Letters Patent Appeal No.758 OF 2002 Against the order and judgment passed by the learned single Judge in CWJC No. 7220 of 2000, dated 31.8.2001. --------- 1. THE STATE OF BIHAR THROUGH THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 2. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SAQRAN DIVISION, CHAPRA. 3. THE DISTRICT EDUCATION OFFICER, GOPALGANJ. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. ----RESPONDENT/APPELLANTS Versus 1. AMRENDRA KUMAR RAM, SON OF SRI RAM NATH RAM, RESIDENT OF VILLAGE GAMAHARIA, PO.O GAMAHARIA, DISTT. SARAN AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION GOPALGANJ. 2. SRI BRAJESHWAR KUMAR, SON OF GENDO PRYAPATI, RESIDENT OF VILLAGE DIHARI, P.O. MUNJHAUT, P.S. FATEHPUR, DISTRICT GAYA AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. ----PETITIONERS/RESPONDENTS. W I T H Letters Patent Appeal No. 786 of 2002 Against the order and judgment passed by the learned single Judge in CWJC No. 7131 of 2000 dated 31.8.2001 -------- 1. THE STATE OF BIHAR 2. THE DIRECTOR SECONDARY EDUCATION, BIHAR, PATNA 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, CHAPRA. 4. THE DISTRICT EDUCATION OFFICER, CHAPRA. 5. THE SUB DIVISION EDUCATION OFFICER, CHAPRA. -----RESPONDENTS/APPELLANTS Versus SANDHYA KUMARI, DAUGHTER OF KEDAR NATH RAI, RESIDENT OF VILLAGE JALALPUR, DISTRICT GOPALGANJ. W I T H Letters Patent Appeal No. 242 of 2007 Against the order and judgment passed by the learned single Judge, in CWJC No. 7220 of 2000 dated 31.8.2001. 1. THE STATE OF BIHAR 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, CHAPRA. 4. THE DISTRICT EDUCATION OFFICER, GOPALGANJ 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. ------ RESPONDENTS/APPELLANTS. Versus - 2 - 1. BRAJESHWAR KUMAR, SON OF GENDO PRAJAPATI, RESIDENT OF VILLAGE-DIHARI, PO. MUNJHAUT, POLICE STATION FATEHPUR, DISTRICT GAYA AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. ------PETITIONER NO.2/RESPONDENT. 2. AMRENDRA KUMAR RAM, SON OF SRI RAM NATH RAM, RESIDENT OF VILLAGE GAMAHARIA, P.O. GAMAHARIA, IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. ------PETITIONER NO.1/RESPONDENT. For the Appellants : Mr. Sunil Kumar Mandal, Standing Counsel No. 15, Mr. Bipin Kumar, Advocate. Mr. Prem Shankar, Advocate For the Respondents : Mr. Jitendra Singh, Senior Advocate. Mr. Prabhakar Singh, Advocate. For the Respondents in : Mr. Anant Kumar Bhaskar, LPA 758 of 2002 and Advocate. LPA 242 of 2002. P R E S E N T THE HON’BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD. THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad& Ranjan,JJ: C.W.J.C. 7131 of 2000 was filed by one Sandhaya Kumari, challenging her order of termination. CWJC 7202 of 2007 was filed by Amrendra Kumar and Brajeshwar Kumar and they also challenged the orders of their termination. Another employee namely, Vijay Kumar Prasad, aggrieved by the order of termination, preferred CWJC 7607 of 2000. All the writ applications were heard together. By common order dated 31.8.2001 all the writ applications have been allowed and the order of terminations quashed with direction to reinstate them in service with consequential benefits, excepting the salary for the period they have not worked. - 3 - State of Bihar and its offices, aggrieved by the order passed in the case of Sandhya Kumari and Vijay Kumar Prasad, preferred LPA No. 786 of 2002 and LPA No. 808 of 2002 respectively. Separate appeals have been preferred against the order passed in CWJC No. 7220 of 2000 and they have been registered as LPA No. 758 of 2002 and LPA No. 242 of 2002 respectively. LPA No. 808 of 2002 passed against the common order impugned in these appeals arising out of the order passed in CWJC 7607 of 2000, has been disposed of along with other appeals by a common judgment dated 11.1.2007 in the case of Ashutosh Kumar Vrs. State of Bihar, reported in 2007 (2), PLJR 509. These appeals pertain to the same order dated 31.8.2001 passed in CWJC 7131 of 2000 and CWJC 7220 of 2000 and the State of Bihar and its officers assail the same in these appeals filed under Clause-10 of the Letters Patent. At the outset, Mr. S.K. Mandal, Standing Counsel No. 15 prays for disposal of the appeals in terms of the order of this Court in the case of Ashutosh Kumar (supra). We were inclined to dispose of these appeals in terms of the order passed in the case of Ashutosh Kumar (supra) but before we do, it is expedient to consider the submission of the writ-petitioner, Sandhya Kumari resisting the aforesaid course. Mr. Jitendra Singh, Senior Advocate appearing on her behalf submits that against the order denying back wages, she preferred LPA No. 1176 of 2001 before this Court and the Division Bench of this Court had directed for payment of 50% of the salary for the period she was out of employment. While - 4 - doing so, the Division Bench has observed that “the State has not filed an appeal against the setting aside order of termination, it cannot challenge that part of the order.” In view of aforesaid observation, the State cannot be permitted to challenge the setting aside the order