CIVIL WRIT JURISDICTION CASE No.7766 OF 2003 (In the matter of an application under Article 226 of the Constitution of India) ****** AMRENDRA PRASAD YADAV son of Deo Narayan Yadav, Resident of Village+ P.O. Mohanpur Choumukh, P.S. Bihariganj, District- Madhepura, at present posted as Senior Accounts Clerk at Special Land Acquisition Office, Koshi Project at Saharsa ----------Petitioner Versus 1. The State of Bihar through Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna 2. The Deputy Secretary, Water Resources Department, Sinchai Bhawan ,Government of Bihar, Patna 3. The Under Secretary, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna 4. The Director, Land Acquisition and Rehabilitation Department, Water Resources Department, Govt. of Bihar, Sinchai Bhawan, Patna 5. The Special Land Acquisition Officer, Koshi Project, Saharsa ----------Respondents ****** For the Petitioner : Mr. U. N. Singh, Sr. Adv. Mr. Akhilesh Kumar, Adv. For the State : Md. Fazal Rahman, G.P.-6 Md. Obaidullah, Asst. Counsel to G.P.-6 ****** P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA Navin Sinha, J. This writ application is yet another in the series of litigations before this Court with regard to appointment and termination of a class IV employee after twenty three long years of service. The appointment was made by officers holding high ranks, 2 vested with powers of appointment. The appointment is now questioned on grounds of illegal exercise of powers by such superior officers. The petitioner was appointed by the Rehabilitation Officer in the Land Acquisition Department (under the Department of Water Resources) at Supaul as a peon on ad hoc basis for three months on 9.12.1980, simultaneously seeking approval of the Director, Land Acquisition for such appointment. On 20.10.1981, the Director extended the appointment from 9.3.1981 to 31.12.1981. On 25.9.1982 petitioner‟s service book was opened. On 16.1.1992 the Director, Land Acquisition extended the appointment till 31.3.1982. On 5.2.1982, the Rehabilitation Officer wrote to the Director, Land Acquisition that the petitioner was qualified to hold the post of Junior Accounts Clerk and sought approval for such temporary appointment from 1.2.1982 to 3.5.1982. The Director approved this appointment for the same period on 6.8.1982. This was followed by further extensions on 19.5.1982 to 11.10.1982 and ultimately it was extended till further orders by the Director on 19.4.1993. On 20.12.1988, the District Establishment Committee promoted the petitioner to Senior Accounts Clerk. On 17.1.2003, the petitioner was issued a 3 show cause notice questioning the legality of his very initial appointment on 9.12.1980 as a peon and subsequently as a Junior Accounts Clerk. He replied. A second show cause notice followed on 12.7.2003, duly replied on 30.7.2003. The order of termination followed on 24.9.2003. This Court on 5.1.2004, stayed operation of the order dated 24.9.2003. Counter affidavit has been filed on behalf of the respondents. Learned counsel for the petitioner contended that the counter affidavit explicitly states that large appointments were made after 1985 which were under scrutiny as illegal/irregular appointment. Relying upon a Government notification dated 11.6.1986, it is submitted that the Government had resolved to take action for termination of such illegal/irregular appointment made after 1.8.1985 with simultaneous action against those officers who made the appointment. The petitioner being an appointee of 1980 was clearly beyond the purview of such scrutiny and termination, even as per the case of the respondents. It was next urged that by an order dated 18.2.1978, the powers of the Director, Land Acquisition were given to the Special Land Acquisition Officer for making ad hoc 4 appointment as recited in office order No. 625 dated 21.3.2001 of the Water Resources Department. This power was withdrawn on 2.12.1983, as stated in Paragraph-5 of the aforesaid order. The appointment of the petitioner on 9.12.1980 was therefore made during the validity of the power to appoint. Relying upon a judgment of this Court in C.W.J.C. Nos. 5692 of 1998 and 5964 of 1998 (Birendra Prasad Singh/Pawan Kumar Lal Karn & Ors. Vs. State of Bihar & Ors) from Paragraph-5 of the same, it was submitted that this Court with reference to the powers of the Special Land Acquisition Officer and the Rehabilitation Officer held as follows:- “ This clearly shows that the cadre of ministerial employees including the Class-IV employees of Special Land Acquisition Officer and Rehabilitation Officer was common, the appointing authority being Special Land Acquisition Officer-cum-Rehabilitation Officer” Learned counsel for the petitioner further relied on a Division Bench order of this Court in L.P.A. No. 270 of 2000 upholding a similar appointment by the Rehabilitation Officer on temporary basis subject to approval of the Director, Land Acquisition which in like manner