CIVIL WRIT JURISDICTION CASE No.11710 OF 1996 In the matter of an application under Article 226 of the Constitution of India. ---------- LALAN SINGH-----------------------(Appellant) Versus THE STATE OF BIHAR & ORS----------(Respondents) ----------- For The Petitioner: Mr. Praveen Kumar, Advocate For The Respondents:Mr. Pankaj Kumar Sinha, J.C to S.C.3 ------------ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Trripathi,J. Heard learned counsel for both sides. Petitioner was appointed as a Dafadar by virtue of D.O. No. 4 of 1982. This order dated 24.8.1982 was issued by Dy. Superintendent of Police, Aurangabad. The initial appointment was for a period six months on probation but it seems that the petitioner continued to work on that post uninterruptedly. But despite working under the respondent no salary seems to have been paid to him. Petitioner, therefore, approached this Court for a direction upon the respondents for payment of salary. Vide order dated 22.7.1996 passed in CWJC No. 10378 of 1995 the respondents were directed to pay the salary of the petitioner for the period he had worked. Subsequently by a decision dated 30.9.96 contained in annexure-6 the petitioner was removed from service by the order passed by the District Magistrate, Aurangabad. The reason indicated in his order is that there cannot be two persons working on the one post in the same circle. This order is under challenge in the present writ application. - 2 - Learned counsel for the petitioner submits that the order of termination could not be passed against him without any proper enquiry or giving him an opportunity of hearing and in absence of the same the impugned order is an illegal order. The respondents however submit in their counter affidavit that the petitioner initially was appointed for six months on probation but at no point of time he was confirmed on the said post. He continued on the said post in that capacity and problem therefore arose for payment of salary because it was not a substantive appointment. Only by virtue of the order passed by the Hon’ble High Court petitioner no doubt was paid his salary. But in view of the given facts two persons cannot be accommodated on one post and beget salary so the petitioner was ordered to be removed. Learned counsel for the petitioner thereafter submits that there is presumption that the petitioner had been confirmed after completing the period of his probation and a kind of right had accrued to him because of the above fact. But the Court has certain reservation in justifying and accepting this submission in absence of any material to show that the petitioner was ever confirmed and was finally treated as a permanent employee under the respondents. In fact, the position seems to be otherwise and under the circumstance the petitioner has been removed from service because there was no available post on which he could be accommodated. - 3 - Learned counsel for the petitioner however submits that one Yugesh Singh who was working on the post due to whom the petitioner had to be removed has since superannuated on 1.7.1998 and the said post still continues to be vacant and in this regard the petitioner has already approached to respondent, the District Magistrate, Aurangabad to consider his case. The Court at the maximum can give liberty to petitioner to approach the respondents to consider his case for appointment if the post is available and vacant and the petitioner is still eligible under the rules to be considered for appointment as a Dafadar. His case may be considered sympathetically keeping in mind his past experience and work he had rendered in the said circle if there is no bar to his upper age and eligibility for being considered to the post of Dafadar. This writ application stands disposed of with the aforesaid liberty. In so far as the order contained in annexure-6 is concerned the same is not interfered with. (Ajay Kumar Tripathi ,J.) Patna High Court, Patna Dated the 21st August,2008 NAFR/RPS/Sr.Secy.