IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.3335 of 2009 ==================================================== RAM RAJ SAO - Petitioner/s(s) . Versus THE STATE OF BIHAR & ORS- Respondent/s(s) . ==================================================== Appearance : For the Petitioner/s: Mr. AMIT KR.ANAND Mr. KUMOD KR.SHRIVASTAW Mr. VINOD KUMAR Mr. B.N.P.GUPTA For the Respondent/s: Mr. (SC21) ==================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA DATE: 12-07-2011 ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 03. 12.07.2011 Heard learned counsel for the petitioner and for the State. The petitioner who was appointed as a Peon is aggrieved by the order dated 25.7.2008 passed by the three men committee declining to regularize his service holding that the appointment was made without following the reservation roster, the post had not been advertised which was evidence that he was appointed on an unsanctioned and non-vacant post. Procedures for his appointment were not followed inasmuch as it was not done by the committee to be chaired by the District Magistrate and therefore he did not fall within the category of cases discussed in Secretary, State of Karnataka Versus Uma Devi (2006) 2 4 SCC 1 to be considered for regularization as a one time measure. The petitioner’s appointment letter dated 29.12.1989 in no uncertain terms states that he was being appointed on a vacant post of Peon. A show cause notice was given to him to which he replied reiterating that he was appointed on the vacant sanctioned post of Peon. On 26.5.2000 an order was passed terminating his service, holding that the explanation given was not satisfactory. The petitioner questioned the same in C.W.J.C. No. 7591 of 2000. The Court observed that the petitioner came to be appointed by the District Education Officer, West Champaran at Bettiah pursuant to the direction of the Deputy Director of Education dated 10.11.1999. It was further held that the petitioner had continued in service for more than 10 years. There were no allegations of fraud or misrepresentation against him in seeking appointment. The respondents questioned that order in L.P.A. No. 85 of 2002, disposed off on 11.01.2007 along with several analogous Appeals referring the matter to the three men committee. The impugned order only states that the appointment on a Class-IV post was to be made by a 3 committee to be headed by the District Magistrate consisting of others including three persons from the department concerned. The order does not state that in accordance with the service regulation who was the appointing authority in the education department where the petitioner was appointed as a Peon. Merely because the appointment may not have been considered by a committee chaired by the District Magistrate, in absence of any finding by the three men committee that the Deputy Director was not competent to appoint, this Court finds it difficult to hold that the petitioner was an illegal appointee. The order suffers from complete non application of mind, holding that he was not appointed on a sanctioned vacant post. True it is that the present impugned order was passed on 27.5.2008 but the judgment in the case of Uma Devi (supra) has fallen for consideration more than once by the Supreme Court and has lastly been explained with regard to persons like the petitioner in A.I.R. 2010 (9) SCC 247 (State of Karnataka & Ors Versus M.L. Kesari & Others at paragraph 7 as follows:- “7. It is evident from the above that there is an exception to the general principles against “regularization” enunciated in Umadevi (3) 1, if the following conditions are fulfilled: 4 (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The Appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” Since in the M.L. Kesari (supra) judgment is only an expansion of Umadevi (supra) there has to be a continuity in the law. The Court finds it difficult to unsuit the petitioner only on the ground that M.L. Kesari (supra) subsequent to the final order passed with regard to the petitioner. Before parting with the case, the Court is compelled to observe that it is not a mere co-incidence that substantially such matters of illegal appointment appear primarily relating to Class-IV employees. If they were willing to make compromises for the security of an employment there were somebody better 5 off than him more than eagerly waiting to exploit him. If the petitioner has to suffer those who derived advantage from his position must also suffer. The impugned order dated 27.5.2008 is accordingly set aside. The matter is remanded to the Secretary, Human Resources Development Department to consider the claim of the petitioner for regularization in terms of the judgment of the Supreme Court in M.L. Kesari (supra) and the observation made earlier in C.W.J.C. No. 7591 of 2000 within a maximum period of three months from the date of receipt/production of a copy of this order. The application stands allowed. P.K. ( Navin Sinha, J.)