IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9488 of 2007 1. Badrul Ahad Khan, son of late Abdul Ahad Khan, resident of Mohalla Nazni Chowk Ganj No.2, Bettiah, P.S. Town Thana Bettiah, District West Champaran 2. Mustaque Ahmad, son of Md. Imamuddin, resident of village + P.O. Amodoi, P.S. Ramgarhwa, District East Champaran at Motihari 3. Ashfaque Ahmad, son of Md. Imamuddin, resident of village + P.O. Amodoi, P.S. Ramgarhwa, District East Champaran at Motihari … Petitioners Versus 1. The State Of Bihar 2. The Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 3. The Secretary, Human Resources Development Department, Govt. of Bihar, Vikash Bhawan, Patna 4. The Director, Secondary Education, Human Resources Development Department, Govt. of Bihar, Vikash Bhawan, Patna 5. The Director Administration cum Joint Secretary Human Resources Development Department, Govt. of Bihar, Vikash Bhawan, Patna 6. The Secretary, Department of Finance, Govt. of Bihar, Old Secretariat, Patna 7. The Under Secretary (Finance), Personal Claim Fixation Cell, Finance Department, Govt. of Bihar, Old Secretariat, Patna 8. Inspectress of School cum Deputy Directress, Bihar, Near Dak Bunglow Road More, Patna 9. Deputy Director, Secondary Education Human Resources Development Department, Bihar, Vikash Bhawan, Patna … Respondents ---------------------------------- 2. 14.10.2011 Heard counsel for the parties. In this writ application the three petitioners have assailed an order dated 30.12.2006, as contained in Annexure 14, wherein their representation dated 21.7.2006 for their reinstatement in service has been rejected on the ground that the petitioners had approached the appellate authority after ten years of their termination of service. Mr. Bishnu Kant Dubey, learned counsel for the petitioners, assailing the aforementioned decision would submit that when the petitioners came to know that similarly situated person, namely, Arun Kumar Tiwari whose services were earlier 2 also terminated on 14.11.1998 was taken back in service under the order of the Director, Secondary Education dated 5.5.2006, as contained in Annexure 11 to the writ application, they had moved the authority for a similar treatment and as such, the view taken by the State Government and/or the appellate authority of there being an appeal and a delay in filing of such an appeal is wholly misconceived, inasmuch as the petitioners had never assailed their order of termination especially when in case of petitioners no. 2 and 3 no order of termination was ever passed. He would accordingly submit that if others could be reinstated in service even after a gap of 8 to 10 years the authorities being bound by concept of Welfare State were also required to give same treatment to the petitioners as in the case of Arun Kumar Tiwary. In this case a counter affidavit has been filed wherein the respondents have explained that the appointment of the petitioners on the post of Laboratory Assistant cum Workshop Assistant made by the Inspectress of the School in the month of April, 1989, on her own, without following the prescribed procedure was found to be bad in course of an enquiry undertaken by the authority pursuant to a direction of this Court in the order dated 7.5.1993 in C.W.J.C.No. 1373/1993 and the services of the petitioners alongwith ten others, all of whom appointed on the post of Laboratory Assistant cum Workshop Assistant, was cancelled by an order dated 7.3.1974 with a specific finding that their such appointment was made in teeth of constitutional mandate under Article 14 and 16 and without filling the prescribed procedure 3 including issuance of any advertisement in newspaper and undergoing the process of selection. It has also been explained that 11 persons including petitioner no. 1 had in fact initially raised a grievance by filing a writ petition C.W.J.C. No. 4748/1994 against the aforesaid order dated 7.3.1994 and that writ application was allowed by an order dated 12.4.1995 quashing the order and remitting the matter back to the Director, Secondary Education directing him to hear the matter on merit afresh and pass an appropriate order. In the counter affidavit it has been also explained that pursuant to remand of the matter by this Court the Director, Secondary Education