IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.199 of 2005 THE STATE OF BIHAR & ORS Versus SHAILENDRA KUMAR SINGH ----------- For the appellant : Mr.A.Arshad Alam, S.C.IV Mrs.Anjum Perween,Adv.J.C.to S.C.IV. For the Respondent :Mr.Rajendra Prasad Singh,Sr.Adv. Mr.Sunil Kumar Singh, Mr.Niranjan Kumar Singh,Advocates. 8. 7.5.2008 On 12th June 2005, the writ-petitioner- respondent was appointed on the post of a clerk, a Class-III post. By an order dated 8th December 2000, the said appointment was cancelled on the ground that the appointment was an illegal appointment. In the said order it was not indicated why the appointment was illegal. However, the order of termination dated 8th December 2000 was stayed by the employer. Soon thereafter a notice to show cause was issued to the petitioner calling upon him to show cause why his appointment should not be cancelled on the ground that the appointment was an illegal appointment. The notice did not indicate why it was being contended that the appointment given to the writ-petitioner-respondent was an illegal appointment. In his show cause, the writ-petitioner-respondent brought on record that the vacancy was advertised when applications were invited for filling up such vacancies. It was contended that at the same time Employment Exchange was approached for 2 sponsoring candidates for filling up the said vacancies. It was stated that the name of the writ-petitioner-respondent was sponsored by the Employment Exchange whereupon he was invited to participate in the selection process and subsequent thereto he was appointed. The writ-petitioner-respondent contended that in such view of the matter, it cannot be said that the appointment as was given to him was an illegal appointment. Upon receipt of the show cause, the order impugned in the writ petition was passed and thereby the appointment of the writ-petitioner-respondent was cancelled on the ground that the appointment was illegal. The impugned order did not indicate as to why in the circumstances mentioned in the show cause, the appointment was illegal. The writ- petitioner-respondent was, thus, constrained to approach this Court in its writ jurisdiction to challenge the impugned order canceling his appointment. In the counter affidavit filed to the writ petition for the first time it was disclosed that the appointment of the petitioner in the post was in excess of the vacancy available for the category to which the petitioner belonged. In addition to the said ground, many other grounds were taken, namely, that the appointment was given by the In- 3 charge Regional Deputy Director of Education. Before us it was contended that the In-charge or officiating Deputy Director of Education did not have power to appoint. It was submitted that an In-charge or officiating person does not have all the authority of the post to which he has been appointed as In- charge or is officiating. We were, however, not shown any Rule or regulation or direction or circular to that effect. In the common parlance, a person appointed to a post in officiating capacity assumes the responsibility of discharging all duties and functions attached to the post and, accordingly, he should be deemed to have been authorized to do all functions attached to the post. Admittedly, no attempt was made in the counter affidavit to establish that, in fact, the appointment of the petitioner was beyond the quota of vacancy available for the category to which he belonged. Neither 50 point roster, nor the 100 point roster or any other material was brought on record to establish that, in fact, the appointment was beyond quota. However, a matter of similar nature having been dealt with first by a single Judge and then by a Division Bench of this Court in a writ petition registered as C.W.J.C.No. 5003 of 1999 4 (Ravndra Kumar Tiwary Vs. State of Bihar and others) in favour of an employee whose appointment was also terminated in the similar fashion on the plea that the appointment was beyond the quota reserved for the category to which the employee concerned belonged, appellant approached the Hon’ble Supreme Court by filing a Special Leave Petition which was not entertained. In such view of the mater, the judgment and order under appeal has been passed by a learned single Judge of this Court allowing the writ petition and quashing the order by which the appointment of the petitioner was cancelled on the ground that the appointment was an illegal appointment. For what we have stated above, we find no reason to interfere with the order impugned. The appeal fails and is, accordingly, dismissed. Jay/ (Barin Ghosh,J) (C.M.Prasad,J)