IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5109 of 2009 VIJAY NARAYAN SINGH & ORS Versus THE STATE OF BIHAR & ORS ----------- 2. 22.04.2009 Heard learned Counsel for the petitioners and the learned Counsel for the State. It is the case of the petitioners that in pursuance of the advertisement on the notice board in 1981 inviting application for appointment on Class IIII and IV posts under the Filaria Control Programme the petitioners applied and they were appointed on temporary basis. Consequently vacancies were notified for regular appointment on 4.11.1981. A typed copy of the public advertisement is appended at Annexure 3. The petitioners came to be appointed after consideration of their candidature by a selection committee. Reliance for the purpose is placed on the communication dated 12.9.1983 referring to the appointments having been made by the Selection Committee. Nonetheless their services were terminated when they came to this Court in CWJC No. 7451 of 2003. On 25.8.2003 the order of termination was stayed by this Court. Subsequently the writ petition itself was placed before a Division Bench in pursuance of certain analogous matters on issue of wrong appointments pending before the Division Bench. The Division Bench disposed of a batch of analogous writ applications by referring the same to a three man committee for the purpose of enquiry with regard to the nature of appointment. In pursuance thereof the impugned order dated 7.3.2009/9.3.2009 has been passed. 2 Learned Counsel for the petitioners submits quite simply that the committee did not hear the petitioners and secondly that the impugned order is non-speaking in nature and assigns no reason of the nature of the illegality in the appointment found by the enquiry committee. Learned Counsel for the State urges from the record that it is only a communication that the committee had found their appointment to be illegal. The reason therefore can be gathered from the report of the committee. The petitioners are adversely affected by the impugned order. They challenge the order on the ground that they are not being told the reasons why the order has been passed and they have not been heard in the matter. The respondents contend that their ex-parte enquiry is in their file. The imputation is that they are not required to disclose the reason. An administrative order affecting a citizen adversely is required to be reasoned. The need for reasons becomes more important when an order is amenable to judicial review. It has been held that reasons are the link between the mind of the authority passing the order and the Court before which the order is assailed in judicial review. It ensures that the authority exercising the jurisdiction took into consideration all relevant materials and ignored the irrelevant materials. It satisfies the Court that irrelevant materials were not taken into consideration and that relevant materials were not ignored. In AIR 1990 SC 1984 on the duty to give reasons it has been held at Para 35 as follows:- 3 “35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi- judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and is application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our, opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” When an administrative order is passed, the order is tested on the basis of reasons mentioned in the order. It is not 4 open to the respondents to contend that they shall file counter affidavit to explain the order. Annexure 1 is the impugned order visiting the petitioners with consequences. They do not know what the reasons are or why they have been visited with adverse order. They are in the dark about what the ex-parte enquiry is. What is the nature of adverse material against them and whether it is correct and if they have an answer to the same. They have come to this Court with a grievance. The Court is unable to exercise judicial review because the order is non-speaking. The law stands well settled that an order of an authority has to be tested on recitals contained therein and it is not open to them to file counter affidavit explaining the order. If the impugned order was based on the report of a committee, all that the impugned order was required to recite was a brief extract of the findings of the committee along with a brief reference of the nature of materials in support of the same whereafter there may or may not have been occasion for this Court to interfere. The law on the aspect and the need to give reasons has been reiterated by the Courts time without number. If the respondents insist on passing orders contrary to law laid down by Courts, the Court has no option but to set aside the order. The impugned order dated 7.3.2009/9.3.2009 is accordingly set aside. In an illegal appointment there are always two players. One is appointed, the other appoints. One gives consideration the other receives consideration. Both are equally answerable. The law will not countenance selective action against those who 5 secured illegal appointment by giving leverage to the State to protect officers who made illegal appointments. In AIR 2005 SC 1 (Friends Colony Development Committee Vrs State of Orissa & ors)dealing with the foul acts of such official in context of rampant illegal construction the Supreme Court at Para 20 in the relevant extract has observed as follows:- ‟20……Though the local authority has the staffs consisting of Engineers and Inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they do not act or do not act promptly or do connive at such activities apparently for illegitimate considerations…..‟ At the same time in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance.‟ The Supreme Court while dealing with regard to such illegal acts of the officials who made hay in the sun shine must see cloudy days, in AIR 1996 SC 715 ( Delhi Development Authority Vrs Ski9pper Construction & anr.) at paragraph 6(1) has directed disciplinary proceeding against those in service and appropriate proceeding with regard to those who had retired in context of their pension and other terminal benefits in accordance with Rules. It was observed in Sub-para (7) as follows:- „(7) It is directed that no court or authority shall be competent to interdict or otherwise interfere with the disciplinary or other proceedings that may be taken 6 against the aforesaid authorities pursuant to this Order. Any further directions necessary in that behalf can be sought for from this Court. The disciplinary proceedings shall be commenced within three months from this date and shall be concluded within one year.‟ This Court therefore directs that if the respondents propose to visit the petitioners afresh in accordance with law of the consequences of the order of termination dated 7.3.2009/9.3.2009 they cannot act selectively in the matter. They are obliged to take into the ambit of enquiry those who appointed the petitioners and take appropriate action against them both under civil and criminal law whether they be in service or superannuated and only in that event can they proceed against the petitioners also. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)