had once again heard the matter and by an order dated 21.9.1995 it was held as follows: ^^funs'kd] ek/;fed f'k{kk }kjk ikfjr vkns'k dh lEiq"V fd;k x;ka funs'kd] ek/;fed f'k{kk }kjk ikfjr vkns'k ds fo:n~/k ;kfpdk la[;k&4748@94 nk;j fd;k x;k ftlesa dgk x;k fd funs'kd Aek0 f'k0A }kjk 11 vkosndksa dks ugha pquk x;k ,oa mUgsa fcuk lqus gh muds fo:n~/k vkns'k ikfjr dj fn;k x;kA vr% fnukad 12-4-95 dks ekuuh; iVuk mPp U;k;ky; us funs'kd] ek/;fed f'k{kk }kjk ikfjr vkns'k dks jn~n dj fn;k ,oa bls esfjV ij fu"iknu djus ds fy;s funs'kd ek/;fed f'k{kk dks funZsZ'k fn;kA bl lanHkZ esa bl ekeys ij iqu% fopkj fd;k tk jgk gSA vkosndksa ds uke fuEufyf[kr gSA 1- Jh f'ko 'kadj izlknA 2- Jh lqYrku vgen 3- Jh czts'k dqekj flUgk 4- Jh cnjy vgen [kkWa 5- Jherh jatw dqekjh 6- Jh jfodkUr lkgk 7- Jh pUnz'ks[kj izlkn 8- Jh fouksn izlkn flUgk 9- Jh v[kyk[k vgen 10- Jh fouhr dqekj 11- Jh x.ks'k flag ;g fu;qfDr iwoZ fon~;ky; fujhf{kdk Jherh lq/kk flUgk }kjk dh x;h Fkh tks lsok fuo~Rr gks pqdh gSA oRrZeku fon~;ky; fujhf{kdk] fcgkj iVuk us izfrosnu fn;k gS ftlesa Li"V:i ls vafdr fd;k x;k gS fd bu iz;ksx'kkyk lgk;dksa dks fu;qfDr fcuk foKkiu fudkys gh dh x;h gSA fu;kstuky; ls Hkh uke ugha ekaxk x;k FkkA jksLVj fDy;sjUl Hkh ugha djk;k x;k gSA fu;qfDr esa vkj{k.k fu;e dk ikyu ugha fd;k x;k gSA fu;qfDRk i= dh dk;kZy; izfr dk;kZy; esa miyC/k ugha gSA lkFk gh izf'kf{kr efgyk dks bl in ij fu;qfDr djuk gS fdUrq bl izko/kku ds foifjr vizf'kf{kr iq:"k dks fu;qDr fd;k x;k gSA mijksDr =qfV;ka lafpdk esa miyC/k vU; dkxtkr ls Hkh bl fu;qfDr esa lEiq"V 4 gksrh gSA mi;qZDr fLFkfr esa mijksDr 11 O;fDr;ksa dh fu;qfDr vkjEHk ls gh vfu;fer ,oa voS/k gSA vr% bls jn~n fd;k tkrk gSA** From the perusal of aforesaid order it would become clear that when services of eleven persons including the petitioner no. 1 holding the post of Laboratory Assistant cum Workshop Assistant were terminated on 21.9.1995 they did not move before any higher authority or any court of law and allowed the aforesaid order dated 21.9.1995 to have become final. It has to be noted that petitioner no.1 also directly affected by the order dated 21.9.1995 was aware of the procedure of appeal, inasmuch as when his services were earlier terminated on 7.3.1994 he had himself filed an appeal before the Education Commissioner. Be that as it may, the order of termination of petitioner no.1 and ten others dated 21.9.1995 had become final. It has to be also kept in mind that so far petitioners no. 2 and 3 are concerned, their appointment made on 7.4.1989 and 23.9.1989 was never cancelled but they also have joined the band wagon of 11 persons on the ground that they were not allowed to work after their termination order was issued in 1995. It will be thus difficult to believe that the persons like petitioners no. 2 and 3, who are said to have appointed in the year 1989 even when not specifically served with the order of termination having been not allowed to continue in service since 21.9.1995 were still hopeful of being taken back in service till the date of filing of their appeal when for them it was quite easy to come straightforward of their deemed continuation in service. The logical conclusion, 5 therefore, would be that petitioners no. 2 and 3 in fact had never joined the service or even if they had joined they had voluntarily abandoned their service and for them the relief of reinstatement as ultimately prayed by them alongwith petitioner no.1 after ten years in the joint appeal was a misnomer. The rest of the case of the petitioners that they should have been given similar treatment as extended to Arun Kumar Tiwari again has its own pitfalls. First of all Arun Kumar Tiwari whose reinstatement has been made the cause of action by the petitioners was in fact appointed as a Clerk and not a Laboratory Assistant cum Workshop Assistant. This Court is also not aware as to on what ground the services of Arun Kumar Tiwari was cancelled and again from the order of reinstatement of Arun Kumar Tiwari it is also not as to whether clear the persons holding the post of Clerk like Mr. Tiwari had moved this Court and in their case the order of termination was set aside by this Court. No such similarity therefore can be claimed by the petitioners by citing example of Mr. Tiwari, a Clerk who was removed by the authorities earlier and reinstated later on the ground that similarly situated clerks were reinstated in service under the orders of this Court. The petitioners being, therefore, appointed on a different post of Laboratory Assistant Cum Workshop Assistant can not be allowed to compare their cases with the Clerks of the Education Department and to that extent their reliance placed on the order of reinstatement in service of Arun Kumar Tiwari seems to be wholly misconceived. 