IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.287 of 2001 BISHRAM SINGH Versus THE STATE OF BIHAR & ORS ----------- CWJC No.8333 of 1998 SATISH KUMAR SINGH & ORS Versus THE STATE OF BIHAR & ORS ----------- For the Petitioners: Mr. Manoj Priyadarshi, Advocate Mr. Jharkhandi Upadhyay,Advocate For the State : Mr. Ranjan Kumar, JC to AAG 9 ------- 4. 13.08.2008 Heard the learned Counsel for the petitioners and the learned Counsel for the State. The petitioner in the former case was appointed by the Special Land Acquisition officer, Tenughat, Hazaribagh on the post of Amin on 14.9.1987 on ad-hoc basis and temporarily as a working arrangement liable to termination at any time which was extended at intervals. Similarly the petitioners in the later case were appointed between 1986 to 1990 on different posts such as Amin, Chainman and Godown Incharge in the Land Acquisition and Rehabilitation Section of Water Resources Department, Government of Bihar. They continued to work as such till the order of termination dated 11.12.2000 came to be passed assailed in I.A. No. 480 of 2001 in CWJC No. 287 of 2001 while in CWJC No. 8333 of 1998, the impugned order of termination is dated 4.6.1998. On facts considering the matter, the Interlocutory Application is allowed and the challenge to the order of termination in CWJC no. 287 of 2001 shall form part of the pleadings in the original writ application. 2 The order of termination states that the Special Land Acquisition Officer had been vested with the power to make appointment by government letter no. 53 dated 18.2.1978 which was withdrawn by letter no. 7836 dated 2.12.1983 and therefore the appointment of the petitioners by the Special Land Acquisition Officer was illegal. Learned Counsel for the petitioners submitted that subsequently the power of appointment was vested in the Director who by his order dated 13.5.1988 extended the duration of the appointments indefinitely and sine-die. Whatever illegality may have been there in the appointment as alleged, now acquired the shape of irregularities only. The petitioners having served for inordinately long years could not be thrown out unceremoniously at this stage in the manner done having consequential effect on their family also. Reliance is placed on a Division Bench order of this Court in LPA No. 270 of 2000 dated 7.11.2000 (State of Bihar vs. Sunil Kumar Singh) at Annexure 11. Counsel for the State urged that the initial appointment itself being illegal the question of any approval or consent to the same by the appointing authority at a subsequent stage simply did not arise. No procedures for appointment by open selection were followed. Mere long continuance shall not give any right in the appointment originally illegal. He relied upon two Division Bench decisions of this Court reported in 2003(2) PLJR 27 (The State of Bihar Vs Prashant Kumar Sharma & ors.) and 2008(3) PLJR 363, (The State of Bihar Vrs Sheoi Shankar & anr). It is pointed out from the latter judgement that the earlier judgement in the case of Prashant Kumar Sharma (Supra) traveled to the Supreme Court which declined to the interference with the same. 3 This Court on bare perusal of the letter of appointment and the terminology used therein as read in conjunction with the pleadings in the writ petition is satisfied that not only was the appointment made by an authority not competent to do so but that no procedures were followed in the appointment with regard to open competitive merit selection. If the initial appointment be illegal no validity could have been conferred upon the same by the Director. The law stands settled that if the initial action be invalid all subsequent actions are invalid and ratification cannot cure the defect. Likewise mere long continuance in an otherwise illegal appointment cannot urge the ground of equity. The submission that the consequent approval of the Director allegedly, the illegal nature of appointment assumed the shape of irregularities only, has to be rejected. The judgement relied by the Counsel for the petitioners in the case of Sunil Kumar Singh (Supra) does not consider or deal with the initial nature of the appointment etc. and only proceeds on the premise of a tacit approval by the Director. In absence of any discussion contained therein this Court finds it difficult to follow the same as a binding precedent in view of the later judgments relied upon by the Counsel for the respondents. In the case of Prashant Kumar Sharma (Supra) category „C‟ of the categorization made by the Division Bench pertained to cases such as the present. The objection of the State was similar to that raised presently. The defence by the respondents was the same as has been urged presently. The issue of long continuance and equity were also considered therein. The discussion with regard to them falls for consideration at Para 14 of the judgement. The Division Bench has 4 arrived at the conclusion at Para 35 that neither equity nor estoppel would operate in favour of the persons like the present petitioner and neither will mercy operate in their favour. The appeals were allowed. The matter then appears to have traveled to the Apex Court as noticed in the case of Sheo Shankar & anr (Supra) considered by another Division Bench where similar issues as presently raised fell for consideration and which in turn relied upon the former judgement. The judgement in the case of Prashant Kumar Sharma (Supra) relied upon by the Counsel for the respondents has been noticed at Para 5 of the later judgement in the case of Sheo Shankar & anr. (Supra), even approved by the Supreme Court, in the following terms:- “5. According to the writ petition, the sole petitioner (the sole respondent herein) was similarly appointed by the Rehabilitation Officer as Chainman, a Class IV post in the pay scale of Rs. 350-425/-, on purely ad hoc basis, as a stop- gap arrangement, and could be dispensed with without prior information by order dated 24.10.1983 (Annexure 1), issued under the signature of the Special Land Acquisition Officer, Irrigation Project, Bhagalpur. He was similarly given extension of service. Under the orders of the Director, similar show-cause notice was issued to him. On a consideration of the materials on record including the cause shown by him, his services were also dispensed with by identical order and for identical reason leading to CWJC No. 7223 of 2001. Nine writ petitions including the present CWJC No. 7223 of 2001 have been allowed by a common order dated 10.1.2002. The learned Single Judge has held that the petitioner had continued for more than 10 years and was getting a scale. He has functioned satisfactorily and was not guilty of any misrepresentation or the like. The learned Single Judge has 5 further observed that “…Even assuming that there were certain irregularities in engagement of the petitioners on temporary basis, that could be rectified immediately after their appointment/engagement but it appears that the period of engagement was extended from time to time giving legitimate expectations to the petitioners that their services have been regularized….” Aggrieved by this order, the State of Bihar preferred the present appeal, as well as either other appeals which have been disposed of by a common judgment dated 29.1.2003, passed by a Division Bench of this Court, which has since been reported in 2003(2) PLJR 27 (The State of Bihar vs. Prashant Kumar Sharma). It is further relevant to state that the writ petitioners of those eight writ petitions preferred Civil Appeal No. 5682-5684 of 2004 (Siyaram Chaudhary & others Vs State of Bihar and others) which has been dismissed by order dated 11.7.2006, passed by the Supreme Court of India. Copy of the order is on record and is reproduced hereinbelow for the facility of quick reference:- “In view of the recent decision of the Constitution Bench in Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors. (2006) 4 SCC 1, we are of the opinion that there is no merit in these appeals. These appeals are dismissed accordingly.” Sd/- S.B.Sinha Sd/- Dalveer Bhandari.” In the light of the discussion as aforesaid this Court arrives at the conclusion that there is no merit in these writ applications calling for interference with the impugned order of termination. The writ applications are dismissed. Snkumar/- (Navin Sinha,J.) 6