of termination, in the present appeal, contends Mr. Singh. According to him, a Bench of co-ordinate jurisdiction cannot go into the question of the validity of the order of the learned single Judge setting aside the order of termination by permitting the State to challenge the same in this appeal without challenging the order passed in the earlier appeal of Sandhya Kumari. Any such exercise, according to him, shall be an abuse of process of the Court. As this argument is founded on an earlier order of this Court dated 10.12.2001 passed in LPA No. 1176 of 2001 (Sandhya Kumari Vs. State of Bihar and others), we deem it expedient to reproduce that in extenso: “The learned counsel appearing for the State on the other hand submitted that the appointment of the appellant was itself illegal from its very inception and the learned Single Judge rightly held that she was not entitled to salary for the period she was out of employment as a result of order of termination. As the State has not filed an appeal against the setting aside order of termination, it cannot now challenge that part of the order by which the order of termination has been set aside. Now coming to the payment of salary is concerned, taking into consideration the facts of the case, we are of the view that in a case like this, the appellant should be held entitled to only 50% of the salary for the period, that is to say, from the date of order of termination till the date of passing of the order”. (underlining ours) We do not have the slightest hesitation in rejecting this - 5 - submission of Mr. Singh. Sandhya Kumari, aggrieved by the order of termination preferred writ application. The learned single Judge while allowing the writ application, quashed the order of termination and directed for her reinstatement with consequential benefits but denied the salary for the period she had not worked. Against that portion of the order of the learned single Judge, she preferred appeal and succeeded to some extent and it was directed that she will be entitled for 50 per cent of the salary for the period she was out of employment. In the said Letters Patent Appeal, the question of the validity of the order passed by the learned single Judge, setting aside the order of termination was not gone into. In that view of the matter, the observation of the Division Bench in the appeal preferred by Sandhya Kumari has to be understood in the context it was rendered. The observation of the Division Bench in Letters Patent Appeal filed by Sandhya Kumari that the State having “not filed an appeal against the setting aside order of termination, it cannot challenge that part of the order” does not mean that the State Government cannot challenge that part of the order by an appropriate proceeding. The State of Bihar, in fact, has preferred the present appeal, aggrieved by that portion of the order and hence the validity of the order of the learned single Judge, so far as it relates to setting aside the order of termination deserves to be gone into and no principle of law prohibits this Court from going into that. Mr. Singh, then contends that instead of filing separate appeal, the State could have preferred cross-objection in terms of order 41, Rule 22 of the Code of Civil Procedure and having not done so, it is - 6 - impermissible for the State to file separate appeal. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Superintending Engineer and others Vrs. B. Subba Reddy, AIR. 1999, Supreme Court 1747 and our attention has been drawn to paragraph 24 of the judgment which reads as follows:- xx xx xx xx “From the examination of these judgments and the provisions of S. 41 of the Act and Order 41, Rule 22 of the Code, in our view, following principles emerge: (1) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred. (2) Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) Court-fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross-objection. (4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. (5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross- objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal. (6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross- objection if he still felt aggrieved by the judgment and decree or order”. xx xx xx xx - 7 - We do not find any substance in this submission of Mr. Singh also and the case relied on, has no bearing at all in the facts and circumstances of the case. In this case the status of cross-objection was under consideration of the Supreme Court. Further, the provision of order 41 Rule 22 of the Code of Civil Procedure per se does not apply in a proceeding under Article 226 of the Constitution of India. As observed earlier by the order impugned, the learned single Judge has set aside the order of termination but without back wages, and aggrieved by the denial of the back wages, writ petitioner had gone in appeal. Setting aside the order of termination and denying back wages, are different and distinct relief and State of Bihar is aggrieved by the order, setting aside the order of termination. Simply because