6 The reasons given in the impugned order in fact will therefore have to be, still tested in the backdrop of the aforementioned admitted fact that petitioner no.1 despite being removed from service on 21.9.1995 did not move any authority for more than ten years and even if it is accepted that he had filed his first representation on 4.5.2006 to the Education Commissioner that also has held to be wholly belated at least for the purposes of reinstatement in service. It is true that a right of appeal against the order of termination of service of petitioner no.1 alongwith ten others in view of the order dated 21.9.1995 was available only for 30 days and the prayer ultimately made by petitioner no.1 with three others including petitioners no. 2 and 3 was to the same effect, inasmuch as such reinstatement could be made only after setting aside the order of termination of petitioner no.1 dated 21.9.1995. In that view of the matter, this Court does not find any error in the approach and conclusion arrived by the authority in rejecting their representation of the petitioners which was actually filed on 4.5.2006 after more than ten years of removal from service of petitioner no. 1 vide an order dated 21.9.1995. Mr. Bishnu Kant Dubey, learned counsel for the petitioners, had then sought to also justify the appointment of petitioners no. 1 and 2 by taking a plea that the reasons given for cancellation of appointment made by Inspectress of School, Patna with regard to non-observance of the mandate of Article 14 of the Constitution of India including issuance of advertisement and selection process can be said to have condoned in view of the 7 resolution of the Establishment Committee dated 15.5.1989. This aspect of the matter has been dealt at length in the counter affidavit and the respondents have explained that the whole proceeding of the Establishment Committee so far it related to the petitioners was itself forged and fabricated, inasmuch as such proceedings was in respect of only the lady teachers "Niyukt Shikshka Ka Nam" but curiously the name of the petitioners, who were actually appointed on the post of Laboratory Assistant cum Workshop Assistant, were included in it. As a matter of fact while this Court was not required to go into the correctness or genuineness of the order of termination of the service of petitioner no.1 dated 21.9.1995, inasmuch as the petitioner has not assailed the same either in this writ application or earlier writ application but then as this issue has been pressed by Mr. Dubey with all seriousness in defence of the petitioners for justifying their appointment, this much must be held that a mere recommendation by the Establishment Committee was not capable of curing the interest infirmities, going to the root of the matter including complete non-observance of the mandate of Article 14 of the Constitution of India. The Inspectress of School could not have appointed 11 persons and in fact more of them alike petitioners no. 2 and 3 on the post of Laboratory Assistant cum Workshop Assistant without advertising those post in newspaper and also following the prescribed procedure of selection and observing the Government Rules of roaster and reservation in fresh appointment. A direct appointment made from open market without following the mandate of Article 14 is itself 8 nullity in the eye of law and therefore, there was no question of the petitioners to be reinstated in service only on the basis of reinstatement of Arun Kumar Tiwari who as discussed above was holding the post of Clerk and whose case was entirely different as has been also explained in the order of his reinstatement itself. Thus, for these reasons recorded above this Court does not find any merit in this writ application. It is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/