IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6670 of 2011 Gauri Shankar Yadav son of Late Shri Mukti Yadav, R/o village Marachi Uzagar, P.S. Hasanpur, Samastipur …Petitioner Versus 1. The State of Bihar through the Secretary, Urban Development Department, Govt. of Bihar, Patna 2. The Secretary, Urban Development Department, Govt. of Bihar, Patna 3. The District Magistrate, Samastipur 4. Sub Divisional Officer, Rosera, Sub Division, Samastipur 5. Executive Officer cum Block Development Officer, Notified Area Committee, Hasanpur, Samastipur 6. B.D.O. Bithan Block, Samastipur …Respondents For the petitioner :Mr. Ranjeet Kumar Pandey For the State :Mr. Praveen Kumar Verma, AC to SC 26 ----------- 04. 18.08.2011 Petitioner claims to have been engaged as Clerk by the erstwhile Notified Area Committee, Hasanpur. According to him, by order dated 15.9.1989 (Annexure-3), he was found eligible for engagement on daily wage basis and, thus, appointed on temporary basis as Clerk under the orders of Executive Officer of Notified Area Committee, Hasanpur. By order dated 8.7.1992, he was confirmed on the post subject to the condition that he shall not be paid any salary until allotment from the government received by the Notified Area Committee. In the said letter, the petitioner has been described as Accountant-cum- Head Assistant. By yet another order dated 13.11.1995 (Annexure-5), he was deputed in the office of Block Development Officer, Bithan in the public interest. The said order declares that petitioner is not on the pay rolls of the Notified Area Committee and his salary/wages shall be paid on 2 receiving grant from the government in the department of Urban Development. According to him, he continued on the said post. In the meanwhile, the Notified Area Committee, Hasanpur was dissolved by the Government by a notification dated 15.9.2001 (Annexure-6) as the said Notified Area Committee did not qualify for such status. The Respondent-Block Development Officer in view of the notification of the Government annulling/dissolving the Notified Area Committee, wrote a letter dated 12.01.2002 addressed to the District Magistrate, Samastipur (Annexure-7) seeking his permission to terminate/disengage the services of the petitioner. By another order contained in letter no. 34 dated 21.01.2002 his continuance in Bithan Block was also terminated. The petitioner in these circumstances, made a representation before the Respondent-District Magistrate for payment of salary/wages for the period he discharged the duty in erstwhile Notified Area Committee as well as in the Block office under orders of the Respondent-Block Development Officer. Since no action was taken thereon, he preferred a writ petition being CWJC No.264 of 2003 wherein a grievance was made with regard to payment of arrears of salary. According to him, he had worked for about 13 years from 15.9.1989 to 12.01.2002 but without any salary. The order dated 21.01.2002 (Annexure-8) passed by the Respondent-Block Development Officer was also impugned. This Court by a proceeding dated 20.08.2008 passed in CWJC No. 264 of 2003 (Annexure-10) rejecting the second contention 3 of the petitioner wherein the sustainability of the order passed by the Block Development Officer (Annexure-8) was questioned, passed an order directing the respondent(s) concerned to pay the salary including the arrears of salary for the period for which the petitioner claimed to have worked. Operative portion of the said order of this Court reads as under: “This Court is not in a position to decide the exact lawful dues of the petitioner towards arrears of salary. Since nobody appears on behalf of the State it would not be proper to go into further details of arrears of salary. However, for the period prior to petitioner‟s deputation his alary should be paid by the concerned Notified Area Committee, Hasanpur in accordance with law and for the period petitioner was on deputation in the Block office at Bithan his dues of salary should be paid by the State Government in accordance with law. The concerned authorities will be entitled to work out the arrears after deducting the amount which has been paid to the petitioner during the pendency of the writ petition. The arrears of salary payable for the period petitioner was on deputation in Block Office at Bithan must be paid within four months from the date of production/communication of a copy of this order before the Collector, Samastipur. So far as dues of Notified Area Committee is concerned, the same shall be paid by its Executive Officer, respondent no.4 within the same period. If the notified area has been dissolved then whosoever is incharge of its asset and liability shall pay the lawful dues of the petitioner in accordance with law within the aforesaid period of four months from the date of production/communication of a copy of this order.” It is the stand of the petitioner that in the light of the said order, the respondents paid him due wages/salary for the period he worked as Clerk and subsequently as Accountant-cum-Head Assistant. The grievance of the petitioner is that after the order 4 withdrawing deputation in Block as contained in Annexure-8, he submitted his joining in the Notified Area Committee (since dissolved) but he was not allowed to join. Two sets of counter affidavit(s) have been filed. The counter affidavit filed on behalf of respondent no.3 has been affirmed by the Sr. Deputy Collector, General, Section, Samastipur, whereas