IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2199 of 2009 ANIL KUMAR SINGH, SON OF SRI DHANPATI SINGH, RESIDENT OF VILLAGE-MUKUND DERA, P.O. ATHAR, DISTRICT-BUXAR-------PETITIONER . Versus 1.THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 4.THE DISTRICT EDUCATION OFFICER, BUXAR, P.O. AND DISTRICT BUXAR. 5. THE HEAD MISTRESS, PROJECT GIRLS HIGH SCHOOL, ITARHI, DISTRICT-BUXAR--------- RESPONDENTS. ----------- For the Petitioner:- Mr. Bipin Bihari Singh, Advocate For State:- Mr. Manu Shankar Mishra (G.P.X) 4 11.05.2010 This application is for quashing the order contained in memo no. 42 Patna dated 6.2.2009, issued under the authority of Principal Secretary, Human Resources Development Department, Government of Bihar, dismissing the appeal preferred by the petitioner and affirming the order passed by Director Secondary Education contained in memo no. 03(P) dated 1.1.2008, refusing the claim of the petitioner for quashing the order of dismissal passed against the petitioner, in complete violation of rule of natural justice. 2 Further prayer of the petitioner is for directing the respondent to reinstate him with back wages and all other consequential benefits. Petitioner was working in the Inter College, Buxar since 1991 as a daily wager. He represented before the District Magistrate, Buxar on 2.7.1993 for his appointment on a regular basis against existing vacancy in any of three Project Girls High Schools. The District Magistrate, Buxar vide order dated 2.7. 1993 directed the District Education Officer, Buxar to appoint the petitioner against the sanctioned vacant post in Project High School, Itarhi. The District Education Officer vide letter No. 1913 dated 31.7.1993 posted the petitioner in Project Girls High School, Itarhi and the petitioner gave his joining in the school which was approved by the District Education Officer, Bhojpur vide order dated 10.9.1993 contained in memo no. 1984. Subsequently an enquiry was made by 3 the District Magistrate regarding legality of the petitioner’s appointment. A direction was issued for conducting inquiry. During enquiry the petitioner was put under suspension and payment of salary was stopped. Subsequently on completion of the enquiry, the District Education Officer, Bhojpur through letter no.991 dated 25.3.1995 communicated his satisfaction regarding legality of the petitioner’s appointment and payment of his salary was started again. The District Education Officer, Bhojpur vide letter No. 212 dated 29.3.1995 communicated the Principal of the School that order staying payment of salary to the petitioner has been suspended by the District Magistrate, Buxar and the Headmaster was directed to act accordingly by reinstating the petitioner and resuming payment of salary. The Headmaster of the School did not resume payment of salary, though the petitioner continued to discharge 4 his duty. The salary of the petitioner remained unpaid since May, 2001. Petitioner moved before the High Court in CWJC No. 13429 of 2003, which was heard analogous with CWJC No. 12631 of 2008 and other cases, as petitioners in each case have claimed for payment of salary and other emoluments incidental to their service. The writ application was disposed off and the matter was remitted to the Director, Secondary Education for consideration and just decision, regarding the claim of the petitioner. In the writ application, counter affidavit has been filed informing that vide memo no. 413 dated 30.12.2003 the service of the petitioners has been terminated. While disposing of the writ application liberty was given to the petitioners for filing their representation before the Director, Secondary Education for disposal of the representation within four months from the date of its filing. 5 The petitioner also filed representation before the Director, Secondary Education, which was rejected vide order dated 1.1.2008 with a finding that appointment of the petitioner was without observing the procedure for legal appointment, without inviting applications, without following the reservation/roaster and since, appointment was made through backdoor method, as such in the light of the decision of the Apex Court in the case of Secretary State of Karnataka vs. Uma Devi & ors, reported in 2006 (4) SCC 1, petitioner was not entitled for regularization of his service. For quashing of this order petitioner filed CWJC No. 7342 of 2008 which was disposed off with a direction to file an appeal before the Principal Secretary and the Principal Secretary, was directed to dispose it ff within a period of four weeks. The Principal Secretary has rejected the appeal of the petitioner vide order dated 6.2.2009 contained in Memo No. 6 42(P) on similar grounds, on which the Director has rejected the representation of the petitioner, filed as per the direction of the High Court in the earlier writ application. No counter affidavit has been filed on behalf of the State. Counsel for the petitioner submits that the Principal Secretary has not considered his appeal with an independent mind, rather on nonest ground and travelling beyond the arena of the consideration, the impugned order has been passed. It has also been submitted by the petitioner’s counsel that in a matter of similarly situated persons, this Court in CWJC No. 7786 of 2002 and analogous cases has quashed the termination orders, which was issued simply by issuing a show cause notice, without disclosing the reason for terminating the service of the petitioner. The termination order do not disclose the reason for its’ issuance, not a 7 word has been mentioned that since his appointment was contrary to the mandates of Articles 14 and 16 of the Constitution of India, it is being issued. In CWJC No. 7786 of 2002 and analogous cases, it was held that even assuming that petitioners were not appointed in accordance with law and their appointments may be termed as illegal, the authorities admittedly acquiesced in the infirmities committed by them by allowing the petitioners to continue for more than a decade. The principle as formulated above is no more res integra and has been set at rest by the various decisions of the Supreme Court and this Court. In this connection reference may be made to the case of Roshni Devi and ors. vs. The