IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2546 of 2006 1. NIROJ KUMAR, SON OF SHRI KRISHNA MURARI SINGH, RESIDENT OF VILLAGE – BALUA, P.O. KANSADIRA, P.S. DORIGANJ, DISTRICT – CHAPRA. 2. JITENDRA KUMAR SINGH, SON OF SHRI RAM BISWAS, RESIDENT OF VILLAGE – UMDAH, P.O. FOLULI, P.S. CHAPRA MUFFASIL, DISTRICT – CHAPRA. ……………. PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, CHAPRA. 4. THE DEPUTY SUPERINTENDENT OF EDUCATION, CHAPRA. 5. THE DEPUTY SUPERINTENDENT OF EUDCATION, SIWAN. ……………… RESPONDENTS. With CWJC No.14774 of 2004 1. NIROJ KUMAR, SON OF SHRI KRISHNA MURARI SINGH, RESIDENT OF VILLAGE – BALUA, P.O. KANSADIRA, P.S. DORIGANJ, DISTRICT – CHJAPRA. 2. JITENDRA KUMAR SINGH, SON OF SHRI RAM BISWAS SINGH, RESIDENT OF VILLAGE UMDHA, P.O. FAKULI, P.S. CHAPRA MUFASSIL, DISTRICT – CHAPRA. ……………. PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3. THE DEPUTY DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 4. THE REGIONAL DEPUTY DIRECTOR OF EUDCATION, SARAN. 5. THE HEADMASTER, SARVIDAY HIGH SCHOOL, BANGRA, CHAPRA, SARAN. ……………. RESPONDENTS. FOR THE PETITIONERS : - MR. RAM SURESH RAI, SR. ADV. MR. SHARAD KR. SINHA, ADV. MR. AMIT KUMAR ANAND, ADV. FOR THE RESPONDENTS: - MR. PRABHAT KUMAR SINGH, AC TO GA 1 MR. AMANULLAH, G.A. 4. ----------- 03/ 25.02.2011 CWJC No. 14774 of 2004 & 2546 of 2006 Niroj Kumar and Jitendra Kumar Singh are petitioners in both the writ applications. In CWJC No. 14774 of 2004 prayer of the petitioners is for directing the respondents to pay their current salary as well as arrears of salary, which have not been paid to them since 2 June, 2000. In CWJC No. 2546 of 2006 prayer of the petitioners is for quashing of the order dated 2.2.2006 contained in Memo No. 146 issued in the signature of Director, Secondary, Bihar, Patna, whereby the petitioners have been terminated from their service. Further prayer of the petitioners is for directing the respondent-authorities to reinstate them in service and not to disturb them from discharging their duties during the pendency of the writ application. Since the petitioners are same and the reliefs prayed in both the writ applications are interlinked, they are being taken up together for hearing and disposed of by a common order. The case as disclosed in the writ application is that petitioner no. 1 having I.A. qualification and petitioner no. 2 being matriculate were enrolled with Employment Exchange, Chapra vide Registration No. BC-8705/90 dated 6.12.1990 and Registration No. 8650/90 dated 7.5.1990 respectively. In the office of District Superintendent of Education, Saran several posts of Clerks were vacant, as such the D.S.E., Saran requested the R.D.D.E., Saran at Chapra to take steps for appointment of Clerks for smooth functioning of his 3 office. R.D.D.E. called for the names of eligible candidates from Employment Exchange, Chapra and a local advertisement was also made on the notice Board. The names of petitioners along with others were forwarded for purposes of appointment by the Employment Exchange. Interview letters were issued to the candidates. The Director, Secondary Education vide letter no. 103 and 106 dated 22.3.19984 directed for holding of the meeting of the Divisional Establishment Committee for the purposes of making appointment. The Divisional Establishment Committee in its meeting dated 15.4.1994 decided to appoint the petitioners and others on the vacant post of Clerks. Petitioner no. 1 was appointed on the sanctioned vacant post of Clerk vide memo no. 3029 dated 27.6.1994 of R.D.D.E., Chapra and petitioner no. 2 was appointed on the sanctioned vacant post of Clerk vide memo no. 3028 dated 27.6.1994 of the R.D.D.E. It has also been stated that R.D.D.E., Saran Division vide letter no. 83 dated 12.9.1994 had informed the Director, Secondary Education that roaster policy has been adhered to while making appointment of Clerks. The appointment of 4 petitioners was also confirmed and information regarding their appointment was also given to Treasury Officer, Siwan. Payment of salary of the petitioners was stopped with effect from 1995 despite the fact that they were satisfactorily discharging their duties, as such they moved before the High Court by filing CWJC No. 9937 of 1997. By order dated 10.3.1998 a direction was issued in the writ application to respondents for making payment of salary to the petitioners, if they had worked and the petitioners were subsequently paid their salary. Petitioners, thereafter, were transferred to Sarvodaya High School, Bangra vide memo no. 1774 dated 23.11.1998 issued by the R.D.D.E. on the vacant post of Clerk. They joined on their transferred place on 26.11.1998. The petitioner subsequently came to know that vide order contained in memo no. 1367 dated 30.11.1998 the Director, Secondary Education has held that 56 appointments made in the department were illegal, which also included the appointment of the petitioners. Steps were taken to terminate the services of all such appointees including the petitioners without any opportunity to show cause. Services of the petitioners 5 were terminated by the order contained in memo no. 10 dated 30.1.1999 and memo no. 12 dated 30.1.1999 respectively issued by the R.D.D.E. without any show cause notice. Again petitioners moved before the High Court by filing CWJC No. 2483 of 1999, which were allowed. The termination order was quashed as it had been issued without any show cause. Thereafter, show cause notice was issued to the petitioners as to why they should not be terminated from their services as they were illegally appointed. Considering the show cause of the petitioners the Director, Secondary Education vide memo no. 819 and memo no. 829 dated 10.7.2000 terminated the services of both the petitioners alleging that their appointments had been made without following the prescribed procedure for appointment on such posts. Both these orders were challenged by filing CWJC No. 7025 of 2000 and both the termination orders were quashed. The matter was remanded to the Director, Secondary Education for fresh consideration of the case of the petitioners in accordance with law. In pursuance of the direction of the High Court the petitioners gave their joining on 1.12.2000 in the school and started working. 