was extended by the Director from time to time when the Division Bench held that there was “tacit approval” to the appointment by the Director. Further 5 reliance was placed on a Bench decision of this Court in C.W.J.C. No. 6586 of 1998 with regard to a similar appointment provisional in nature accepted by the Director till further orders when this Court held that once the Director had approved the appointment made by the Rehabilitation Officer and salary released thereafter, there was approval to the appointment “at least in limited sense” and therefore interference after long delay was against equity. It was lastly urged that the petitioner was sought to be terminated nearly 23 years later and by virtue of the interim order of this Court has continued in service till today and is scheduled for superannuation in the year 2013. Reliance was placed on the judgments of this Court in 2009(4) PLJR 648 (Vijay Narayan Singh & Ors. Vs. The State of Bihar & Ors), 2009(2) PLJR 869 (DB) (The State of Bihar through the Secretary, Govt. of Bihar in the Department of Energy, Sinchai Bhawan, Bailey Road, Patna & Ors Vs. Indra Mohan Rai) and 2008(1) PLJR 841 (DB) (Ram Krishna Dubey Vs. The State of Bihar & Ors). The last submission made was that in any event of the matter, even if the entry of the petitioner into service was irregular he was entitled to appropriate consideration for regularization as Senior Accounts 6 Clerk in view of the observations contained in Paragraph-44 of the judgment in the case of Secretary, State of Karnataka Vs. Uma Devi (3) reported in 2006(2) PLJR 363. Summing up the arguments, learned counsel contended that the petitioner was appointed as peon by the Rehabilitation Officer competent to do so. The approval of the Director if required had also been granted. The appointment of the petitioner on the post of Junior Accounts Clerk for which he held the qualification was made by the Director competent to do so when promotion to Senior Accounts Clerk had been granted by the establishment committee. Counsel for the State contended that the appointment of the petitioner as a peon itself was contrary to law. The appointment to the post of Junior Accounts Clerk was likewise contrary to law. No procedures for appointment by advertisement and selection was followed. Those who made the appointments are being subjected to criminal prosecution and for which vigilance department had lodged an F.I.R. No. 4 of 1997, relying upon Annexure-A to the counter affidavit, a copy of the First Information Report. A show cause notice was given to the petitioner with opportunity to meet the accusation against him and only thereafter the appointment has been 7 terminated. The petitioner was well aware of the precarious nature of his appointment either as irregular or illegal and therefore seeks the relief of regularization. Learned counsel relied upon certain orders of this Court where it declined to interfere with the orders of termination of illegal appointments. An undisputed almost admitted fact not denied in this counter affidavit emerges at the threshold from the order of this Court in C.W.J.C. Nos. 5692 of 1998/5964 of 1998, that the appointing authority in the cadre of ministerial employees including Class-IV post was the Special Land Acquisition Officer-cum- Rehabilitation Officer. This read in conjunction with office order no. 625 dated 21.3.2001 makes it explicit that the power to make ad hoc appointment was vested in the Special Land Acquisition Officer/Rehabilitation Officer in between 18.2.1978 and 2.12.1983 when it was revoked. The petitioner was an appointee of 9.12.1980. His appointment for three months was in the background of the refusal or failure of the State authority to make regular appointment on vacant sanctioned post of peon affecting government work leaving the officer at the local level with no option but to make such ad hoc appointment in the interest of work as mentioned in the appointment order communicated 8 to the Director, while seeking his approval. The issue whether the Rehabilitation Officer was competent to make the appointment or not looses much of its relevance in view of the approval granted to the appointment of the petitioner by the Director when similar approvals have met the acceptance of a Division Bench of this Court in L.P.A. No. 270 of 2000. This Court has no hesitation in holding that the appointment of the petitioner was against a sanctioned vacancy by an authority competent to do so. In this manner, he continued for long years as a peon when he came to be appointed as a Junior Accounts Clerk by the Director, competent to do so on a vacant post on 5.2.1982. On this occasion also the Rehabilitation Officer emphasizes the available vacancy not being filled up affecting Government work, while seeking the approval of the Director. The specific assertion of the petitioner in his pleadings that he held the qualification for appointment as a Junior