State of Baryana and ors. reported in 1998 (8) SCC 59 and the Case of Union of India and others vs. Kishori Lal Bablani reported in AIR 1999 Supreme Court 517. In these cases the Apex Court has observed that 8 the persons who may not have been appointed strictly in accordance with law, but being appointed, continued in services for several years, should not be disturbed, after continuance in their respective services, for several years. Appointment of the petitioners cannot be said to be violative of Articles 14 and 16 of the Constitution of India. Counsel for the petitioner submits that judgment and order passed in CWJC NO. 7786 of 2002 and analogous cases was affirmed in LPA No. 1312 of 2002 and the LPA Bench held that once the appointment of the petitioner was doubted and after show cause the petitioner was allowed to continue on the post and thereafter he continued to work uninterruptedly, in such cases, the legal conclusion will be that the respondents have dropped the matter regarding legality of the appointment. Once a competent authority of the State has, thus, concluded the matter nine 9 years back, the same authority cannot reopen the matter by issuing a fresh show cause. It is stopped by representation. Against the order passed in LPA, State of Bihar filed Civil Appeal No. 12320 of 2008, which was dismissed by order dated 15.9.2008. Petitioner in those writ applications were reinstated and continuing on those posts. Counsel for the petitioner submits that since the petitioner has also been terminated in the same manner, as such he is also entitled for similar relief. It is also submitted that all these decisions were brought to the notice of the Principal Secretary, Human Resources Development Department but he failed to consider it, and rejected on the ground that Apex Court in the case of Secretary State of Karnatka Vs. Uma Devi & ors,(2006(4) SCC 1), has held that such appointees are not entitled for regularization. Ground taken by the Principal Secretary, while 10 rejecting the appeal preferred by petitioner is that the District Magistrate, Buxar was not competent to direct the District Education Officer to adjust/appoint petitioner in any of the Project Schools. Appointments of only such teaching and non-teaching employees can be considered to be valid, who were appointed by the Managing Committee in the Project School of 1984-1985. Report submitted by three Men Committee, in the light of Supreme Courts direction, is also to this effect that appointment of any outsider in the Project School, cannot be treated as valid appointment. Counsel appearing for the State submits that since, petitioner’s appointment was in violation of the letter No. 16440 dated 3rd December, 1980 issued by the Department of Personnel and Administrative Reforms, which provided a procedure for appointment on Class III post in Government Offices, it is 11 an illegal appointment. Counsel for the petitioner submits that the Govt. letter dated 3.12.1980, has no application in teachers’ appointment. It is applicable in appointments of Class III posts in Secretariat and different Government Departments. So far petitioner’s appointment is concerned; it was in a Project School. The District Magistrate, being the Chairman of the Establishment Committee, considering the vacancy and the eligibility of the petitioner directed the District Education Officer to appoint the petitioner against vacant post. The District Education Officer, on the direction of the Chairman of the Establishment Committee, appointed the petitioner on the post. Even if, it is presumed that the procedure was not strictly followed in petitioner’s appointment, but admittedly, it was well within the knowledge of the respondents, that on account of such 12 appointment, petitioner continued for ten years. On earlieir occasion payment of petitioner’s salary was stopped in order to examine and enquire about legality of his appointment. Subsequently the order restraining payment of salary was recalled and the petitioner was allowed to continue on the post. This shows that respondents have accepted the legality of petitioner’s appointment. In this background, the respondents could not have issued termination order, even without issuing any notice to show cause. Such termination order issued in the year 2003 cannot be held to be a legal order, being violative of rule of natural justice. Petitioner, who was working as a regular employee could not have been terminated even without show cause notice and without holding any proper inquiry in this regard. No counter affidavit has been filed by 13 the State and there is nothing to show that the case of the petitioner is on a different footing and not covered by the unreported decision in CWJC No. 7786 of 2002 and analogous cases, affirmed by the Division Bench in LPA No. 1312 of 2002 and finally approved by the Apex Court vide order dated 15.9.2008 passed in SLP No. 12320 of 2008. I am of the view that the petitioner is entitled for similar and identical relief. The termination order issued against the petitioner, without any show cause and without any proper inquiry is quashed. It is not a case in which petitioner continued in service, for ten years, on the basis of forged appointment letter. Respondents have also admitted that on District Magistrate direction, the District Education Officer, Buxar, had issued appointment letter in favour of the petitioner. This is not a case, which can be termed as ‘appointment ab-initio-void’. It can be treated as an irregular appointment, and 14 well within Para-meters fixed in ‘State of Karnataka vrs. Uma Devi’, case. It is a fit case, in which direction can be issued for treating the appointment as regular appointment. Respondent Director, Secondary Education, Bihar, Patna as well as District Education Officer, Buxar are directed to reinstate the petitioner on the post he was working. Termination order dated 30.12.2003, contained in Memo no. 413, is quashed. The Head Mistress, Project Girls High School, Itarhi is directed to allow the petitioner to join his post and to discharge his duty. Respondent nos. 1 and 2 are also directed to pass consequential orders, allowing all benefits to the petitioner, attached to the post. (Mridula Mishra,J.) A.Kumar