IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3590 of 2004 Smt.Kawal Kumari, wife of Sita Ram Ram, resident of village + P.O. Bagan, P.S. Brahampur, District- Bhojpur, at present dismissed peon, Project Girls High School, Etadhi, Bhojpur ……… Petitioner Versus 1.The State Of Bihar through its Secretary-cum- Commissioner, Education Department, Govt. of Bihar, New Secretariat, Bihar, Patna 2.Director, Secondary Education, Govt. of Bihar, Patna, New Secretariat, Bihar, Patna 3.District Education Officer, Buxar ……… Respondents ----------- For the Petitioner : Dr.M.P.Shukla, Adv. For the State : Mr.A.Amanullah, S.C.17 and Mr.Arun Kumar Prasad, A.C. to S.C.17 ----------- P R E S E N T HON’BLE MR.JUSTICE JAYANANDAN SINGH Jayanandan Singh,J: Petitioner, in this writ application, has prayed for quashing of Memo no.412 dated 30.12.2003 (Annexure-1), an office order, issued under the signature of respondent District Education Officer (D.E.O.), whereby her service as peon in the Project Girls High School, Etadhi, Buxar, has been terminated with immediate effect. She has further prayed for direction to the respondents not to disturb her from her service as peon. 2. The facts of the case lie in a narrow compass. As per her claim, she is a schedule caste (chamar) and has a qualification of Middle pass. She received a letter dated 5.8.1989 of respondent D.E.O. (Annexure– 4) at her residence, by which, in reference to her one application, which was received from the office of Deputy Secretary of the State Cabinet, she was asked - 2 - to submit her necessary certificates in proof of her age, so that, after verification, necessary action may be taken in respect of her appointment. It was also mentioned in the letter that, earlier also, a letter was sent to her through registered post, which was returned with endorsement that no one of that name was there in the village. She submitted her certificates accordingly, whereupon, she was appointed under the orders of respondent D.E.O., vide his office memo no. 3658 dated 8.9.1989 (Annexure–5), on a vacant post of peon in the Project Girls High School, Brahampur, in the scale of Rs.350-425, on a temporary basis. Petitioner joined and started working to the satisfaction of the concerned authority. Subsequently, as appearing from the entries in the service book dated 15.7.1995 (Annexure–6), she was transferred to Project Girls’ High School, Etadhi in the District of Bhojpur. All of a sudden, she received a letter from respondent D.E.O., vide Annexure-7 dated 3.11.2003, from which it appeared that, pursuant to the orders of the higher authorities contained in the letters under reference, an enquiry was held. It transpired that her appointment had been made merely on an application, without compliance of departmental instructions in respect of reservation roster etc. Therefore, by way of second show cause, she was asked to submit her attested copies of certificates of educational qualification and caste within one week of the receipt of the letter, failing which proceeding for - 3 - termination of her services was to be initiated, for which, she would be entirely responsible. She submitted her reply accordingly, vide Annexure–8 dated 28.11.2003, enclosing all relevant documents, and claimed that her appointment was made in the light of the directions contained in the Prime Minister’s office letter dated 21.4.1989 and letter of Cabinet Secretary, Patna dated 8.8.1989. Therefore, she prayed that her appointment be held valid and the order of stay of payment of her salary be withdrawn. However, her reply was not found satisfactory and it was found that her appointment had been made by the then D.E.O. against the rules of reservation, roster clearance and without an advertisement. Hence, by the impugned Annexure–1, she was terminated from service with immediate effect. 3. Learned counsel for petitioner has submitted that it was not the petitioner who had approached the respondents for her appointment without an advertisement and without following any rules for public employment. He submitted that it was the then respondent D.E.O. himself, who had repeatedly sent letters to the petitioner asking her to submit her papers for her appointment, in view of some communication received from the Deputy Secretary of the Cabinet Department, in response to which, she submitted her papers, after verification of which, she was appointed by the D.E.O. He also submitted that, it is also not the case of the respondents that she - 4 - produced any forged or false certificates or misrepresented or played fraud to obtain her appointment. Hence, after more than 14 years of service, now she cannot be terminated from service, without any fault on her part and fault, if any, squarely lies with the then D.E.O. in not following the rules in this regard. Therefore, if at all petitioner’s services were required to be terminated on the ground of violation of the rules for appointment, action ought to have been initiated first against the then D.E.O. and he should have been punished first for violation of the rules for appointment, and then only any action ought to have been taken against the petitioner. He submitted that now petitioner has crossed the age of public employment and hence she should be adequately compensated or, in the alternative, she be considered for re-appointment in the next transaction for appointment on class IV posts in the district with age relaxation and due weightage for her experience. 4. A counter affidavit has been filed in the case, sworn by the present D.E.O., Buxar, wherein it is stated that, pursuant to the letter of Director, Secondary Education no. 361 dated 28.3.2002, a Three Member Committee was constituted to enquire into the legality of appointments made in the project schools all over the State, and by letter dated 1.8.2003 payment of salary to the irregularly appointed employees was stopped. The said Committee found the - 5 - appointment of the petitioner totally illegal and hence, pursuant to letters of Director, Secondary Education dated 6.9.2003 and of R.D.D.E. dated 25.9.2003, services of the petitioner was terminated by the impugned order dated 30.12.2003. It is also stated that the report of the Three Men Committee was got examined by the D.M., Buxar, who also found the appointment of petitioner as illegal (all annexed as Annexure–A series with the counter affidavit). Second show cause notice was, accordingly, issued to the petitioner, to which petitioner did not reply satisfactorily. Therefore, by the impugned order, her services were terminated in terms of the order of respondent Director, Secondary Education in his letter no. 102(P) dated 6.9.2003. 