IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.592 of 2009 Arun Kumar Singh . Versus The State Of Bihar & Anr . ----------- 3/ 30/06/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 27.5.2008 passed by the Additional Commissioner- cum-Secretary, Human Resources Development Department, declining to regularize his services in light of the guidelines laid down in the case of State of Karnataka Vs. Umadevi reported in (2006) 4 SCC 1. The writ petition was filed on 13.1.2009 after serving two copies of the writ petition in the office of the learned Advocate General. The second copy was intended to facilitate the early filing of a counter affidavit by the respondents. It was taken up by the Bench for consideration first on 10.1.2011. The aforesaid period from the date of filing was not considered sufficient by the respondents to file a counter affidavit. If that were not enough, even after the direction to do so by the Court on 10.1.2011, no counter affidavit has been filed. The Court therefore proceeds to adjudicate the matter on merits as it is satisfied that to grant any further indulgence to the 2 respondents at this stage for filing of counter affidavit shall only be at the cost of denying a timely consideration to the petitioner for his request of justice which appears already delayed to him. Whether the writ petition may be allowed or rejected, is not relevant at this stage. What is relevant is the quick and timely dispensation of justice, which it was the duty of the State, to aid the Court. The facts of the case can more than adequately be noticed from an order of the Court dated 3.5.2001 in C.W.J.C. No.13509/01 preferred by the petitioner earlier when his services were terminated. He came to be appointed as ad hoc in pursuance of an advertisement on the post of Clerk after an interview on 11.1.1994. His services came to be regularized. The respondents had filed a counter affidavit, considering which it was held that publication of an advertisement was not in dispute. The petitioner was not a back-door appointee. The Court arrived at the conclusion that he was sought to be terminated only on the ground that the Circulars issued by the State Government had not been strictly followed. That for the aforesaid reason it could not be held outright that his appointment was contrary to the constitutional mandate. Assuming there was any deviations from the Circulars, no fraud having 3 been alleged against the petitioner for extraneous considerations, the long years for which he had worked (seven years), to turn him out of service was not justified. Reliance was placed on certain orders of the Court in accordance with service jurisprudence as it then held the field. The writ application was allowed. L.P.A. No.156/02 was then preferred by the State against the same. While the appeal remained pending, the Supreme Court enunciated the service jurisprudence with regard to regularization in the case of Umadevi (supra). Consequently, on 11.1.2007 a Dvision Bench of this Court without delving into the facts of individual cases, by a composite order referred the L.P.A. along with several other L.P.A’s. to a Government Committee of three persons for examining the individual claims to regularization. The directions given, relevant for the present case, are to be found at Item No.1 of the guidelines. The Committee was required to examine “the manner and mode of the appointments and if they were in consonance with the recruitment rules, regular, legal or not”. The Committee rejected the claim of the petitioner on 27.5.2008. Learned counsel for the petitioner submitted that the Committee has wrongly rejected the claim of 4 the petitioner by putting the burden at his door for administrative lapses of alleged non-compliance with the principles of reservation and roster. The second finding that it was not clear whether the appointment was in pursuance of an advertisement or not, is contrary to the findings of fact arrived at in C.W.J.C. No.13509/01 after considering the stand of the respondents in their counter affidavit. The finding that the appointment was not against a vacant post is again contrary to facts. Strong reliance has been placed on a Bench Decision of this Court in C.W.J.C. No.17887/08 affirmed in L.P.A. No.332/11. Learned counsel for the State submitted that the Division Bench had directed consideration of the case of the petitioner which has been done in light of the guidelines laid down in the case of Umadevi (supra). The petitioner did not fulfil the requirements thereunder for ten years of service, but had only worked for seven years. The Committee was not satisfied of the legality of his appointment as mentioned in paragraph-8 of the order. The Court shall now proceed to consider the individual grounds mentioned in paragraph-8 of the order. The finding that principles of reservation and roster were not followed does not stand the scrutiny of 5 law in view of the findings arrived at in C.W.J.C. No.17887/08 at page-5 as follows:- “ The impugned order seeks to fault the petitioner for the lapses of the officials themselves in having made appointments without roster clearance and reservation rules. The counter affidavit is completely silent on what action, if any, had been taken against the officers concerned.” Insofar as the finding with regard to the question of an advertisement is concerned, quite apart from the factual finding in C.W.J.C. No.13509/01 after considering the counter affidavit of the respondents, reference may usefully be made to the order of the Court in C.W.J.C. No.17887/08 holding again at page-5 as follows:- “Insofar as the non-publication of an advertisement is concerned, instead of arriving at a finding that according to Government records no such advertisement had been published, the authorities have intentionally sought to cast their own burden of proof on to the petitioner and then to indict him what was basically answerable by them alone. Once the respondents had asserted that no advertisement had been published based on documentary evidence and confronted the petitioner with the same, only then the 6 onus would have shifted to the petitioner. The impugned order on that ground is based on assumptions and presumptions.” The ground that the appointment was not against a sanctioned vacancy is falsified on the face of the appointment letter of the petitioner appended at Annexure-3 dated 11.1.1994 which states that he was being appointed on the vacant post of a Clerk. That possibly may be a reason why the respondents have chosen not to file a counter affidavit. On the ground of the irregular constitution of the Committee, the petitioner alleges that the Regional Deputy Director of Education was the competent authority to make appointment in regional offices. The impugned order does not state that he was not appointed by the competent authority. The fact that the Committee was required to be chaired by the District Magistrate and which may not have been done, was at best an irregularity and cannot vitiate the appointment rendering it as illegal by an authority not competent to appoint. Insofar as the applicability of the judgment in Umadevi’s case (supra) is concerned, with regard to the legality of appointment, it achieved finality on 3.5.2011. The Division Bench subsequently referred it to a three 7 man committee. The findings in the writ petition were not disturbed, but were referred to the Committee. If any finding in the writ petition was contrary to records, and the Committee had observed that proper facts do not appear to have been placed before the Court and had pointed out those facts, the matter may have been entirely different. The reference to the Committee carried with it the burden of the order of the Court in C.W.J.C. No.13509/01. It was not a reference carte blanche to be considered in light of the judgment of the Supreme Court in the case of Umadevi (supra) delivered in 2006 to test the correctness of the order of this Court validly pronounced in the year-2001 in accordance with law as it then stood. In conclusion, it is held that the grounds mentioned in the impugned order to discredit the appointment of the petitioner insofar as the merits are concerned at items-1 to 4 does not stand the scrutiny of the Court. The finding that the petitioner did not fulfil the requirement of ten years’ service to claim regularization is misconceived inasmuch as the petitioner was not claiming regularization but was questioning the termination of his services alleging that it was wrongly done. 8 The impugned order dated 27.5.2008 is accordingly quashed. The Court further holds that the petitioner shall have the benefit of continuity of service for all other purposes except with regard to a claim for any arrears of salary as the developments keeping him out of service appear to have taken place on account of certain orders of this Court referring matters to the authorities and therefore the respondents cannot be faulted outright to hold that the petitioner ipso facto is entitled to salary for the period that he did not work. The writ application is allowed to the extent indicated. KC ( Navin Sinha, J.)