IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.390 of 2008 1. THE STATE OF BIHAR 2. The Director General and Inspector General of Police, Old Secretariat, Patna. 3. The Deputy Inspector General of Police, Purnia Range,Purnea. 4. The Superintendent of Police, Katihar.... Appellants Versus MD.ALI., Son of Md. Ali Asagar, resident of Village and P.O. Mubarakpur, P.S. Salkhua, Distt. Saharsa..... Respondent 6 16-4-2009 Heard learned counsel for the appellants and learned counsel for the respondent in respect of limitation matter as well as on merits of this appeal. The delay in preferring this letters patent appeal is of about ten months . The explanation for the delay reveals that even after recruitment of the writ petitioner having been found by the authorities to be de hors the rules of recruitment and therefore contrary to Articles 14 and 16 of the Constitution of India, at the level of office of Superintendent of Police, Katihar as well as Deputy Inspector General of Police ( Personnel), Bihar, several months were spent in obtaining opinion as to whether appeal should be preferred or not. Considering the issues involved and the explanation, the delay in preferring this L.P.A. is condoned. We have gone through the judgment of the writ court carefully and also perused the materials annexed with the writ petition. The writ court has noticed that petitioner was appointed as a constable in the Bihar Police in the year 1997 and he was not recruited in accordance with the procedure laid down in Rule 663 (b) of the Bihar Police Manual but de- hors the Rule by way of reward for some act of bravery shown by him as citizen. The writ court has - 2 - admittedly condoned the violation of provisions of recruitment contained in the Bihar Police Manual on the plea advanced that it is not statutory in nature and therefore the instructions contained therein could be departed after due deliberation and .for good reasons. The matter involves recruitment to police service under the State and as held by a Division Bench of this Court in the case of Hemkant Jha Vrs. State of Bihar reported in 2007 (3) PLJR 657, the authorities of the State of Bihar are bound to make recruitments as per laid down procedure in view of requirements of Articles 14 and 16 of the Constitution of India. In matters of public employment there cannot be any relaxation or disregard of Rules of recruitment in favour of a particular individual unless by conscious decision the State relaxes the existing rules or makes amendment in the policy of recruitment so as to be applicable to all concerned. If the rules of recruitment are not statutory in nature, it does not take away their force because it is well established that executive power of the State covers its legislative power also and policy decision can be taken by the executive to the extent they do not violate any statutory provision. In the case of Hemkant Jha (supra) the issues were identical, dealing with several illegal appointments of constables particularly during the tenure of Ex- Director General of Police Mr. S.K.Saxena. In that judgment the Division Bench to which of one of us ( Shiva Kirti Singh,J) was a party, considered earlier judgments of this Court as well as of the Supreme Court touching upon requirements of Articles 14 and 16 of the Constitution of India in the matter of public - 3 - appointment as well as requirements of following rules of natural justice in such matters. In that context this Court also considered the judgment of the Apex Court in the case of Basudeo Tiwary Vrs. Sido Kanu University and others reported in A.I.R. 1998 SC 3261. In paragraph-13 of that judgment it was concluded that in a case of present nature where it has been found that the back door procedure adopted was common to large number of employees and the concerned authority has considered foundational facts and they have been established unquestionably not only in the proceeding but also before the court in a writ proceeding, it would be unfair and unjust to segregate the cases of some of the employees on the ground of alleged lack of notice and to direct for reconsideration of only their cases by the authorities when their appointments were admittedly made in similar fashion. It was held that such exercise would be futile and would involve only a wastage of public time and saddle the concerned employees with further harassment and expenses. The aforesaid discussion takes care of submission of Mr. Mishra on behalf of respondent that Rules of natural justice have not been followed in the case of the petitioner. Reliance has been placed by him upon judgment in the case of Basudeo Tiwary (supra ) as well as another judgment of the Apex Court in the case of Guljar Singh Vrs. Sub divisional Magistrate reported in (1999) 3 SCC 107. We find that the case of the writ petitioner, respondent herein is squarely covered by the Division Bench judgment of this Court in the case of Hemkant Jha. Recently a similar writ petition was - 4 - dismissed by a learned single judge on 19th November, 2008. While dismissing the writ petition bearing C.W.J.C.No. 1763/02, the learned single judge decided not to follow the decision of Division Bench dated 2nd July, 2008 whereby L.P.A. 221/2008 ( State of Bihar and others Vrs. Kamalchandra Saha) was dismissed in limine and thereby upholding the order of the learned single judge who had interfered with the termination of a constable appointed in similar manner. The learned single judge took the view that while dismissing L.P.A. 221 of 2008, the Division Bench had not noticed the earlier Division Bench judgment in the case of Hemkant and therefore that could not be treated as a binding precedent. The judgment of the learned single judge dated 19th November, 2008 was challenged by a similarly dismissed constable through L.P.A. No. 35 of 2009. The said L.P.A. was dismissed by a Division Bench of this Court recently on 28-1- 2009 in the light of detailed judgment of the Division Bench in the case of Hemkant Jha (supra). Later judgment in L.P.A. 35/2009 is reported in 2009(2) PLJR 211 ( Akhilesh Kumar Vrs. State of Bihar). With due respect to the judgment of the writ court, we have come through Annexures 3 and 5 to the writ petition and we find that those annexures contain letters issued from Chief Minister’s Secretariat and office of Director General of Police, Bihar in the year 1996 and 1997 respectively. Those documents seem to have helped in expediting the process of recruitment contrary to the laid down procedure but they do not show in any manner that the State Government had taken any decision at the highest level to relax the - 5 - Naresh rules of recruitment or to amend the same in any manner. The power to relax the rules or amend the same when the rules deal with public employment, must be exercised consciously and in consonance with Articles 14 and 16 of the Constitution of India. Hence, we find no good ground to interfere with the order dismissing the petitioner from service on the ground that rules of appointment were admittedly not followed while recruiting him as a constable in police force. In view of aforesaid discussions and findings this appeal is allowed, the judgment and order under appeal dated 2-7-2007 passed in C.W.J.C. No. 10471 of 2006 is set aside. As a consequence the writ petition shall stand dismissed. There shall be no order as to cost. ( Shiva Kirti Singh,J) ( Abhijit Sinha, J)