5. Petitioner has filed a rejoinder to the counter affidavit, alleging, in a nut-shell, procedural irregularities in her termination proceeding and order of termination without any proper enquiry. Pursuant to order dated 8.10.2009 passed in this case, petitioner has filed a supplementary affidavit on 20.11.2009. Along with the affidavit, she has produced the said letter of the Deputy Secretary of Cabinet Department and a letter from the Prime Minister’s Secretariat as Annexures– 10 & 11 respectively, which show that her some representation was forwarded by the Prime Minster’s Secretariat to the Chief Secretary of Bihar which was finally forwarded to the D.E.O., Bhojpur at Arrah for ‘redressal/final disposal expeditiously’. It - 6 - is also contended in the affidavit that as per letter no.705 dated 12.10.1982, the D.E.O. is the competent authority to make appointment on a post of peon. It is also contended that as per the law laid down by a Division Bench of this Court in the case of State of Bihar Vs. Ram Krishna Dubey, reported in 2008(1)PLJR 841, services of a person, whose pay fixation has been done at different stages, cannot be dispensed with without following the procedure laid down under Article 311 of the Constitution of India. It is also contended that the S.L.P. of the State Government against the said judgment of the Division Bench stands dismissed by the Hon’ble Supreme Court by order dated 28.7.2008. (copy annexed as Annexure – 12). 6. Learned Counsel for the State submitted that, it is settled proposition that dismissal of a S.L.P. in one sentence is not a stamp of correctness of the judgment of the High Court impugned in the S.L.P. He submitted that the judgment of the Division Bench in Ram Krishna Dubey’s case (2008(1)PLJR 841) has been held per incurium by another Division Bench in the case of Ashok Kumar Vs. State of Bihar (2009(3) PLJR 201). He also submitted that, after the law having been authoritatively laid down by the Constitution Bench of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi, reported in 2006(2) PLJR 363 (SC), any view expressed by any bench of the High Court, contrary to the same, will be per incurium. He submitted that a Division Bench of - 7 - this Court in the case of Hemkant Jha Vs. State of Bihar (2007(3) PLJR 657) has clearly held that the ratio of the judgment of the Constitution Bench in the case of Uma Devi (supra), which has been rendered in the context absorption/regularization of temporary employees, applies with equal force to illegal appointments also. Hence, the appointment of petitioner, being apparently illegal and in violation of the rules of the government in this regard and in apparent violation of Articles 14 & 16 of the Constitution of India, was rightly terminated. He submitted that, in the facts and circumstances, she was not even entitled for protection of Article 311. 7. The nature of appointment of petitioner is apparent. She was virtually picked up from her home and given employment by the then D.E.O. No selection procedure, at all, was followed, no rules were applied, there was no consideration of any other eligible candidate, etc. But the question is; what was the fault of the petitioner ? She surely sent a representation to the Prime Minister of the India. Every citizen has a right to do that, for any of his/her grievances. That is a very innocuous act and nobody can be blamed and punished for that. The said representation of the petitioner, ultimately, travelled to the D.E.O. Bojpur at Arrah for ‘redressal/final disposal expeditiously’. Question is; was the D.E.O. entitled to by-pass all rules and regulations for public employment and straightaway - 8 - give an employment to petitioner. Definitely he was not. But thereafter, petitioner continued in service for over 14 years and now her services is being terminated for the illegality committed by the then D.E.O. 14 years earlier and for no fault committed by her. It is true that, in view of recent judicial pronouncements and developments in law, petitioner is not entitled for her reinstatement. Her service book does not show that, by any conscious decision of any higher authority of the Government in the department, her services were confirmed, so as to attract the exception carved out by the Constitution Bench in paragraph 44 of the judgment in the case of Uma Devi (supra). But, then, what relief she can get for being thrown out on the road under the Sun, after 14 years, for no fault of her’s at the first instance ? 8. This Court was of the view that petitioner should be heavily compensated, not from the public exchequer, but from the salary of the then D.E.O. Had she not been appointed illegally at that point of time, she must have found out some alternative source of her sustenance and would have been peacefully settled in life, than getting thrown out on road under the Sun at this age. But, in spite of repeated enquiries, neither of the counsels could inform this Court about the whereabouts of the then D.E.O., who had appointed the petitioner; whether he is in service and at what high post, or has superannuated, is dead or alive. Therefore, this Court feels handicapped to - 9 - pass any orders in respect of compensation to the petitioner. But she must get some solace at this stage of life within the four corners of law. 9. Therefore, this Court directs the respondents to consider the case of petitioner for her re- employment on any available post of class IV in the District in the very next transaction of appointments, as and when it is taken up by them. For this consideration, she must be given age relaxation and her case must not be rejected on the ground of over- age. She also must be given due weightage of her working with them for 14 long years and the experience gained by her out of the same. This Court makes the respondent D.E.O., Buxar, under whose jurisdiction petitioner was last employed, personally responsible for proper consideration of the case of the petitioner in the very next transaction of appointments on class IV posts in the district, and he shall bring to the knowledge of all concerned authorities this order of the Court in respect of the petitioner for the purpose of its compliance. 10. The writ application is, accordingly, disposed off with the aforesaid observations and directions. Patna High Court The 26th March,2010 N.A.F.R./Pradeep/ (J. N. Singh, J.)