Accounts Clerk has not been denied in the counter affidavit. Unfortunately, it appears that for long years this was the method resorted to by the Government functionaries for making appointments in Government posts. This Court would not like to dwell upon the reasoning for the same except to notice it as a fact. 9 That his service book has been opened shall not lead to a conclusion of regularization ipso facto. This Court, therefore, finds that in the nature of his appointment and continuance, the petitioner can be held to be a person eligible to be considered for regularization in terms of Paragraph-44 of the case of Uma Devi (supra) relied upon by the petitioner. There does also exist a quota meant for appointment by promotion of Class-IV employees to Class-III. The appointment as a Junior Accounts Clerk was therefore clearly not outright illegal. There is another feature of the case which comes to the aid of the petitioner. The respondents in their counter affidavit have themselves relied upon the vigilance case instituted in 1997 enclosed as Annexure- A. This Court has gone through the First Information Report. Two factors are noticeable, (a) the subject matter of the First Information Report are appointments made in between 1985 to 1995 in the Land Acquisition Office of the Water Resources Department (b) the list enclosed to the First Information Report of officers who made the appointments and their location does not make any reference to appointments by the Special Land Acquisition Officer in the District of Supaul where the petitioner was appointed. Therefore, from the stand 10 of the respondents themselves appointments prior to 1985 were not the subject matter of vigilance enquiry much less with regard to Supaul. The respondents in their counter affidavit have therefore themselves disclosed their case that they do not consider the present a fit case for taking action against the officers who appointed or approved the appointment of the petitioner. The bald assertion in Paragraph-5 of the counter affidavit that 44 officers have been sought to be proceeded against in the vigilance case, is obviously a camouflage for those who appointed the petitioner as they are clearly persons falling outside the category as appointments prior to 1985 taking them out of the purview of the F.I.R. The counter affidavit avoids to disclose the name of the Rehabilitation Officer and Director, Land Acquisition who appointed the petitioner. All these prima facie satisfy the Court that they are outside the purview of the investigation under the First Information Report. Much less, is there any reference to any illegal appointment at Supaul being the subject matter of such investigation. The counter affidavit nowhere explains as to why for such long years from 1980 till 2003, when his service book had also been opened, he was granted appointment/promotion by an establishment committee 11 why the irregularity/illegality in his appointment was not noticed and/or questioned by the authorities. Twenty three years of service by any standard is more than a reasonable period of time to preclude the respondents of their authority to question the allegedly illegal appointment. In the case of Indra Mohan Rai relied upon by the petitioner a Division Bench of this Court has held at Paragraph 9 that the delinquent had continued by extensions for almost 17 years of service and his appointment was sought to be questioned after his regularization when he had been given increments and benefits of pay revision etc. A distinction could be made that the petitioner has not been regularized. Nonetheless, the fact remains that this Court did take into consideration the long continuance in service for 17 years to interfere with the order of termination. That this case presents certain features individual to it on facts is an aspect which has necessarily to be kept in mind by the Court at the stage that final appropriate orders are to be passed. The petitioner has continued in service by an interim order dated 5.1.2004 and is scheduled for superannuation in the year 2013. At this stage, to hold on the irregularity/ illegality of his appointment and 12 dismiss the writ petition on that action shall not be doing justice to the petitioner unless and until the same standard is applied to the officers of respondent authority also. On the facts of the case, this Court finds it difficult to hold that the petitioner can be classified outright as an illegal appointee. He may at best fall in the category of a person irregularly appointed continuing in a temporary capacity since long years. He, therefore, clearly falls in the category of persons discussed in Paragraph-44 of the judgment of Uma Devi (supra) to be considered for regularization. This Court does not uphold the order of termination dated 24.9.2003 as an illegal appointee. It is accordingly set aside. The respondents are directed to consider his case for regularization in