IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.772 of 2010 1. THE STATE OF BIHAR 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, TIRHUT DIVISION, MUZAFFARPUR 4. THE DISTRICT EDUCATION OFFICER, SITAMARHI 5. THE REGIONAL EDUCATION OFFICER, RUNNI SAIDPUR, SITAMARHI. --------------Respondents/Appellants. Versus DILIP KUMAR S/O SHRI BHOLA RAM R/O MOHALLA- KUMHRAR, POST- LOHIA NAGAR, P.S.- AGAM KUAN, DISTT.- PATNA. ---------------Petitioner/Respondent. For the Appellants: Mr. Sunil Kumar Mandal, SC-15 & Mr. Arjun Prasad, A.C. to S.C.15. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA ORDER (27.04.2010) As per Mihir Kumar Jha, J. I.A. No.4087 of 2010. (1)Having heard learned counsel for the appellants as also considering the facts mentioned in this application, the delay in filing of this appeal is condoned. (2)I.A. No.4087 of 2010 is accordingly allowed. L.P.A. No.772 of 2010. 2 (3)Having condoned the delay we are also inclined to take up hearing of this appeal on merits and accordingly we have heard learned counsel for the appellants at length. (4)In this intra-Court appeal an order passed by the learned Single Judge dated 18.11.2008 in C.W.J.C. No.1649 of 2002 has been assailed by the appellants-State of Bihar and its officials on the ground that the very appointment of the respondent-writ petitioner which was sought to be terminated by the impugned order of termination of his service dated 10.2.1999 was in violation of Article 14 of the Constitution of India and further that his such appointment was made without following the prescribed rules. (5)Counsel for the appellants in this regard has submitted that the learned Single Judge has allowed the writ petition of the respondent-writ petitioner only on the ground that the same termination order as in respect of similarly situated person, namely, Shankar Rajak was allowed by order dated 2.8.2001 in C.W.J.C. No.2816 of 3 1999, but then such order was passed at a point of time when the judgment of the Apex Court in the case of ‘Secretary, State of Karnataka & Ors Vs. Uma Devi & Ors’ reported in (2006) 4 SCC 1 had not decided the issue conclusively. He has, therefore, submitted that the learned Single Judge ought to have not followed the order in the case of Shankar Rajak, disposed of by order dated 2.8.2009 in C.W.J.C. No.2816 of 1999 and ought to have examined the issue relating to the appointment of the respondent-writ petitioner independently. (6)In the opinion of this Court, when it is not in dispute that both the respondent-writ petitioner and Shankar Rajak were appointed on the post of Clerk in the offices of the Education Department by the same appointing authority, namely, the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur by following the same process of selection and appointment, it would be difficult for this Court to treat the case of the respondent-writ petitioner distinguishable with the case of Shankar Rajak especially when both of them were sought to be terminated by the same order of termination 4 dated 10.2.1999. Thus, the view taken by the learned Single Judge of treating the case of the respondent-writ petitioner at par with the case of Shankar Rajak, cannot be held to be erroneous either in fact or in law. (7)Additionally, this Court has also gone into the specific stand of the writ petitioner that his name was recommended by the employment exchange pursuant to a requisition made by the office of the Regional Deputy Director of Education, whereafter he was also subjected to the process of selection by holding an interview as is evident from the interview call letter dated 5.6.1995 (Annexure-2 to the writ petition). The resultant appointment letter dated 7.6.1995 also was issued not on the independent decision of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, but as per the decision of the Divisional Establishment Committee, a fact which is borne out from the appointment letter of the respondent-writ petitioner dated 7.6.1995 (Annexure-3 to the writ petition). Under the relevant rules of recruitment on the post of Clerk framed under proviso to Article 309, namely, Ministerial Staff 5 Service Condition Rules, 1974 the power of appointment on the post of Clerk is vested in the Regional Deputy Director of Education, who has to take such decision through the Divisional Establishment Committee consisting of three senior most District Education Officer of the Division. Thus, once it is found that the name of the petitioner was not only received through the employment exchange, but he was also subjected to the process of selection through the interview by the selection committee in terms of the aforementioned rules and his decision for appointment was taken by the competent Divisional Establishment Committee, it would be difficult to uphold the order of his termination of service dated 10.2.1999 which is based on mere ipse dixit of the successor Regional Deputy Director of Education, Tirhut Division, Muzaffarpur in the impugned order dated 10.2.1999. (8)A bare perusal of the order of termination of services of the respondent-writ petitioner and Shankar Rajak as well as six others by the same order dated 10.2.1999 would go to show that the appointment of all 6 the eight persons was held to be illegal/irregular only on the ground that they did not submit the records as directed to be submitted by the successor R.D.D.E, Tirhut Division, Muzaffarpur. This Court would fail to understand as to what more the respondent-writ petitioner apart from his interview call letter or the letter of appointment would have produced., (9)In that view of the matter, this Court must hold that the reliance placed by the learned Single Judge on an order of this Court dated 21.5.2000 in C.W.J.C. No.5003 of 1999 (Ravindra Kumar Tiwary Vs. State of Bihar & Ors) wherein it was held that:- “Though in the impugned order no ground has been assigned for coming to the conclusion that the