6 The Director, Secondary Education fixed a date of hearing on 24.2.2001 and thereafter several dates were fixed and finally the matter was heard on 31.8.2001. The R.D.D.E. vide his letter no.1274 dated 31.8.2001 supported the case of the petitioners and also requested for a direction in the matter of payment of salary to these petitioners, but vide order impugned dated 2.2.2006 contained in memo no. 146 services of the petitioners were finally terminated. Both the petitioners have challenged the order of termination on the ground that their appointments were not illegal rather they were appointed following the statutory procedure as provided under the Rules for appointment of Ministerial staff in the District offices of the Education Department. It has also been submitted that termination of their appointment on the ground that their appointments were made without following the provisions of circular dated 3.12.1980 issued by the Personnel and Administrative Reforms Department, Govt. of Bihar is not sustainable. In the circular it is provided that the posts would be advertised at the level of the District Magistrate and a committee headed by 7 him will prepare a merit list from the applications received in response to the advertisement and vacancies will be filled up from that panel on the basis of the recommendations made by the District Magistrate. The Director, was of the view that since in the case of petitioners, this procedure was not followed the appointment of the petitioners was an illegal appointment. Counsel appearing for the petitioners has placed reliance on different decisions of this Court in identical matters, such as CWJC No. 6609 of 2000 and analogous cases (Annexure-11) and CWJC No. 1481 of 2001 (Annexure-15). In these cases it has been held that there being a statutory Rule for appointment of Ministerial staff in the district offices of the Education Department, only requirement was to follow that Rule in appointing Ministerial staff. So far circular of the Personnel and Administrative Reforms Department is concerned, it has application in appointment of other departments at district level. At the divisional level when the appointment was to be made, the Rule provided that R.D.D.E. will preside over the committee and on the 8 recommendation of the Divisional Establishment Committee appointment will be made. In the case of petitioners there was no reason for holding that appointment of the petitioners were devoid of the procedure being followed in such appointments. I find that different decisions, which have been annexed by the petitioners, are identical to the facts of the case of the petitioners. In the counter affidavit filed on behalf of State the main thrust is on the circular of the Personnel and Administrative Reforms Department, Govt. of Bihar’s Resolution No. 5939 dated 18.6.1993 is that the Class III employees in the offices of the district or in the field offices has to be made by the Selection Committee constituted that the concerned District Magistrate as Chairman. It has also been stated that regarding service conditions for appointment in Education department at the divisional level employees, Govt. notification no. 3435 dated 13.08.1974 was framed, wherein it has clearly been provided that for appointing temporary and permanent employees the criteria and norms determined by the State Govt. time to time has to be followed and 9 only on the recommendation of the committee constituted under clause 7 of the aforesaid notification, appointment shall be made. The statement made in para 15 of the counter affidavit, regarding procedure for appointment, was duly followed in the case of the petitioners. Both the petitioners were appointment by the Selection Committee constituted under clause 7 of the notification no. 3435 dated 30.8.1974, as such there was no reason for holding that appointment of the petitioners were illegal, when their appointments were already confirmed, service book opened and several years they have discharged their duties to the satisfaction of their higher authorities. The earlier writ applications decided in favour of other writ petitioners have been annexed with the writ application. I do not find any reason, for coming to this conclusion that case of the petitioners is different from the cases, which has been decided, and annexed as Annexure –11 and 15 to the writ application. Accordingly, the impugned order of termination contained in memo no. 146 dated 2.2.2006 (Annexure -17) is quashed. CWJC No. 2546 of 2006 is 10 allowed. The respondents are directed to reinstate the petitioners on their posts with effect from the date of their termination with all consequential benefits. Counsel for the petitioners has made submission that despite issuance of the termination order the petitioners continued with their work and continuously they have discharged their duties. In support of this fact documents have been annexed as Annexure -15 and 16 series of CWJC No. 14774 of 2004. For payment of salary for the period the petitioners were terminated, till the date of reinstatement, documents annexed as Annexure -15 and 16 series, will be examined by the Respondents. If it is found to be correct, they will be paid their salary for this period. CWJC No. 14774 of 2004 is also allowed. The Respondents are directed to make payment of petitioners’ salary since June, 2000 till the date of issuance of termination order, which is Annexure-17 of CWJC No. 2546 of 2006. DKS/ (Mridula Mishra, J.)