IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.474 of 2005 MANJU KUMARI Versus THE STATE OF BIHAR & ORS ----------- 3 12.09.2008 Heard learned counsel for the petitioner and the State. The petitioner was appointed on the post of Cook in the Darbhanga Division on 27.05.1993. A show cause notice was issued to her for termination on 24.08.1996, inter alia, that her appointment by calling names from the employment exchange was illegal. After she replied to the show cause notice an order of termination dated 25.10.1996 was passed. The petitioner questioned the same in C.W.J.C. 2024 of 1997 disposed of on 1.4.1997. This Court directed in the following terms “(a) the petitioner shall also produce relevant materials before the authority to satisfy that her appointment was made on the basis of recommendation of the Employment Exchange and all required facilities observed”. It appears that simultaneously the petitioner came in another writ application, C.W.J.C. No. 6886 of 1997 disposed of on 25.01.1999. Both the writ applications challenged the same order dated 25.10.1996. It is incomprehensible why she came twice challenging the same order within one year. Be that as it may, in the latter case an objection was also raised on behalf of the State of the incompetence of the authority making the appointment. This was expressly negatived by this Court. That left the issue of appointment by calling of names from the Employment Exchange only, when this - 2 - Court in the latter order noticed the government objection that as per the letter no. 8167 dated 21.06.1966, if more than five vacancies be there the appointment must be by an open advertisement. This Court while disposing of the matter emphasized the fact that the appointments should have been made against specific vacancies. Then followed the impugned order dated 3.3.2000 upholding the termination. Learned counsel for the State has relied upon an order of this Court in C.W.J.C. No.12202 of 2000 dated 30.04.2004 to urge that a similar writ application disposed arising out of the order dated 25.01.1999 has been dismissed. On perusal of the order in C.W.J.C No. 12202 of 2000, it is noticed that the availability of five sanctioned posts is not in dispute. The Court while declining to grant relief, discussed the aspects of the earlier case that the appointments were made by the competent authority as also the law that though appointments through the Employment Exchange may not be the most desirable method of appointment, it was certainly not an illegal mode of appointment. Learned counsel for the petitioner has relied upon another order of this Court in C.W.J.C. No. 7884 of 1999 preferred by another person terminated by the very same order dated 25.1.1999 and the competency of the appointing authority was again reiterated and the writ application was allowed. What this Court finds from the impugned order dated 3.3.2000, is that the admitted facts are (a) there were five sanctioned - 3 - vacancies. (b) the name of the petitioner was sponsored by the employment exchange (c) that her appointment was made by the Competent Authority is not in controversy at all. In so far as other requirements of roster clearance etc are concerned, it was within the domain of the respondents with which the petitioner had no concern and was not in a position to do anything. Once it is an admitted fact that her name was sponsored by the Employment Exchange against sanctioned vacancies, the appointment cannot be stated to be illegal. If there was a circular which required an advertisement, it was certainly required to be followed but was not a statutory binding so as to make the consequent action illegal as distinct from irregular. In 1998 (2) SCC 332 (Arun Tiwary and Others Vs. Zila Mansavi Shikshak Shang and Others) the Apex Court at paragraph 20 while dealing with the issue of appointments by calling of names from the Employment Exchange instead of advertisement observed that names can be called from Employment Exchange for speedier process of selection and appointment. Relying upon a decision in 1986(3) SCC 308 (Union of India Vs. N. Hargopal) it was held that such a method of appointment does not offend Articles 14 and 16 of the Constitution of India. That an advertisement may be the best method of appointment, but its absence shall not vitiate such appointments made by calling of names from the Employment Exchange, also an accepted mode of appointment. In the facts and circumstances of the case, the manner in - 4 - which appointments sought to have been terminated en masse, on grounds, which have been noticed above not to be termed grossly illegal employment what emerges is an industry of appointments and terminations. Each successive officer wishing to make own appointments for obvious reasons. If the petitioner has to go for reason of any irregularity in her appointment those who made the appointment must also feel the heat. Surprisingly the respondents are completely silent on this aspect perhaps, deliberately so. The writ application is allowed and the impugned order dated 3.3.2000 is quashed. Kundan (Navin Sinha, J.)