appointment was illegal except a bald statement to the effect that on the basis of available records it appears that the appointment was not in accordance with the circulars of the Personal and Administrative Reforms Department of the Human Resources Development Department issued from time to time, the respondents have spelt out the grounds in the counter affidavit. It is said that no advertisement was published in any newspaper at the State 7 Level; secondly no interview was held, thirdly, roster was not cleared, and lastly, panel list was not prepared. The petitioner has filed reply to the counter affidavit controverting the aforementioned grounds. Counsel for the parties made detailed submissions. The object of the advertisement undoubtedly is to ensure fair selection. Unless the vacancies are notified to the candidates at large and opportunity is given to them the selection cannot be said to be legal. In the present case, even it is disputed that the vacancy was not advertised in any newspaper at the State level, the respondents do not deny the petitioner’s case regarding calling for name from the Employment Exchange and forwarding of petitioner’s name by the Employment Exchange on 2.6.95 vide Annexure-2. It is significant that the appointment is said to have been made by a Divisional Establishment Committee. From the order itself it appears that the said selection has been made from the list of candidates forwarded by the Employment Exchange. In the absence of any case allegation malafide or fraud at the hands of the members of the Divisional Establishment Committee, which had made selection, I do 8 not think the appointment of the petitioner can be upheld to be vitiated on conjuncture. The plea of non-holding of the interview is based on the basis of available records. As regards the other two grounds relating to clearance of roster and preparation of panel, foundation facts have not been stated by the respondents to suggest that the appointment of the petitioner was in excess of the quota. May be, roster clearance was not taken from the concerned authority as per the circular of the Personal Department, but if the appointing authority did not adhere to the procedure, it may not be proper to penalize the appointees. As already stated above, no fraud has been alleged nor is said that appointment was made on various consideration. In that view of the matter, in my opinion, the fact that the roster clearance was not taken and panel was not prepared are not appropriate grounds to justify the termination of the services of the petitioner. In the above premises, I hold that the grounds on which the petitioner’s services have been termination do not go to the root of the order. The impugned letter/order as contained in Annexures 1 and 1/A are accordingly quashed and this writ 9 petition is allowed”, would apply in full force in the case of the respondent-writ petitioner, inasmuch as, the same was also referred to while setting aside the order of termination of Shankar Rajak, who as noted above was also terminated by the same impugned order dated 10.2.1999 as in the case of the respondent-writ petitioner. (10)It has to be noted that this aspect of the matter as with regard to the case of Shankar Rajak being similar to Ravindra Kumar Tiwary was gone into by the learned Single Judge in the order dated 2.8.2001 in C.W.J.C. No.2816 of 1999, wherein he had held as follows: “The petitioner, inter alia, has relied on orders of this Court in the cases of Ravindra Kumar Tiwary (CWJC No. 5003 of 1999 disposed of on 21.9.2000) and Anil Kumar Jha (CWJC No.4815 of 1999 disposed of on 10.1.2001). By order dated 26.6.2001 the respondents were directed to file affidavit as to whether there is any distinction in the case of the petitioner on the other hand on the cases of said Ravindra Kumar Tiwary and Anil Kumar Jha. Supplementary counter affidavit sworn by Shri Dasrath Ram, RDDE, Tirhut Division, Muzaffarpur has been filed stating therein that while the other 10 petitioners had filed show cause pursuant to notice, the petitioner did not file any show cause. This hardly can be said to be a point of distinction, so far as the validity of the appointment and/or termination of the services is concerned. Though normally this Court expects the person aggrieved to exhaust internal remedy and where notice has been issued to the person, to ask him to file show cause pursuant to such notice as a rule of expediency, convenience and prudence, there is no bar to exercising writ jurisdiction if the person concerned omitted to file show cause. That being the only point of distinction, no other distinction having been pointed out by the respondents, as stated by the counsel for the State, I am of the view that the petitioner deserves similar treatment as in the cases of Ravindra Kumar Tiwary and Anil Kumar Jha aforesaid. Accordingly, the impugned order dated 10.2.99 as contained in annexure 1 is quashed and this writ petition is disposed of in the same terms as C.W.J.C. Nos. 5003/99 and 4815/99.” (11)It is this special feature of this case, as with regard to the case of the respondent-writ petitioner being identical to the case of Ravindra Kumar Tiwari and Shankar Rajak which would compel us to affirm the following findings of the learned Single Judge in the impugned order: “The submission advanced by learned 11 counsel for the State is sound in law but does not apply to the facts of the present case. In this case, as noticed earlier in the case of Ravindra Kumar Tiwary and followed in the case of Shankar Rajak, it has been held that the appointment process did not suffer from any illegality going to the root of the appointment process. Hence, in view of such finding of fact the petitioner’s case must be treated at par with the case of Shankar Rajak and Ravindra Kumar Tiwary. Following the judgments as contained in Annexures-12 and 13 the writ petition is also allowed. The