IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.272 OF 2008 (C.W.J.C. No. 14075/2003) 1. THE STATE OF BIHAR 2. The Secretary, Wate Resources (Irrigation) Department, Government of Bihar, Sinchai Bhawan, Patna. 3. The Director, Land Acquisition and Rehabilitation Water Resources, Department, Government of Bihar, Sinchai Bhawan, Patna. 4. The Rehabilitation Officer, Koshi Yozana, Supaul. - Appellant/s(s) Versus 1. RAM BUJHAN YADAV, Son of Bhagwat Yadav, resident of village- Nawala, P.S. Nawahatta, District- Saharsa. 2. Raghunandan Yadav, Son of late Dubar Yadav, resident of Village- Nawala, P.S.-Nawahatta, District- Saharsa. 3. Bhupendra Narayan Yadav, Son of Laxmi Prasad Yadav, resident of Village – Mohammadpur, Police Station- Nawahatta, District- Saharsa. 4. Ishwar Deo Yadav, Son of Jiwach Yadav, resident of Village- Darhar, P.S.- Nawahatta, District- Saharsa. 5. Mukesh Chandra Yadav, Son of Phuleshwar Yadav, resident of Village- Darhar, P.S. Nawahatta, District- Saharsa. - Respondent/s(s) ------------------------ Appearance : For the Appellant/s :- Mrs. Neelu Agrawal, A.C. 6. For the Respondent/s: Mr. Binod Kumar Kanth, Advocate. Mr. Pramod Mishra, Advocate. Mr. Prafull Chandra Thakur, Advocate. CORAM: THE HONOURABLE JUSTICE SMT. T. MEENA KUMARI AND THE HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH -------------- ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH) -------------- Heard Smt. Neelu Agrawal learned Government Advocate No. 6 for the appellant State of Bihar and Shri Binod Kumar Kanth learned Senior 2 advocate appearing for the respondent writ petitioners. 2. This intra Court appeal under clause 10 of the Letters Patent of the Patna High Court has been filed by the appellant State of Bihar being aggrieved by the order dated 14.12.2007 passed in C.W.J.C. No. 14075 of 2003 (Ram Bujhan Yadav & Ors. Vs. The State of Bihar & Ors.). The writ petition had been filed against the order terminating the services of the petitioners who had been appointed in the year 1989 being the displaced persons of the river Koshi. The said appointments were made under a policy of the State Government to engage such persons in Government service by way of relief to them. This position appears to have continued for quite a long time and finally in the year 2003 the appellant State of Bihar took a stand that such appointments which according to them run into hundreds were illegal for various reasons including the fact that they were made in excess of the percentage of posts reserved for such appointment. 3. The learned Single judge after hearing decided to allow the writ petition and quashed the order of termination holding that the petitioners were displaced persons and they were entitled to such employment under the scheme and therefore to hold their appointments illegal was unjustified. After quashing the order of termination it was further ordered that they shall be 3 reinstated with full back wages within three months from the date of production of a copy of the order. 4. The abovementioned order is under challenge in the present Letters Patent Appeal. Learned counsel for the State has drawn our attention to the fact that such appointments come under the category of illegal appointments and thus they being ab-initio void, the mere fact that they continued in service for a long period will not give rise to equity in their favour. She has relied on various decisions of this Court as well as the Hon’ble Supreme Court which we shall deal with later on. The other contention raised by learned counsel is that when such irregularities were detected later on vigilance enquiry was held by the State of Bihar which resulted in the lodging of the F.I.R. against many officers of the State. She points out that once this matter came to the knowledge of the authorities they by way of corrective measure terminated the writ petitioners from service since according to her they were unsustainable in the eyes of law. Further the same has also been done after taking legal opinion from the learned Advocate General. In support of her contention she has relied upon by the Judgment of Division Bench of this Court passed in the case of The State of Bihar & Ors. Vs. Prashant Kumar Sharma & Ors. reported in 2003 (2) PLJR 27. After 4 going through the same, we feel that in the said case the facts are quite different in as much as those appointments were not made by the competent authority and later on it was purported to be regularized on the basis of having obtained oral order from the competent officer. This not being the position in the present case, according to us the ratio of the said judgment has no application in this case. 5. Learned counsel then referred to another judgment of the Division Bench in the case of The State of Bihar & Ors. Vs. Sheo Shankar & Anr. reported in 2008 (3) PLJR 363 . In the said case the reason for termination was that they were made on the basis of illegal orders being the product of ulterior motive and this being the fact it rendered the very appointment illegal which was based on a very sound principle of law that no benefit can accrue to a person who has got the same due to some other consideration and for ulterior motives. There is no such allegation in the present case. Further the F.I.R. itself which has been lodged by the respondents is against their own officers and not the writ petitioners. This clearly shows that no motive or illegality or any mala fide is alleged even by the State itself against these writ petitioners. In that view of the matter even the Judgment referred above does not help the case of the appellants. 6. Coming to the merits of this case, the basic 5 facts which are relevant are noted hereinbelow. 7. Firstly, the respondents (writ petitioners) were appointed in the year 1989 and termination order came to be issued in the year 2003. Secondly, as per the common case of the parties it is not in dispute that the persons were the displaced persons of river Koshi and there was a scheme existing for the appointment of such persons. Secondly, it is also not in dispute that posts were available against which appointments were made and that the basic qualification was fulfilled by the persons in as much as they were displaced persons. The law as settled in the case of Secretary, State of Karnatka & Ors. Vs. Uma Devi (3) reported in (2006) 4 SCC 1 has been further clarified with regard to the distinction between illegal and irregular appointments in the case of State of Karnataka and Ors. Vs. M. L. Kesari & Ors. reported in (2010) 9 S.C.C. 247. As per the law settled, especially in view of the consistent pronouncements of the Hon’ble Apex Court in the background of the fact that those persons who were appointed were eligible for such appointment and the post also existed, at best such appointments can be categorized, for the sake of argument, to be irregular but definitely not illegal. This position even the Hon’ble Supreme Court in the case of Secretary, State of Karnatka & Ors. Vs. Uma Devi & 6 Ors. reported in (2006) 4 SCC 1 (Supra) has itself taken care of by holding that such irregular appointments can be regularized since they do not come under the category of illegal appointment which cannot be condoned. 8. In that view of the matter and taking into consideration the factual matrix of this case as well as the law settled, we are in agreement with the order passed by the learned Single Judge which is under appeal and do not find any infirmity in the same. 9. Accordingly, the appeal is dismissed, but without any order as to cost. Patna High Court Dated, 12th July, 2011 Anand Kr./ NAFR (T. Meena Kumari, J.) ( Ahsanuddin Amanullah, J.)