the State has not preferred cross-objection in the Letters Patent Appeal filed by the writ petitioner shall not preclude it to challenge that part of the order in an appropriate proceeding. Mr. Singh, then contends that the State of Bihar having acquiesced to the order of the Division Bench granting half of the back wages to the writ petitioner, it cannot be allowed to challenge the order of termination. Reliance has been placed on a decision of the Supreme Court in the case of Kumud Kumar Vrs. Central Bank of India and Another, 2000 (9) SCC 244, relevant portion whereof reads as follows: xx xx xx xx “Learned counsel, appearing for the appellant urged that in the present case no notice under Section 106 of the Transfer of Property Act was required to be given to the tenant. We are not inclined to entertain the argument of learned counsel for the appellant. If we permit the appellant to - 8 - prosecute this appeal, it would amount to abuse of the process of the court. It is almost settled that a litigant cannot be allowed to prosecute two remedies simultaneously. Moreover we find that the appellant has acquiesced to the order of the High Court by giving notice under Section 106 of the Transfer of Property Act and thereafter filing a suit for ejectment of the tenant. The only question that requires to be determined is at what rate the appellant is entitled to the rent deposited by the tenant. It is admitted by the Bank’s counsel, Mr Avijit Bhattacharjee that the respondent Bank had deposited the mesne profits in the second suit @ Rs 5000. We, therefore, permit the appellant to withdraw the rent @ Rs 5000 out of the amount deposited by the respondent tenant herein for the period 22.1.1991 to 1.8.1996. The respondent Bank will also equally be at liberty to withdraw the balance amount. Learned counsel for the parties are also in agreement with this order”. xx xx xx xx Reliance has also been placed on a Division Bench judgment of this Court in the case of Gokul Prasad Vrs. State of Bihar, 2008(2), PLJR 65 and our attention has been drawn to the following passage from paragraph-15 of the judgment, same reads as under:- xx xx xx xx “In my opinion, on account of the subsequent events, this appeal deserves to be dismissed as the appellant-writ petitioner cannot be permitted to wriggle out of the doctrine of acquiescence which is based on the concept of equity, good conscience and justice. The view which I have taken is supported by the judgment of the Supreme Court in the case of Kumud Kumar (supra) where it was held that after the appellant had acquiesced to the order of the High Court, he could not be allowed to avail the two remedies simultaneously. “ xx xx xx xx We do not find any substance in the submission of Mr. Singh. The very assumption that the State of Bihar has acquiesced to the - 9 - order setting aside the order of termination is absolutely misconceived. Even at the cost of repetition we may observe that the writ petitioner had preferred the Letters Patent Appeal confined to the order of the learned single Judge denying the back wages, and in that view of the matter, it cannot be said that the State of Bihar has acquiesced to the order of termination as it was a party in the said proceeding. Mr. Singh, then contends that the validity of the order of the learned single Judge setting aside the order of termination was open to challenge before the Division Bench in the appeal preferred by the writ petitioners and having not done so, it is bound by the principle of constructive res judicata and in the present proceeding, the State of Bihar is precluded from questioning that portion of the order. Reliance has been placed on a decision of the Supreme Court in the case of U.P. State Road Transport Corporation Vrs. State of Uttar Pradesh and another, AIR 2005, SC, 446. In the said case it has been held as follows:- xx xx xx xx “The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. (See Satyadhan v. Smt. Deorajin Devi AIR 1960 SC 941)”. xx xx xx xx We do not find any substance in this submission of Mr. Singh - 10 - also. We do not have any hesitation in saying that the principle of res judicata or for that matter constructive res judicata do apply in writ proceeding but in the present appeal preferred by the writ petitioner, the validity of the order of termination was not an issue directly or substantially. Sine quo non for applying the principle of res judicata is that the matter in issue is directly or substantially in issue in an earlier proceeding and the Court had finally adjudicated on the same and further the issue was necessary to be decided in the earlier proceeding. Here, the validity of order of termination was not an issue and could not have been an issue as the writ petitioners who had preferred the appeal, was not aggrieved by the same and in fact, prayed for payment of the back wages on the finding of the learned single Judge that order of termination was set aside. We are of the opinion that it is not the case in which the principle of constructive res judicata is remotely attracted. Mr. Singh, then