long period and as such, they should not be terminated from service after continuing for almost 18 years also cannot be accepted, inasmuch as when the petitioners came to be appointed in the month of June, 1993 or December, 1993 their illegality in appointment was noticed immediately by the Collector of the District, whereafter their payment of salary was stopped and when this Court in C.W.J.C.No. 4012/1995 had itself directed for 11 holding further enquiry and the matter was immediately taken up after disposal of the writ application, whereafter the R.D.D.E., Muzaffarpur having sought a direction of the Director, Secondary Education, had issued show cause notice and on certain query made by the petitioners and others had also given them second show cause, it cannot be said that the petitioners’ continuation for a period of little more than five years would have vested them with any right to continue in service. It has to be noted that the impugned order came to be passed on 26.11.1999 and the petitioners had been removed from service in 1999 itself. It is true that an interim order was passed in this case on 20.7.2000 staying operation of the impugned orders till the disposal of this case but the petitioners themselves did not report on duty till 19.2.2008 and as such, they cannot even claim relief on equitous ground. The petitioners in fact having obtained their appointment from the back door cannot otherwise claim equity, inasmuch as it is a settled principle of law that one who seeks equity must do equity. The petitioners having got their illegal appointment with the collusion of the then R.D.D.E., Muzaffarpur cannot claim any equity in their favour. Such illegal appointment in fact would confer no right to them as was held by the Apex Court in the case of State of Bihar vs. Upendra Narain Singh & ors., reported in (2009) 5 SCC 65, wherein the Apex Court had declared such illegal appointment to be an off-shoot of spoil system and in teeth of mandate under Articles 14 and 16 of the Constitution of India. 12 The petitioners, however, would be entitled to protect their salary already drawn by them for the period they had worked either prior to the impugned order of termination or to the extent they could work on or after 19.2.2008 when their joining were accepted in terms of the interim order of this Court. Since the impugned order also contained a clause for recovery of salary drawn by them which had remained stayed in view of the interim order of this Court, it now must be held that the petitioners would not be required to refund their salary, inasmuch as in the show cause notice given to them, as contained in Annexures 8 series, dated 12.12.1998 there was no stipulation even with regard to recovery of salary on their appointment being found illegal. Thus, part of the impugned order seeking to recovery salary already paid to the petitioners must be held to be bad as was laid down by the Full Bench of this Court in the case of Bijoy Kumar Bharti & ors. vs. the State of Bihar & ors., reported in 1983 PLJR 667. In other words, the petitioners will not be liable to refund any salary already paid to them but at the same time they will not be entitled for payment of any amount of salary beyond what has already been paid to them. With the aforementioned observations and directions, this application is dismissed and the interim order dated 20.7.2000 is also vacated. There would be, however, no order as to costs. Let a copy of this order be sent immediately to the Regional Deputy Director of Education, Muzaffarpur for its strict 13 compliance. M.J.C.No. 1216 of 2008 This contempt application arises out of an interim order passed by this Court dated 20.7.2000. The petitioners have alleged that the aforesaid interim order was not complied by the opposite parties. It, however, transpires from reading of the contempt application and the connected notice given by the counsel for the petitioners on 19.3.2007 addressed to the Director, Secondary Education, that the copy of the order was never produced before the R.D.D.E., Muzaffarpur for a period of nine years and in fact when the order in question was produced the R.D.D.E., Muzaffarpur on 16.8.2008 had accepted joining of the petitioners subject to final result of this writ application. Consequently by an order dated 9.4.2010 this Court had directed for payment of current salary to the petitioners from the date of their acceptance of their joining. Now when this writ application has itself been dismissed and the interim order has been vacated, there would be no question of continuing with this contempt application. The petitioners cannot claim payment of salary on the basis of this contempt application, especially when they themselves did not report on duty for more than eight years. Thus, whatever payment of salary has been made to the petitioners after their joining should satisfy them, especially when this Court has also restrained the respondents from making any recovery of salary paid to them prior to the period of their termination. 14 With the aforementioned observations this contempt application is also disposed of. (Mihir Kumar Jha,J.) Surendra/