IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16155 of 2006 Md.Parwez Akhtar Ansari s/o Md. Whaiduddin Ansari Resident of Mohalla-Nilkothi, P.O. and P.S. Dehri-onsone, District Rohtas. Versus 1. The State Of Bihar. 2. The Secretary, Department of Road Construction Govt. of Bihar, Patna. 3. The Superintending Engineer, Road Construction Department, Road Circle, Darbhanga. 4. The Executive Engineer, Road Construction Department, Road division, Begusarai. ----------- 4 30.06.2011 Heard the petitioner and the State. In this case the petitioner has challenged the order dated 14.08.2006 vide memo No. 1362 (Annexure-3)issued by the Superintending Engineer whereby the services of the petitioner as Junior Accounts Clerk, Road Division, Begusarai was illegally and arbitrarily terminated and further a direction be given to respondents to reinstate the petitioner in the service with all consequential benefits. The learned counsel for the petitioner has stated that the petitioner was appointed in accordance with law on the basis of decision of the Establishment Committee, Begusarai provisionally for a period of three months in the pay scale of Rs. 1200-1800/- and posted in the office of 2 respondent Executive Engineer as Lower Division Clerk(Accounts) vide office order dated 03.12.1994. The service of the petitioner was extended from time to time by different letters and ultimately vide office order dated 29.12.1995 containing in memo No. 1955 (Annexure-2 series), the service of the petitioner was regularized by the Superintending Engineer Road Construction Department, Circle, Darbhanga and vide office order dated 14.18.2006 containing in memo No. 1362 (Annexure-3) to the writ petition the service of the petitioner was terminated as it was found illegal. It appears from the said letter that the Establishment Committee vide letter dated 02.12.1994 appointed shri Sanjay Kumar Verma, Shri Baban Prasad Singh, Md. Pravej Akhtar Ansari on provisional basis for three months. Shri Sanjay Kumar Verma and Shri Baban Prasad Singh were working under the Jay Nagar Circle which was categorized by the Dy Secretary-cum-Chief Vigilance Officer, Road Construction Department vide letter No. 6342 dated 20.06.2006 and Personal & Administrative Reforms Department 3 Memo No. 1097 dated 02.01.1993 illegal and declared their appointment in service, not in accordance with law. It appears from the said letter, the office of Superintending Engineer vide Memo No. 2503 dated 03.12.1993 appointed Sri Md. Parvez Alam on provisional basis for three months which was extended from time to time. Thereafter vide Memo No. 1362 dated 14.08.2006 the service of Md. Parvez Alam was dispensed with as his appointment was found illegal. The petitioner has brought on record two documents before this Court, one is letter No. 1955 dated 29.12.1995 shows that service of the petitioner was regularized but another letter No. 1362 dated 14.08.2006 (Annexure-4) shows that his service was never regularized and his service along with others were terminated. Both the letters were issued by same authority i.e. Superintending Engineer, Road Construction Department, Road Circle, Darbhanga. The contention of the learned counsel for the petitioner is that his service was terminated without giving any show cause or explanation. Learned counsel has further 4 contended that his service, in view of several judgment of the Hon’ble Supreme Court as well as of this Court, was legal. He has placed reliance in the case of State of Karnataka & Ors Vs. M.L. Kesari & Ors’ reported in (2010) 9 SCC 2471 and he has also brought the attention of this Court on the Division Bench judgment of this Court vide L.P.A No. 230 of 211 (The State of Bihar versus Binay Kumar Singh). In the L.M Kesari (supra) the Court has held as follows. “The object behind the said direction in para 53 of Umadevi (3)1 is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3)1 was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 5 10-4-2006 [the date of decision in Umadevi 3)1] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi (3)1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi (3)1 as a one-time measure.” In L.M. Kesarai case the employees were appointed on daily wages basis and their services were utilized as typist and they continued for more than 15 years without the protection of any interim order of any Court or tribunal, on vacant posts. In that context the Supreme Court, while passing the order, relied upon decision of State of Karnataka versus Uma Devi(s) 2006(2) P.L.J.R. 363(S.C.) and directed that if they full fill the criteria laid down in para 53 they should be considered for regularization. The petitioner has also relied on the another judgment of Division Bench in L.P.A 6 No. 230 of 2011 (State of Bihave Vs. Vinjay Kumar Singh). In this case the petitioners were terminated from service which was set aside by this Court in writ petition vide C.W.J.C No. 7509 of 2009, the State Government filed an appeal vide L.P.A No. , 4702 of 2003 against the order of writ Court. This Court in aforesaid case and other analogous cases, in view of judgment reported in Secretary of State of Karnataka Vs. Uma Devi (supra), remanded back the matter and directed to constitute the committee to examine the nature of appointment. In pursuance thereof, the constituted committee examined the appointment of persons and declared the appointment illegal and terminates their services. The writ petition was filed before this Hon’ble Court. This Court writ set aside the order of termination against that order, the State of Bihar filed the L.P.A No. 2302 of 2011 which was dismissed relying on the case for L.M. Kesari case(supra). In this case, the State has also filed counter affidavit and stated that the 7 appointment of the petitioner is completely illegal as his appointment has not been made in accordance with law as there was no vacancy, no selection committee was constituted and he never faced the Selection Committee, rather petitioner along with others were appointed on provisional basis illegally. It appears from the record that petitioner has been terminated from service without giving notice or show cause notice. It also appears that letter No. 1955 dated 29.12.1995 (Annexure-2) and Letter dated 14.08.2006, Annexure-3 of the writ petition are contrary to each other. In this view of aforesaid facts, this Court is remanding back the matter to the Secretary Department of Road Construction Government of Bihar, Patna who will issue show cause notice to the petitioner, the petitioner will have a liberty to file his reply bringing facts to the notice of the Secretary. The Secretary after hearing the parties would pass order giving reasons thereof, if the Secretary, would find that the appointment of petitioner is legal as valid then automatically withdraw the order 8 of termination and if the authority would find that the appointment was obtained through back door method illegally then the petitioner will not be entitled to any benefit and the order of termination would remain enforce. The authority is directed to complete this process within a period of six months from the date of receipt/production of a copy of this order. The matter is remanded back for fresh action and consideration. Accordingly this writ petition is disposed of with above observation. Prakash ( Shivaji Pandey, J.)