IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17887 of 2008 ANIL KUMAR, Son of Bhikhari Singh, Resident of Village- Amlori, P.S. – Siwan Mufassil, District- Siwan. ……… Petitiner. Versus 1. THE STATE OF BIHAR, through its Chief Secretary,Bihar, Patna. 2. The Commissioner-cum-Secretary, Department of Human Resources, Government of Bihar, Patna. 3. The Additional Commissioner, Human Resources Department, Bihar, Patna. 4. The Director, Secondary Education, Department of Human Resources, Government of Bihar, Patna. For the Petitioner: Dr. K.N.Singh, Sr.Adv. Mr. Akhilesh Kumar,Adv. For the Respondent: G.A. I. ----------- 2/ 03/08/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 19.4.2008 by which his appointment has been held to be illegal on the ground that prior to the appointment the reservation roster clearance had not been obtained. The petitioner was unable to demonstrate publication of an advertisement prior to his appointment which led to the conclusion that the appointment had been made without an advertisement and lastly that the procedure provided under Circular No.16440 dated 31.12.1980 with regard to appointments on Class-3 post had not been followed. Learned counsel for the petitioner submits that his appointment had been made by a Selection Committee at a meeting dated 3.3.1992 presided over by - 2 - the Regional Deputy Director of Education, Saran Division at Chapra in which the District Education Officer of Saran, Siwan and Gopalganj had participated. Relying upon the Bihar Education Code, Part-3, dealing with appointment and promotions, from Clause-7(C) it is submitted that at best, in the Selection Committee the senior most member of the Government Teachers Training College of the Division alone was not present. There was thus substantial compliance in the constitution of the Committee. The services of the petitioner were terminated on 10.6.1993, questioned by him in C.W.J.C. No.6260/93. This Court noticed that the respondents terminated his service not for any one of the reasons presently being mentioned, but only on the ground of an order passed by this Court in another writ petition with which the petitioner was unconnected and the grounds were entirely different. The other writ petition related to appointments temporary and stop gap arrangements. This Court noticed that the temporary appointment of the petitioner on 3.3.1992 had been confirmed vide Annexure-23 therein subsequently. This Court thus held that the petitioner was situated completely different and that his termination was not justified. The termination was quashed. - 3 - The petitioner was taken back into service. A fresh enquiry was held and fresh termination ordered on 6.7.2000. The petitioner questioned the same in C.W.J.C. No.8558/2000. This Court on 14.8.2001 noticed that earlier his termination had been set aside. They had again been terminated for not having been validly appointed on the ground that the Regional Deputy Director of Education had no authority in law to make the appointment. This Court noticed from the counter affidavit the objection of the respondents that the appointment was not in accordance with law, roster clearance and reservation rules were not followed. This Court also noticed that the counter affidavit did not make any specific statement that the posts had not been advertised and no names summoned from the Employment Exchange. The eligibility and qualification of the petitioner was also not questioned in the counter affidavit. The Court then arrived at the finding that the petitioners had been appointed by an Establishment Committee on regular basis and that his appointment had been approved. There is no allegation of any fraud played by the petitioner in the appointment or that it was made for extraneous considerations. If the roster clearance and reservation rules were not followed, the petitioner could not be held responsible for the same - 4 - years later. The reasons assigned by the respondents for termination were therefore held to be not sustainable and the writ petition came to be allowed. The respondents questioned the order in L.P.A. No.776/02 when it was referred along with analogous cases to a Three Man Committee for scrutiny of matters. Thus, the writ petition. Learned counsel for the State submitted that in C.W.J.C. No.6260/93 this Court had observed in the penultimate paragraph that the respondents shall be at liberty to consider the case of the petitioner afresh if such occasion arises. Invoking the doctrine of merger it is submitted that the order in C.W.J.C. No.8558/2000 merged into the Division Bench order when the legality and validity of the appointment of the petitioner remained open for appropriate consideration by the respondents which has now been found to be illegal and therefore this Court should not interfere with the impugned order. Strong reliance was placed on the provisions of the Bihar Education Code and the circular dated 3.12.1980 to submit that a merit list based on marks obtained by the candidate was required to be prepared before appointment. On the own showing of the petitioner, the constitution of the Selection Committee was not proper. It was lastly submitted from the - 5 - appointment order dated 7.3.1991 that it was patently obvious that the appointment of the petitioner was not in accordance with law. Each case of appointment has to be adjudicated on its own facts. The petitioner does not base his claim for a valid appointment on any order dated 7.3.1991. The sheet anchor of his case is the proceedings of the Establishment Committee dated 3.3.1992 so considered by this Court in C.W.J.C. No.8558/2000. Applying the principle of merger, this finding was not disturbed by the Division Bench while referring to a three man committee. The impugned order arrives at no contrary finding that no Establishment Committee had been constituted at all. This Court holds from the aforesaid discussion that a Committee had been constituted. That at best it may not have been complete because of the absence of one member only. There was substantial compliance in the constitution of the Selection Committee which selected the petitioner. The impugned order seeks to fault the petitioner for the lapses of the officials themselves in having made appointments without roster clearance and reservation rules. The counter affidavit is completely silent on what action, if any, had been taken against the officers concerned. Insofar as the non-publication of an - 6 - advertisement is concerned in stead of arriving at a finding that according to Government records no such advertisement had been published, the authorities have intentionally sought to cast their own burden of proof on to the petitioner and then to indict him for what was basically answerable by them alone. Once the respondents had asserted that no advertisement had been published based on documentary evidence and confronted the petitioner with the same, only then the onus would have shifted to the petitioner. The impugned order on that ground is based on assumptions and presumptions. A litigant coming to the Court is confronted with issues of constructive res judicata. He is required to raise all issues in one writ application. He cannot be permitted to file successive writ applications each time he realizes that he had missed out a ground. This principle is based on the premise that no one should be vexed more than once for the same thing. This principle shall apply with equal force in converse to the respondents. All objections with regard to an appointment had to be taken by them at the very initial stage. Being the Government, there has to be a finality and certainty to their actions. They cannot be permitted to wake up in any fits and starts from their stupor and claim to be wiser - 7 - subsequently. The officials of the Government contesting litigation at the tax payers’ expense cannot subject the petitioner to repeated harassment of successive litigations to be borne by him from his own coffers, especially when he has more than one order in his favour already. The impugned order dated 19.4.2008 is therefore not sustainable. It is accordingly set aside. The writ application stands allowed. KC ( Navin Sinha, J.)