IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11930 of 2002 1. Kumari Sheela Singh, D/o Rajendra Prasad Singh, Resident of Village and Post Office Aasani, P.S. Udwantnagar, District Bhojpur. 2. Vishnudeo Singh, Son of Ram kumar Singh, Resident of Village and Post Office Nawada-Ben, P.S. Udwantnagar, District Bhojpur. 3. Birendra Prasad Singh, Son of Sri Bhgwati Singh, Resident of Village and Post Office Nawada Ben, P.S. Udwantnagar, District Bhojpur. --------- Petitioners Versus 1. The State of Bihar. 2. The Director, Department of Secondary Education, Government of Bihar, Patna. 3. The District Education Officer, Bhojpur, Ara. --------- Respondents With CWJC No.11976 of 2002 Gita Kumari, D/o Shri Rajdeo Singh, Resident of Parihar Sadan, Mohalla Mahatma Gandhi Nagar, Katira, Arrah, District Bhojpur. ----------- Petitioner Versus 1. The State of Bihar. 2. The Director, Department of Secondary Education, Government of Bihar, Patna. 3. The District Education Officer, Bhojpur, Arrah. -------- Respondents ----------- 4 01.07.2010 Heard Mr. Rajendra Prasad Singh, learned senior counsel, for the petitioners and counsel for the State in both the cases. In both these writ applications, the petitioners have assailed the order of their termination from service dated 11.2.2002. Learned counsel for the petitioners has submitted that the said order cannot be sustained in law, inasmuch as:- (i) The show-cause notice given to the 2 petitioners describing their appointment to be illegal did not disclose the materials on which such prima-facie infirmity in the appointment of the petitioners was alleged. (ii) The petitioners having filed an exhaustive show-cause reply, the resultant impugned order containing no reasons, can also not be sustained on account of violation of principles of natural justice. (iii) Similar order of termination has been interfered by this Court and also affirmed by the Apex Court. Counsel for the State on the other hand would submit that the appointment of the petitioner was made in violation of the provisions made in the statutory rules, even without issuance of any advertisement and/or undergoing process of selection and on the basis of such illegal appointment the petitioners had no indefeasible right to continue in service. He has also submitted that the plea of violation of principle of 3 natural justice either in the show-cause notice or passing of a reasoned order would also not be available as was held by the Full Bench of this Court in the case of Rita Mishra & Ors. Vs. Director of Primary Education, Bihar & Ors. reported in 1987 PLJR 1090. He would also highlight that since the appointment of the petitioners was also not made by the prescribed authority, the ratio of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors. reported in 2006(4) SCC 1 would be squarely applicable. In the considered opinion of this Court, the order of appointment of the petitioners by themselves would go to show that they were rank illegal appointment. In all of such appointment letters, it has been mentioned that since they were working in the same school without salary for certain period of time and the Headmaster had recommended for the appointment, the resultant appointment were made. A question would thus arise that if that be the mode of appointment that the Headmaster would select a person from anywhere and will allow them to continue in service by keeping them engaged without 4 salary for certain period of time and thereafter would recommend for appointment. Such procedure by itself will be in negation to the rights guaranteed under Article 14 & 16 of the Constitution of India. The statutory rules in fact only seek to achieve this sanguine object of the Article 14 & 16 by providing the manner of appointment through the issuance of advertisement followed by selection on a common parameter. Once this Court would find that the appointment of the petitioners was rank illegal and was made through backdoor, there would be nothing left in this case to decide the case in favour of the petitioners, who must have their exit in the same manner in which they were allowed to enter in service in the schools. Counsel for the State is correct that the Full Bench of this Court in the case of Rita Mishra (supra) has gone to hold that such illegal appointment in the teeth of Article 14 & 16 of the Constitution of India is a void appointment and would confer no right to the incumbent so as to claim 5 protection of principle of natural justice. In the present case, in fact, the petitioners were also not prejudiced on account of vagueness of the show-cause notice, inasmuch as, they had understood the nature of their illegal appointment when they had taken their exhaustive defence in their respective show- cause reply. The order which was to be passed on such show-cause reply had to only deal such contention and since none of them claimed to have either been appointed by observance of the prescribed procedure, advertisement and followed by selection, there was no requirement for giving detailed reasons in the order for termination of their service. In any event, the principle of natural justice cannot be put into straight jacket and will always differ from facts of case to case. In the present case, issuance of a show-cause notice itself would amount to providing opportunity to the petitioners to defend their appointment. The reliance placed by the learned counsel for the petitioners on the order of this Court and as affirmed by the Apex Court 6 also seems to be misconceived. From the order of this Court dated 10.10.2002 in CWJC No. 16466 of 2001, it would be found that the same was decided because there was no counter affidavit and the learned Single Judge had only followed an earlier order in CWJC No. 7786 of 2002. The said order being not on record and in any event the order passed in the resultant LPA makes it clear the facts were clearly distinguishable. This Court would therefore find that the same cannot be made applicable to the facts of the present case. From the order passed by the Division Bench in the resultant LPA No. 1312 of 2002, it would be found that this Court had interfered only because in those cases one earlier show-cause notice was issued to the writ petitioners alleging illegality in their appointment and thereafter, they were allowed to continue for a period of nine years. Under such circumstances, the Division Bench had held that if even after noticing the illegality in the appointment of the petitioners of those cases, they could not be continued in service for a long period of 7 time and they would not have been subjected to another show-cause notice and resultant order of termination. In the present case, there is no such fact, inasmuch as, there is only one show-cause followed by the order of termination. Obviously, the order of the Apex Court, therefore, affirming such order of the Division Bench can also not be made applicable to this case. In fact, these orders would also have no precedential value as was held by the Apex Court in the case of Uma Devi (supra) wherein the Constitution Bench had held that all earlier orders passed in the matter of illegal appointment or regularization will have no precedencial value for justifying similar illegal appointment. Recently, the Apex Court again, while reiterating the same principles in the case of Uma Devi (supra), has gone into the whole aspect at some length in the case of Md. Ashif & Ors. Vs. State of Bihar & Ors. reported in 2010(2)PLJR SC 156, wherein it was held as follows:- “11. Applying the test laid down by this Court in Uma Devi’s case (supra) and the cases referred to above, to the case at hand, there is no 8 gainsaying that the appointments of the appellants as Primary Health Workers were totally illegal and violative of Articles 14 & 16 of the Constitution which guarantee equality of opportunity to all those who were otherwise eligible for such appointments. The Chief Medical Officer who had made the appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which the appellants were appointed, considered. Surprisingly, the appointments had come by way of absorption of the appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs. 50/- only. The High Court has, in our opinion, correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State run dispensaries. The very nature of the appointment given to the appellants as Voluntary Health Workers was honorary in nature which entitled them to the payment of not more than Rs. 50/- per month. It is difficult to appreciate how the Chief Medical Officer could have regularized/ absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health 9 Workers which carried a regular pay-scale and which could be filled only in accordance with the procedure prescribed for that purpose. The appointment of the appellants against the said posts was thus manifestly illegal and wholly underserved to say the least. Inasmuch as these appointments came to be cancelled pursuant to the said directions no matter nearly a decade and a half later the termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. The High Court was, in that view of the matter, justified in declining interference with the order of cancellation and dismissing the writ petitions.” Thus, this Court while following the ratio of the case of Md. Ashif (supra) would find no merit in either of these two writ applications and accordingly, they are dismissed. Rsh (Mihir Kumar Jha, J.)