submits that it is not a fit case in which the validity of the order impugned deserves to be gone into the present appeal filed under Clause-10 of the Letters Patent. He points out that this being an intra Court Appeal, in view of the earlier judgment of the Division Bench in the appeal preferred by the writ-petitioner, it shall be inappropriate to go into the validity of the same order in the present appeal. We do not find any force in the submission of Mr. Singh. Fact of the matter is that the order impugned in this appeal was impugned in LPA No. 808 of 2002, 2007 (2) PLJR 509 and that appeal has been disposed of with certain direction. Consistency is the virtue of the - 11 - Court. Therefore, these Letters Patent Appeals shall have the same fate as that of others. Mr. Singh lastly submits that in case, the order passed by the Division Bench in the appeal preferred by the writ petitioners is not considered to be covering the entire issue, it will result into two operative orders which is impermissible in law. He points out that the order of the learned single Judge impugned in these appeals have merged with the order passed by the Division Bench in the appeal preferred by the writ petitioner and as such that order will operate on the principle of merger. He emphasis that there cannot be two operative orders. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Kunhayammed and Others Vrs. State of Kerala and Another, (2000) 6, SCC, 359, and our attention has been drawn to paragraph-44 (iii) of the judgment same reads as follows:- xx xx xx xx “The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.” xx xx xx xx - 12 - We do not have the slightest hesitation in accepting the broad submission of Mr. Singh that there cannot be two operative orders on the same subject matter but this principle has no application at all in the facts and circumstances of the case. In the writ application, the learned single Judge considered the validity of the order of termination as also the issue of grant of back wages. The learned single Judge, found the order of termination to be illegal, but he denied back wages. Writ petitioner in the appeal, did not and could not have challenged the order setting aside the order of termination which was in her favour. Therefore, it cannot be said that the portion of the order of learned single Judge setting aside the order of termination has merged with the order passed in Letters Patent Appeal preferred by the writ petitioners challenging the order refusing back wages. The order in relation to termination of service operates in different field and, therefore, it cannot be said that, that portion of order has merged with that of the order by the Division Bench granting back wages. Mr. Singh lastly submits that the State has not come out with clean hands by not disclosing in the memo of appeal the order passed by the Division Bench in the Letters Patent Appeal filed by the writ petitioner. We are of the opinion that the matter in issue in the earlier Letters Patent Appeal filed by the writ petitioner was entirely different, then the present appeal, and as such, it was not necessary for the State to state the said fact. In any view of the matter the appeals do not - 13 - deserve to be dismissed on the ground that it has not approached the Court with clean hands. Mr. Anant Kumar Bhaskar, appearing on behalf of the respondents in LPA No. 758 of 2002 and 242 of 2007 contents that these appeals have different facts and should not be disposed of in terms of the order passed in LPA No. 808 of 2002. However, from the judgment of the learned single Judge, he is unable to point out any difference. All the three writ applications have been allowed on common ground and once this Court has interfered with the order and given certain directions in appeal preferred against the same order passed in one of those cases, we are not inclined to examine this submission of Mr. Bhaskar. In conformity with the order of the Division Bench, in the case of Ashutosh Kumar (supra), 2007 (2) P.L.J.R 509, we dispose of these appeals with the following directions:- (1) The Chief Secretary, Government of Bihar is directed to constitute a Committee of three Secretaries within a period of one month from today to examine the manner and mode and the type of Modus Operandi whether the appointments are in consonance with the recruitment Rules, regular, legal or not. (2) The Committee shall consider the individual case after giving an opportunity of hearing to the affected employees and reach to a decision as to the nature of their appointments whether legal or not and valid or not. (3) The Committee shall, obviously, take the decision in the light of law laid down by the Constitution Bench in Secretary, State of Karnataka and Ors. vs. Uma Devi (3) and Ors. (2006)4 SCC 1 [:2006(2) PLJR (SC) 363] and in particular, the observations of the Hon’ble Supreme Court which are quoted hereinabove, particularly, paragraph 53 of - 14 - the said judgment. (4) It shall also be remembered that the exercise of regularization, if required,