IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10020 of 2001 RANJAN KUMAR SAH Versus THE STATE OF BIHAR & ORS ----------- 5 16.09.2008 Heard Learned counsel for the petitioner and the State. The petitioner, who was appointed as Peon, is aggrieved by his order of termination dated 30.6.2001 issued by the Regional Deputy Director, Bhagalpur Division, Bhagalpur. On the own showing of the petitioner, his letter of appointment on the post of Peon dated 30.4.1983 raises more question than it answers. It is apparent from a bare reading of the letter of appointment itself that it was made without following any procedures, as a measure of favour doled out to him, that too for a limited period of three months. The person making the appointment was fully conscious of the illegality of the appointment being made as otherwise there was no justification to make a limited appointment for three months, if there was a sanctioned vacancy and an advertisement had been made. In this manner, after the petitioner was appointed, the period of three months having expired an exercise started to surreptitiously bring him in the regular stream. He continued in service from 30.4.1983 till the issuance of the impugned order dated 30.6.2001. Now, equity is being pressed to assail the order of termination for reason of long continuance. The petitioner did not force his way into the office, but somebody invited him. This was obviously for a consideration. - 2 - This aspect of the matter that such appointments are made for considerations including money has been adequately noticed by the Supreme Court in a judgment reported in A.I.R. 1992 S.C. 789 wherein at paragraph 15 the Court observed s follows: “Para-15: ………………… The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years……………….” This Court has no hesitation in holding that it was not only the person making the initial appointment, who acted illegally for personal gain but also those who illegally continued to take service of the petitioner in a surreptitious manner by illegal extensions till his termination and are equally answerable The counter affidavit of the respondents raises much issue with regard to the illegality in the appointment of the petitioner. However, it is completely silent with regard to the actions taken against those who made the illegal appointment for a consideration whether it be the initial appointing authority or - 3 - those who continued to take services from him by extension of such illegal appointment. This Court on the facts of the case finds it very difficult to grant any relief to the petitioner. It stands settled by the Supreme Court that regularization is not a mode of appointment. No validity can therefore be conferred on a per se illegal act. Regularization pre supposes only minor omissions in what was otherwise in accordance with law. Additionally, it has also been held by the Apex Court that continuance even for years in service in pursuance of an appointment per se illegal is of no avail and neither can considerations of equity or sympathy be invoked. In 2008 (7) SCC 153 ( Pramod Kumar vrs. U.P. Secondary Education Services Commission and Ors.), the person was appointed on 29.11.1988. He was terminated on 12.2.1997. The Supreme Court declined to interfere on grounds of the period of service rendered. Like wise in 2005 (4) SCC 209 (Vinod Kumar Gupta and Ors Vrs. Ramashray Mahoto and Ors) even 15 years of service was not considered sufficient to save a per se illegal appointment. This Court, therefore, directs the Commissioner- cum-Secretary, Personnel and Administrative Reforms Department, Government of Bihar to hold an inquiry with regard to personnel who made the appointment of the petitioner and those who continued to avail his services and passed orders for extension of his service of initial three months. - 4 - Let such inquiry be concluded within a period of two months from today. Based on such inquiry report, the Commissioner-cum-Secretary, Personnel and Administrative Reforms Department, Government of Bihar is directed to forward the same to the State Government, when the State Government is directed to initiate appropriate action whether by way of institution of a first information report or departmental proceeding depending upon whether the personnel be in service or have retired. The State Government shall also proceed to recover the wages paid to the petitioner from the salary/pension of such delinquent. Let appropriate affidavit in that regard be filed by the Chief Secretary of the State of Bihar when the affidavit must also enclose the necessary communications sent to the Accountant General with regard to the deductions made from the delinquent. The writ application is dismissed. This order has been passed in presence of counsel of the State. Put up for perusal of the affidavit of compliance after four months. pkj (Navin Sinha, J)