IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10 of 2004 ASHA KUMARI Versus THE STATE OF BIHAR & ORS ----------- 4/ 18/03/2010 Heard learned counsel for the petitioner and learned counsel for the State. A show cause notice was issued to the petitioner on 19.11.1998 questioning the validity of her appointment on the post of Laboratory Assistant by the Regional Director of the Animal Husbandry Department, Magadh Range at Gaya on 14.12.1989. The petitioner replied to the same stating that the issues of competence to make appointment can only be answered by the Regional Director himself as no officer can make appointments without authority. She further stated that her appointment came to be made in pursuance of a notice placed on the notice board after interview along with others and came to be regularized only after the recommendation of a selection committee. Learned counsel places strong reliance on Annexures-12 and 13 to the supplementary affidavit of the petitioner dated 17.3.2010 that certain others appointed along with her are being retained in service and whose letters of appointment were couched in similar language. He further relies upon a decision of this Court in C.W.J.C. 2 No.1998/2000 with regard to appointments made by the Regional Director of the Animal Husbandry Department, Magadh Range at Gaya on Class-3 posts to which the petitioner belongs, prior to the cut-off date of 21.2.1992. Learned counsel for the State contends that the appointment of the petitioner was without any procedures. Moreover, the post of a Laboratory Assistant was a State cadre post on which the Regional Director was not competent to make appointments and no authority for the same had been given to him. This has been stated in a supplementary counter affidavit served on the petitioner on 30.9.2005. The Director, Animal Husbandry was the authority alone competent to make such appointments of the State Cadre Posts and that too after obtaining recommendation of the Bihar State Subordinate Service Selection Board or the Bihar Public Service Commission, as the case may be. The power to make appointments on Class-3 posts given to the Regional Director was only with regard to ministerial post that of Milk Recorder / and Store-keeper, but not that of a Laboratory Assistant. Though two affidavits have been filed on behalf of the petitioner thereafter, there is no denial of this statement of fact. Annexure-1 to the writ petition on which the 3 petitioner contends that power was given to the Regional Director to make appointments states that it had become necessary to giver certain powers of the Director to the Regional Director in order to expedite works at the regional level. The nature of the powers is then inter alia specified with regard to casual leave, passing of bills etc. However, learned counsel for the petitioner submits that once the power of the Director was given to the Regional Director it cannot be said that outright the appointment was illegal. The writ petition or the several affidavits do not state that the petitioner was even registered with the employment exchange. In her reply to the show cause notice, the petitioner in no uncertain terms acknowledges that there was no advertisement when she states that she applied in pursuance of a notice published in the notice board. Such a manner of appointment has been held to be illegal in (2008) 1 SCC 798 (Nagendra Chandra & Others Vs. State of Jharkhand & Ors) when even long continuance of 14 years to condone the illegality was rejected and the claim dismissed. There is no statement in the writ petition that the petitioner came to be appointed by a process of selection. On the contrary, her letter of appointment dated 14.12.1989 first appoints her and states that she shall be required to appear before a 4 selection committee later in accordance with rules. That is clearly putting the cart before the horse. Even insofar as her claim for regularization is concerned since 10.12.1990, it simply talks of an individual regularization of the petitioner and does not make any reference to any selection committee constituted and which found her eligible for appointment etc. contrary to the ground stated in her show cause. Even in the writ petition the petitioner does not state any details as to who were the members of the committee, when was the sitting held, approximately how many candidates apart from her participated in the process etc. The twin issues now are the legality of her appointment even if the Regional Director had the authority to make such appointments and the authority of the Regional Director to make such appointments if the post was a State cadre post. The explicit stand of the State that it was a State cadre post has not been denied by the petitioner. Assuming for the sake of argument that the Regional Director had been given such authority, the petitioner has still been unable to demonstrate the legality of her appointment by an open advertisement and selection when this Court has arrived at clear findings to the contrary from the materials on record. 5 In (2009) 5 SCC 65 ( STATE OF BIHAR Versus UPENDRA NARAYAN SINGH AND OTHERS) relied upon by the State it has been noticed that on 4.7.1987 one Dr. Darogi Razak and who also made appointment of the petitioner was authorized as the Regional Director, Animal Husbandry, Gaya to make appointment on Class-3 and 4 posts. This came to be subsequently superseded on 28.10.1991/16.4.1996. In between, the aforesaid Dr. Razak made a large number of appointments without issuing advertisement or sending requisition to the employment exchange and without making selection of any sort. When enquiry was made, further appointments of the nature of the petitioner also transpired. The Supreme Court considering a similar claim of regularization, as is presently being made, at paragraphs- 59, 63 and 64 of the judgement observed as follows:- “59. At the hearing of this appeal, we asked the learned Senior Counsel appearing for the respondents to show that before appointing his clients on ad hoc basis, the then Regional Director, Gaya had issued an advertisement and or sent requisition to the employment exchange and made selection after considering competing claims of the eligible candidates but he could not draw out attention to any document from which it could be inferred that the respondents were appointed after advertising the posts or by adopting some other method which could enable other eligible persons to at least apply for being considered for appointment. He, however, submitted that issue relating to legality of the initial appointments of the respondents has become purely academic and this Court need not go into the same because their services had been 6 regularized by the competent authority in 1992.” “63. The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned Senior Counsel appearing on their behalf in the context of averments contained in Para 4 of the counter- affidavit filed before this Court by Shri Prasannjeet Kumar Singh (Respondent 3 herein) is a proof of nepotism practiced by the officer and deserves to be ignored. For the reasons best known to them, the respondents have not produced copy of the order by which their services were regularized. Perhaps none exists.” “64. The statement furnished by the counsel for the appellant, which is accompanied by documents marked “A” and “B”, shows that in less than 7 months of the respondents’ appointment (except Respondent 1 who is said to have been appointed with effect from 9-10-1991), Dr. Darogi Razak is said to have written confidential memorandum bearing No. 20 dated 11-5-1992 (Annexure A) to the District Animal Husbandry Officer, Aurangabad, Gaya that ad hoc appointments made vide Memorandum No.1467 dated 9-10-1991 are being regularized temporarily by the Local Appointments Committee constituted on 11-5-1992. What is most amazing to notice is that the Local Appointments Committee was constituted on 11- 5-1992, the Committee met on the same day and regularized the ad hoc appointments and on that very day the Regional Director sent a confidential letter to his subordinate i.e. the District Animal Husbandry Officer informing him about the regularization of ad hoc appointments. No rule or policy has been brought to our notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. Therefore, we have no hesitation to hold that the exercise undertaken by Dr. Darogi Razak for showing that appointments of the respondents were regularized by the Local Appointments Committee on 11-5-1992 was a farce.” It is axiomatic that the appeal in the case of Upendra Narayan Singh (Supra) arose out of a Division 7 Bench order of this Court which declined interference with an order allowing the writ petitions only because orders on certain other similar writ petitions had not been challenged by the State of Bihar. That aspect shall answer completely the contention of the petitioners from C.W.J.C. No.1998/2000 sought to be relied upon and which facts, in any event, as noticed presently do not appear to have been presented before this Court. Even if certain others similarly appointed are wrongly retained, that is for the State to examine to fulfil its obligations under Article-14 of the Constitution of India which this Court expects, but cannot be a ground to demand perpetuation of an illegality by setting aside the termination of the petitioner to enforce Article-14 of the Constitution as discrimination does not operate in illegality. There is no merit in this application. It is accordingly dismissed. KC/ ( Navin Sinha, J.)