accordance with law and the discussions contained presently. In the case of Vijay Narayan Singh (supra) relying upon judgments of the Apex Court this Court held at Paragraphs 10,11 and 12 as follows:- “10. In an illegal appointment there are always two players. One is appointed, the other appoints. One gives consideration the other receives consideration. Both are equally answerable. The law will not countenance selective action against those who secured illegal appointment by giving leverage to the State to protect officers who made illegal appointments. In A.I.R. 2005 SC 1 (Friends 13 Colony Development Committee vs. State of Orissa & Ors.) dealing with the foul acts of such official in context of rampant illegal construction the Supreme Court at para 20 in the relevant extract has observed as follows:- 20. ………. Though the local authority has the staffs consisting of Engineers and Inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they do not act or do not act promptly or do connive at such activities apparently for illegitimate considerations…………… At the same time in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance. “11. The Supreme Court while dealing with regard to such illegal acts of the officials who made hay in the sun shine must see cloudy days, in AIR 1996 SC 715 (Delhi Development Authority vs. Skipper Construction & Anr.) at paragraph 6(1) has directed disciplinary proceeding against those in service and appropriate proceeding with regard to those who had retired in context of their pension and other terminal benefits in accordance with Rules. It was observed in sub-para (7) as follows:- „(7) it is directed that no court or authority shall be competent to interdict or otherwise interfere with the disciplinary or other proceedings that may be taken against the aforesaid authorities pursuant to this Order. Any further directions necessary in that behalf can be sought for from this Court. The disciplinary proceedings shall be commenced within three months from this date 14 and shall be concluded within one year.‟ “12. This Court therefore directs that if the respondents propose to visit the petitioners afresh in accordance with law of the consequences of the order of termination dated 7.3.2009/9.3.2009 they cannot act selectively in the matter. They are obliged to take into the ambit of enquiry those who appointed the petitioners and take appropriate action against them both under civil and criminal law whether they be in service or superannuation and only in that event can they proceed against the petitioners also.” This Court, therefore, directs that if the respondents propose to deny regularization to the petitioner, they shall be required to pass a reasoned and speaking order. The standards by which the officials of the respondents State purport to act are the standards by which the Court shall bind them and test their actions. Simultaneously, to any such order denying regularization to the petitioner, this Court directs the respondents to initiate civil/criminal proceedings including suspension forthwith of the officer/officers who not only appointed the petitioner whether as a peon/Junior Accounts Clerk/Senior Accounts Clerk but even those successor officer who continued to utilize the service of the petitioner and paid him salary at least till 5.1.2004. A peculiar feature appearing in such maters 15 before this Court is that the State officials keep silent and do not disclose what action has been taken against its officers who made such illegal/irregular appointments. Action appears to have been taken selectively. Even in the present case, the counter affidavit filed in the year 2003 is silent about what development took place in the F.I.R. lodged in 1997 and how many officers had to face the wrath of the law. This Court hopes and excepts that the State authorities shall fulfil their constitutional obligations not only with regard to those who obtained the illegal appointment but even with regard to those who made the illegal appointment. This Court is further constrained to take notice of the fact that the present nature of cases are primarily limited to appointment on Class-III and Class-IV posts. Therefore, it has been noticed in the case of Vijay Narayan Singh (supra) that in an environment of limited employment opportunity in the State of Bihar where the Government was the principal employer, it was the officers of the State who misused their powers to turn their office into a private fiefdom for doling out Government employment like that given to a private domestic servant. The man securing appointment on Class-III or Class-IV post, his social status being obvious was already in dire straits for a job. The person making 16 the appointment equally if not was more guilty for exploiting this desperate position of the person seeking employment. The writ application stands allowed. Patna High Court Dated the 30th March 2010 P. Kumar/ NAFR (Navin Sinha, J.)