IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.130 of 2006 VIJAY KUMAR, S/O Sri Nandu Lal, Clerk, Daroga Prasad Rai High School, Saristabad (Patna) Police Station- Gardanibagh, Patna and permanent resident of Village Sorampur, Police Station Bikram, District- Patna. ………Petitioner. Versus 1. THE STATE OF BIHAR, through the Secretary (Secondary Education), Human Resources Development Department, Government of Bihar, New Secretariat, Patna. 2. The Director (Secondary Education), Human Resources Development Department, Bihar Secondary Education Officer, Bihar Intermediate Education Council Building, Budh Marg, Patna. 3. The Regional Deputy Director of Education, Patna Division, Patna. 4. The District Education Officer, Patna. For the Petitioner : - Sri Rajendra Pd. Singh, Sr. Advocate & Santosh Kuamr Singh, Advocate. For the State : - Sri P.K.Singh, Advocate. ----------- 2 06.01.2011 The petitioner has challenged his termination as Class-III employee issued vide Memo No. 2681, dated 21.11.2005 as contained in Annexure 1. The case of the petitioner is that petitioner was appointed as clerk, a Class-III post, on a temporary basis by the then District Education Officer, Patna, vide Memo no. 751, dated 04.07.1983 in the pay scale of Rs. 580- 860, as contained in Annexure 2, in High School Tenari. Subsequently, vide Memo no. 7412 dated 08.08.1983 as contained in Annexure 2/A, the District Education Officer, Patna modified the earlier order and posted the petitioner in High School Fatuha, for the purpose of his absorption on the newly created post of clerk. The petitioner was then posted in Daroga Prasad Rai High School, Saristabad, Gardanibagh, Patna, on the newly created post of - 2 - Clerk. The District Education Officer, vide Memo no. 878, dated 15.07.1996 granted First Time Bound Promotion to the petitioner with effect from 12.08.1993, after his passing of the Noting and Drafting examination. After 22 years of petitioner’s service, the District Education Officer, Patna issued a show cause notice (a vague show cause notice as contained as Annexure 4) vide Memo No. 1090, dated 25.08.2005 to the effect that it appeared to the authorities that the appointment of the petitioner was irregular, as the same had been made without following the procedure of appointment. Consequently, the petitioner submitted his show cause and ultimately Annexure 1 was issued by which the petitioner’s service was terminated on the ground that the show cause was found to be unsatisfactory, as there has neither been any advertisement nor any provision of reservation was followed, nor the concurrence of the District Education Establishment Commitment was obtained. It is contended by the learned counsel for the petitioner that the show cause notice is vague and has been issued after twenty two years of his service and on the basis of the vague show-cause notice, the termination order was issued. The Learned Counsel for the petitioner relied on the case of Prakash Chandra Sinha versus the State of Bihar, reported in PLJR 2010(2) 280 in which it has been held that in view of the principle laid down by the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka & Others vrs. Uma Devi, reported in 2006(4) SCC 1, the services of the petitioner is deemed to be - 3 - regularized and the question of irregularity should have been raised at the initial stage of appointment and not after twenty two years of service. A counter affidavit has been filed on behalf of the State taking the stand that the appointment was irregular as no advertisement was made and it is against the procedure of appointment as laid down by the Personnel & Administrative Reforms Department vide letter no. 16440, dated 03.12.1980 and the follow up Department Circular no. 17127 dated 12.06.1981 which required preparation of merit list after advertisement and roster clearance. Considering the submission of the parties, I find that the appointment was made in the year 1983 by the District Education Officer and the counter affidavit does not reflect that the District Education Officer had no authority to appoint and after twenty two years of such appointment a vague show cause notice was issued vide Annexure 4. The counter affidavit further does not reflect as to what action has been taken by the respondents against the authority, who made the irregular appointment or against the authorities who allowed the petitioner to continue for twenty two years in service. Since it is the case of the respondents that the appointment was irregular, this court finds no justification for termination of petitioner’s service after twenty two years of uninterrupted service and allow the authority to reopen the question of irregularity in initial appointment after twenty two years, which is in complete derogation to the principle laid down in the case of Uma Devi(Supra). Reopening of question of initial - 4 - appointment on the basis of irregularity in initial appointment after ten years of uninterrupted service has been deprecated by the Apex Court whereas in the present case the petitioner worked without any interruption for twenty two years and availed all the facilities of a regular employee. The principle of Uma Devi (Supra) has further been explained and reiterated by Apex Court in the case of State of Karnataka and Others versus M. L. Kesari and Others reported in 2010(9) SCC- 247. Paragraph 11 of the Judgment reads as. “……………..The object behind the said direction in para 53 of Uma Devi 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 of Uma Devi 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 then 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 10.04.2006 - 5 - (the date of decision in Uma Devi) 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 Uma Devi 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 Uma Devi as a one- time measure.”. Hence, the order of termination, as contained in Annexure 1, is hereby quashed. The petitioner’s service from the date of termination till the date of reinstatement will be considered in service for continuity and other consequential benefits. The authorities are directed to reinstate the petitioner forthwith and to make payment of all consequential benefits within a period of four months of the receipt of the order. Accordingly, the writ application is allowed. Bhardwaj (Dinesh Kumar Singh, J.)