IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1579 OF 2010 IN CIVIL WRIT JURISDICTION CASE NO.4553 OF 2006 WITH INTERLOCUTORY APPLICATION NO.8782 OF 2010 IN LETTERS PATENT APPEAL NO.1579 OF 2010 ============================================= Sanjay Kumar son of Shri Raj Pravesh Thakur, resident of Village & P.O. Balha, P.S.Chaksheri, Districrt-Samastipur Appellant Versus The State Of Bihar & Ors - Respondents ============================================= Appearance : For the Appellant : Mr. Suresh Chandra Giri For the Respondent : Mr. A.Amanullah, G.A.9 ============================================= CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2. 01.10.2010. Reg: I.A.No.8782 of 2010 Heard the learned Advocates for the parties. This application under section 5 of the Limitation Act is made by the appellant for condonation of delay of 28 days occurred in filing the Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interim Application stands disposed of. Reg: Letters Patent Appeal No.1579 of 2010. Feeling aggrieved by the judgment and order dated 20th July 2010 passed by the learned Single Judge in above C.W.J.C.No.4553 of 2004, the writ petitioner has preferred this appeal under Clause 10 of the Letters Patent. 2 Pursuant to the advertisement no.1 of 1993 published by the respondent authorities, the appellant applied for selection and appointment to the post of Constable in Muzaffarpur district. He appeared for the selection, physical test, etc. but was not selected. He fell short by 2 cms in the requirement of minimum height of 177 cms. As the appellant did not receive appointment letter, he approached the Director General of Police. According to the appellant, he was an athlete. Hence, though he did not qualify for appointment, he may be appointed on special consideration. Pursuant to his representation, under the orders of the Director General of Police, the appellant was appointed as constable on 1st April 1994. Since his appointment, he continued in service as Constable. On 9th July 2003, a notice was issued to the appellant to show cause why his service be not terminated as his appointment was illegal and was made without the authority of the law. The notice was duly answered by the appellant. After receipt of his reply, by order dated 28th August 2003 made by the Superintendent of Police, Sitamarhi, the appellant was discharged from service. Feeling aggrieved, the appellant filed above C.W.J.C.No.4553 of 2004 under Article 226 of the Constitution. The writ petition was contested by the respondents. The learned Single Judge, relying upon the judgment of this Court in the matter of Kamal Chandra Sah Vs. The State of Bihar & ors [2006 (3) PLJR 468] and in the matter of Sudhir Kumar Vs. State of Bihar and 3 others [2000 (3) PLJR 717] held that; “no person, however, high he may be, has authority to exercise if the power is not vested in him under the statute. Nowhere in the Police Manual has the Director General of Police been vested with the power to appoint a constable even if it was a case of athlete having may certificates to his credit. An appointment made in breach of the Rules and procedure cannot be said to be an appointment in the eye of law. The order of discharge was legal and valid. Feeling aggrieved, the writ petitioner has preferred this appeal. Learned Advocate Mr. Suresh Chandra Giri has appeared for the appellant. He has submitted that the appellant was indeed appointed after following due selection procedure pursuant to the advertisement no.1 of 1993. The appellant was selected on special quota of athlete. The appointment, therefore, cannot be held to be illegal and void. We are unable to agree with Mr. Giri. It is admitted that the appellant did not possess the requisite minimum height of 177 Cms. As he fell short by 2 cms., he was not selected pursuant to the advertisement no.1 of 1993. It was pursuant to his representation made to the Director General of Police and on recommendation made by the Director General of Police, he was appointed as constable. As held by this Court in the above referred judgment of Sudhir Kumar affirmed by another bench in the matter of Hemkant Jha & ors Vs. The State of Bihar & ors [2007 (3) PLJR 657] the appointment of the appellant 4 can not be said to have been made in accordance with law. It was indeed void ab initio. Termination of his service is legal and valid. In Hemkant Jha (supra), the bench has quoted with approval; “in the light of the relevant rules in the Police Manual i.e. Rule 661 (b) read with Police Order No.202/1988 and section 12 of the Police Act, 1861, the appointment to the post of Constable is to be made by the District Superintendent of Police for which a select list is to be prepared by a Selection Board duly constituted for the purpose and the Director General of Police has no discretionary power to order or make appointment to the post of Constable on any ground.” For the aforesaid reason, the appeal is dismissed in limine. ahk (R. M. Doshit, CJ) (Jyoti Saran, J)