impugned order dated 10.02.1999, as contained in Annexure-1 is quashed in respect of the writ petitioner.” (12)We have also perused the counter affidavit filed in the writ petition to show the similarity of the case of the respondent-writ petitioner to the case of Shankar Rajak specifically asserted in the writ petition and the rejoinder to the counter affidavit and from the same also it becomes clear that the case of respondent-writ petitioner was at par with the case of Shankar Rajak. (13)The view that we have taken above also gets support from the judgment of the Division Bench in the case of ‘Vasant Kumar Vs. The State of Bihar & Ors’, reported in 2010 (1) PLJR 857, wherein the 12 Division Bench as with regard to the persons similarly situated in the matter of termination vis-à-vis regularization of service had held as follows:- “By the order under appeal dated 30th April, 2009 the writ petition bearing C.W.J.C. No.5355 of 2009 preferred by the appellant, has been dismissed on the ground that by a reasoned order the appellant’s case for regularization was rejected by the authorities vide order dated 3.9.2008 (Annexure-28 to the writ petition). It was also indicated by the writ Court that case of the appellant for regularization does not meet the requirements laid down in the judgment of the Supreme Court in the case of Secretary, State of Karnataka and Ors. Vs. Uma Devi and Ors. (3), reported in (2006) 4 SCC 1 (2006 (2) PLJR (SC) 363 ). Before us a simple argument has been advanced on behalf of the appellant that while the appellant was appointed on ad hoc basis on the post of Clerk on 13.7.1985 vide Annexure-1 for a period of six months and again on 24.1.1986 vide Annexure-4 the three other persons similarly appointed on ad hoc post for six months vide a later order dated 9th of September, 1986 (Annexure-5) alongwith two others were regularized in 13 service from the date of their appointment on ad hoc basis by order dated 14.8.1997 (Annexure-12/B). It appears that some more benefits were given to those employees regularized vide Annexure-12/B vide a subsequent order dated 2.5.1998 contained in Annexure-12/C. Annexures-12/B and 12/C contain reference to the orders passed in a writ petition bearing C.W.J.C. No.9871 of an explanation that those orders have been passed in compliance of the directions/orders of the Hon’ble High Court. If the orders of the Hon’ble High Court were accepted by the respondents as correct and implemented giving benefit to persons similarly situated as the appellant in that event the respondents clearly erred in law in treating the appellant differently and ignoring his claim for regularization only because he had not approached this Court through a writ petition. Such action of the respondents was in violation of Articles 14 and 16 of the Constitution of India. At the relevant time when Annexures-12/B and 12/C were passed by the concerned respondents in the year, 1997 and 1998, it was their legal duty to treat all similarly situated ad hoc employees in like manner. In view of the aforesaid 14 discussion, we find that the appellant was dismissed from service in the year, 2005 on account of illegal discrimination vis-à-vis similarly situated ad hoc employees regularized by Annexures-12/B and 12/C. There is no denial that those employees are still continuing in service as regular employee. As per law settled in the case of Uma Devi (Supra), the old transactions of regularization of services, already concluded are not to be reopened on account of judgment in Uma Devi’s case. Hence in this case requirement of justice warrants grant of relief to the appellant so that equality clause in the Constitution of India is not offended.” (14)That being so, in our considered opinion, there could not have any different result in the writ petition filed by the respondent-writ petitioner challenging the same order of termination dated 10.2.1999 which was also assailed by Shankar Rajak successfully and was quashed in respect of him in the order dated 2.8.2001 in C.W.J.C. No.2816 of 1999. (15)At the same time, we must note here that whereas Shankar Rajak had assailed his order of 15 termination dated 10.2.1999 immediately by filing CWJC No. 2816 of 1999 which was also quashed by this Court on 2.8.2001, whereas, respondent-writ petitioner had filed his writ application challenging the order after almost three years by filing the writ application only in the year 2002, which was also once dismissed for default on 24.8.2006, before its being restored and again reheard on merit for its being allowed by an order dated 18.11.2008 in M.J.C. No.2138 of 2006 the respondent- writ petitioner will not be entitled for any payment of salary for the period he has remained out of service. The respondent-writ petitioner, therefore, would only be entitled for continuity of his service, but would not be entitled for payment of salary for the period he had remained out of service, i.e, from 10.2.1999 to the date of his joining in pursuance of the impugned order dated 18.11.2008 in C.W.J.C. No.1649 of 2002. (16)In this regard we have found that joining of the respondent-writ petitioner has been accepted vide order of the Regional Director of Education, Muzaffarpur vide memo no.1146 dated 17.9.2009 as a 16 Clerk in the office of the Superintendent of Education, Vaishali and therefore payment of salary of the respondent-writ petitioner would only to be made w.e.f. 17.9.2009. (17)That being so, when the appellants have already been reinstated the respondent-writ petitioner in service by order dated 17.9.2009 and we have found no error in the impugned order passed by the learned Single Judge quashing the order of termination of Respondent writ petitioner dated 10.2.1999, this appeal must be and is hereby dismissed. (18)There would be, however, no order as to costs. (Dipak Misra, C.J.) (Mihir Kumar Jha, J.) Patna High Court The 27th March, 2010. Abhay Kumar/NAFR.