the second counter affidavit filed on behalf of respondents 1 and 2 has been affirmed by the Deputy Secretary-cum-Director, Urban Development Department, Govt. of Bihar, Patna. According to the respondents, the petitioner was engaged/retained in wholly illegal and irregular manner. The said retention of the petitioner was contrary to Rule 4 of the Municipal Officer and Servants(appointment, duties, discipline and appeal) Rules. There was no advertisement issued by the erstwhile Notified Area Committee for his engagement/appointment as Clerk. His engagement was based on oral instruction. In counter affidavit filed on behalf of respondents 1 and 2, it has been reiterated that the initial engagement/appointment of the petitioner was thoroughly illegal and contrary to the rules framed in this regard. No procedure worth the name for making regular appointment was followed. The petitioner claims to have been engaged initially as Clerk and subsequently promoted to discharge the duty of the post of Principal Assistant-cum-Accountant on purely on temporary basis without pay. These orders were passed by the then Block Development Officer, namely, Sri Madan Mohan Dev, who was 5 also functioning as the Executive officer of the then Notified Area Committee, Hasanpur(since dissolved). The then Sub Divisional Officer, Rosera, namely Sri Ram Biraji Thakur as also the subsequent Block Development Officer, namely, Sri Baidynath Mahto who also functioned as the Executive officer, Notified Area Committee Hasanpur(since dissolved) had active role in engaging and continuing on the rolls but without pay in blatant disregard of the procedure of appointment. The aforesaid officers illegally and clandestinely permitted the petitioner to work initially under the Notified Area Committee and subsequently in the Block in question seemingly under an order of the Block Development Officer who was also functioning as the Executive Officer of the Notified Area Committee (since dissolved). It is the stand of the respondents that above said officers were not the competent authorities to appoint the petitioner. The State is not bound by the illegal acts of its officials. In paragraph 9 of the counter affidavit, the respondents have stated as under: “That after getting knowledge with regard to illegal and fraudulent appointment of the petitioner in connivance with the three officers namely Sri Madan Mohan Dev, Sri Ram Biraji Thakur and Sri Baidyanath Mahto a departmental proceeding has been initiated against all three responsible officer and memo of charges vide Praptra „ka‟ has already been issued by the order of the District Magistrate Samastipur vide his letter no.2143 dated 22.09.2010. Therefore it is crystal clear that no regularization or reinstatement in service of the petitioner is possible on the ground of his forged and illegal appointment as prayed in para 1 in the instant writ application.” 6 The respondents have stated that after dissolution of the Notified Area Committee by a notification issued by the Government in the Department of Urban Development, the erstwhile Notified Area Committee has been converted into Gram Panchayat since 18.8.2001 and, as such, the claim of the petitioner seeking regularization and/or permission to join the said Notified Area Committee or the successor body thereof is unsustainable in law. Under these circumstances, the order contained in Annexure-1 was passed which is impugned in the present writ petition. Having heard the parties and on perusal of the writ petition, it appears that his initial engagement as Clerk on daily wages basis without pay was made by the Executive officer of the then Notified Area Committee in a wholly illegal manner. The petitioner has not pleaded in the writ application that any procedure for selection was made preceding the order contained in Annexure-3. It appears that subsequently he was allowed to discharge the duty of Principal Assistant-cum-Accountant. The said order is not on record. However from Annexure-4, it appears that the Respondent S.D.O. confirmed his appointment/engagement with condition that payment shall be made only after receipt of the allotment/fund. Under what circumstances and by what order the petitioner was allowed to discharge duties of the Principal Assistant-cum-Account is not known to the Court. The respondents have taken a firm stand that his initial engagement on daily wages basis as Clerk and 7 subsequent confirmation by the officers were fraudulent acts of the officers in connivance with each other. They have also stated in categorical terms that the provisions contained in the Rule governing appointment by the said body (NAC) were not complied with. This Court, therefore, has no hesitation in holding that the petitioner was inducted in the then NAC through backdoor. No process or procedure of selection/appointment in accordance with the rules was/were gone into. Any order passed by this court in favour of the petitioner would, therefore, be contrary to the provision of the Act and the Constitution. It further appears that the respondents are already proceeding departmentally against those officers who connived in retaining the petitioner by issuing orders contrary to the provisions of Rule. In view of aforesaid facts appearing from record, this Court is not inclined to invoke its extra-ordinary and high prerogative writ jurisdiction to quash the order contained in Annexure-1. The application is dismissed. PKJ/hr ( Kishore K. Mandal )