IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12716 of 2009 RANDHIR KUMAR Versus THE STATE OF BIHAR & ORS ----------- 2. 08.10.2009 Heard learned Counsel for the petitioner and the learned Counsel for the State. It is the contention of the petitioner that the Regional Deputy Director of Education, Tirhut Division, was competent to make appointment on Class III & IV posts under his division. He issued a requisition to the Employment Exchange on 2.6.1995 to sponsor candidates for appointment on class III posts under him. The petitioner who was also registered with the Employment Exchange bearing Registration No. BC 15480 applied and was sponsored by the Employment Exchange for consideration. The RDDE issued him interview call dated 9.6.95 to appear for the purpose on 15.6.95. The petitioner then came to be appointed on 22.6.95. He started to discharge duties and also appeared in the Hindi Noting and Drafting Examination conducted by the State Government which he cleared on 4.12.97. His services were then terminated by the Director, Secondary Education on 18.11.97 on the ground of illegal appointment. He came to this Court in CWJC No. 11800 of 1997 which was allowed by order dated 20.8.99.The State preferred LPA No. 1237 of 1999.The Appeal was dismissed but with a liberty to the authorities to proceed afresh in accordance with law. The Appellate Court however observed that there was no material on record to suggest that the petitioner was a candidate sponsored through the Employment Exchange putting him at 2 par with the case of Ravindra Tiwari in CWJC No. 533 of 1999 and which order came to be affirmed in LPA No. 1512/2000 and subsequently by the Supreme Court in SLP (Civil) No. 6077/2001.Fresh show cause was issued to the petitioner on 2.1.2006, which was duly replied to asserting that the petitioner was registered with and sponsored by the Employment Exchange enclosing photo copies of the same as also that he had been called for interview with documentary evidence. The impugned order dated 16.6.2008 then came to be passed by the Director, Secondary Education, holding that there was no advertisement, reservation roster was not followed and therefore the appointment was illegal. The submission of the petitioner with regard to the Employment Exchange and his having faced interview was not discussed in the impugned order. The appellate order dated 6.4.2009 of the Principal Secretary, Department of Human Resources simply held that the appellate court had already held that the petitioner was not similarly situated as that of Ravindra Tiwari and therefore his case could not be considered at par with the said person. Learned Counsel for the State initially made a prayer for adjournment to file counter affidavit. The Court queried if the counter affidavit could bring in materials beyond the impugned orders dated 2.1.2006 and 6.4.2009. Learned Counsel for the State conceded that the orders will have to be tested on the basis of recitals contained therein and those orders could not be supplemented or explained by any counter affidavit. 3 The appellate court in LPA No. 1237/99 preferred against CWJC No. 11800/97 preferred by the petitioner and others while dismissing the LPA granted liberty to the respondents proceed afresh if they so desire. One Ravindra Tiwari who claimed to have been similarly sponsored by the Employment Exchange in response to the same requisition dated 2.6.95 and appointed by the RDDE Tirhut Division was likewise terminated on grounds of irregularities in his appointment. A Bench of this Court in CWJC No. 5003/99 held that his candidature was sponsored through the Employment Exchange and after consideration he came to be appointed and had also passed in the Hindi Noting and Drafting Examination. The termination of his appointment on 10.2.99 was not sustainable since the appointment was made from amongst the candidates sponsored by the Employment Exchange and there were no allegation of malafide or fraud at the hands of the members of the selection committee. The grounds with regard to roster and preparation of panel etc. could not vitiate the candidate with penal consequence for what was essentially fault of the authorities. The question arises whether the petitioner is similarly situated as Ravindra Tiwari or not ?. The appellate court in LPA No. 1237/99 while dismissing the appeal preferred against CWJC No. 11800/97 filed by the petitioner and others did grant liberty to the State to hold fresh enquiry. Para 10 of the appellate court order contained an observation that there was no material on record to suggest that the petitioner inter alia was similarly situated as Ravindra Tiwari 4 inasmuch as he was also sponsored through the Employment Exchange. The fresh show cause notice issued to the petitioner in pursuance of the same on 2.1.2006 required him to state whether he was registered with the Employment Exchange and if so to enclose photo copy of the registration certificate. He was also asked to enclose copy of the interview requisition sent to him. He submitted his reply to the same on 30.1.2006 at Annexure 15. Items 2, 3 and 4 of his reply specifically stated that he was registered with the Employment Exchange and his name was sponsored. Registration certificate was enclosed as an annexure to the show cause. He contended that he was requisitioned for the interview and disclosed details of the letter number and date. By order dated 16.6.2008 the Deputy Director by his order held that no advertisement had been published and roster clearance etc. was not followed. The issue of his being registered with the Employment Exchange, registration certificate being enclosed, his having been called for interview, were matters which did not find any consideration or discussion in the impugned order. In like manner the appellate authority also completely glossed over the assertion of the petitioner that he was registered with the Employment Exchange enclosing his registration certificate and the interview letter issued to him holding that since the appellate court in LPA no. 1237/99 had held that he was not situated at par with Ravindra Tiwari the question of 5 considering any claim on his part of being similarly situated simply does not arise. This Court while exercising review jurisdiction of an administrative order is required to see if there has been miscarriage of justice by arbitrariness in passing of the impugned order. Whether appropriate procedure was followed and opportunity granted to defend. Whether the order was reasoned and took into consideration relevant materials. The order must not exclude relevant consideration and proceed on irrelevant consideration. Such orders shall stand vitiated in law. On the facts of this case, it was the specific assertion of the petitioner in his show cause that he was registered with the Employment Exchange. He came to be appointed on his being sponsored by the Employment Exchange on a request made. He enclosed his registration certificate with the Employment Exchange. He asserted having been called for interview making disclosure with regard to letter number and date. These were very relevant considerations to be considered, decided and then accepted or rejected by the authorities. Instead of dealing with these crucial issues which per se was would have distinguished whether the petitioner was similarly situated as Ravindra Tiwari or not, the original and the appellate authority preferred to ignore the same, to cull out their own reasons by their own interpretation of the orders of this Court much beyond what this Court itself had held. Since the orders have failed to take into consideration relevant materials placed by the petitioner before the authorities 6 the order suffers from the vice of arbitrariness. The factual assertion of the petitioner supported by documentary evidence that he was at par with the case of Ravindra Tiwary stands unrebutted. The impugned orders dated 16.6.2008 and 6./4.2009 are not sustainable and are accordingly set aside. This Court holds that the petitioner is similarly situated as the case of Ravindra Tiwari and is entitled to be accorded similar treatment. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)