IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9807 of 2002 ---------- In the matter of an application under Article 226 of the Constitution of India. ---------- Suresh Yadav, son of Shri Mahabir Yadav, resident of village- Usarahi- Supaul, P.S. Ghanshyampur, District- Darbhanga ……… Petitioner Versus 1.The State Of Bihar 2.The Director, Secondary Education, Bihar, Patna 3.The Deputy Director, Secondary Education, Patna 4.The District Collector, Darbhanga 5.The Deputy Collector, Establishment, Darbhanga 6.The District Education Officer, Darbhanga 7.The Head Master, Bhagwan Dutt Yadav high School, Pohaddi Bela, P.S. Ghanshyampur, District- Darbhanga …….. Respondents --------- For the Petitioner : Mr.Ganesh Pd.Singh,Sr.Adv. with M/s Ashok Kr.Prasad & Prabhash Ranjan, Adv. For the Respondents: Mr.Sunil Kr.Mandal, S.C.15 with Mr.Bipin Kumar, Adv. --------- P R E S E N T THE HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Heard learned senior counsel for the petitioner and learned counsel for the State. In this writ application, petitioner has challenged order of the then Collector dated 29.12.1999, annexed as Annexure-12, whereby the District Education Officer was directed to cancel the appointment of the petitioner and submit his report. Prayer has also been made for quashing of Annexure- 13, the consequential order dated 5.1.2000 passed by the District Education Officer cancelling appointment of the petitioner as well as Annexure-15 dated 22.2.2002 passed by the Collector, whereby - 2 - representation of the petitioner was considered pursuant to the order of this Court, as contained in Annexure-14, and was rejected. Without going into history of the services of the petitioner in much detail, it can be noticed that petitioner was earlier working on Class IV post as Hostel Peon on ad hoc basis under respondent no.7. It appears that in 1994 petitioner submitted his representation before respondent no.2 for his regular appointment and respondent no.2 forwarded the representation of the petitioner to the District Collector for necessary action. Thereafter, in the process of consideration of preparation of panel in the district for appointment on vacant Class IV posts, District Establishment Committee met on 20.4.1995 under the chairmanship of District Education Officer and resolved to appoint petitioner on Class IV post on regular basis. Pursuant to the said resolution, appointment letter was issued to the petitioner vide Annexure-5 dated 27.4.1995. However, since the Collector had not presided the meeting of the District Establishment Committee, the District Education Officer placed the entire matter with the details of letters received and decision taken in the matter of the petitioner before the Collector vide Annexure-10 dated 27.6.1996. Annexure-11, a communication sent to the District Education Officer vide letter no.1204 dated 2.9.1996 under the signature of the Establishment Deputy Collector, shows that the said letter of the District Education - 3 - Officer dated 27.6.1996 and the entire records were examined by the Collector and he, by his order dated 23.8.1996, being satisfied with the processes adopted, allowed resumption of payment of salary of the petitioner which was stopped by an earlier communication dated 31.10.1995 of the office of the Collector. This document shows that the Collector, who was the ex-officio Chairman of the District Establishment Committee, on enquiry, was satisfied with the procedure adopted for regular appointment of the petitioner and therefore, he passed orders for resumption of payment of salary of the petitioner. However, it appears that after more than three years, matter was again raked up and the Collector issued a letter dated 29.12.1999 (Annexure-12) to the District Education Officer, in which he noticed certain irregularities in the appointment of the petitioner and directed for cancellation of his appointment. Consequential orders were issued by the District Education Officer vide impugned Annexure-13 dated 5.1.2000. Against the said order, petitioner moved this Court through C.W.J.C.No.359 of 2001, which was disposed of by order dated 11.1.2001 vide Annexure- 14. While disposing of the writ application, this Court noticed the stand of the petitioner that there was a meeting of the District Establishment Committee on 20.4.1995, pursuant to which, order as contained in Annexure-5 was issued. In view of the said submission of learned counsel for the petitioner, this Court came to the conclusion that the stand of - 4 - the District Magistrate in his letter that there was no meeting of the District Establishment Committee might be factually wrong. This Court also found that before issuing order of termination, no opportunity was given to the petitioner. Therefore, matter was remitted back to the District Magistrate to verify from the records including letter contained in Annexure-5 and it was observed that in case it is established that the name of the petitioner was recommended by the District Establishment Committee, the impugned order was to be recalled. In compliance to the said order of this Court, matter was again considered by the then Collector and he found that the name of the petitioner had not been recommended by the District Establishment Committee constituted under the chairmanship of the Collector and therefore, earlier order passed in the matter vide Annexure-12 was correct. The representation of the petitioner was accordingly rejected vide Annexure-15. Learned senior counsel for the petitioner submits that Annexures-10 and 11 are conclusive documents to establish that there was meeting of the District Establishment Committee and the matter was referred to the Collector for his approval which he accorded after making a thorough enquiry of the records. He submits that after due enquiry, final order was passed by the Collector which was communicated to the District Education Officer vide Annexure-11. It was not open to the successor - 5 - District Magistrate/ Collector to reopen the matter and come to a finding that the appointment of the petitioner was made without any proper recommendation of the District Establishment Committee. He submits that in the circumstances, impugned Annexures-12, 13 and 15 have been issued on non est grounds and are fit to be quashed. A show cause has been filed in the case by the then District Magistrate, in which, in nutshell, stand has been taken that the Establishment Committee constituted under the chairmanship of the Collector had not resolved for appointment of petitioner and therefore, petitioner’s appointment was bad in law. Referring to paragraph 12 of the show cause, learned counsel for the State submits that the appointment on Class IV posts in the District could be made only from a panel prepared by the District Establishment Committee which was not done in this case and therefore, appointment of the petitioner by Annexure- 5 was bad in law. Referring to paragraph 15 of the show cause, he submitted that in a district for appointment on Class IV posts there is only one District Establishment Committee under the chairmanship of the Collector and no other Establishment Committee is authorized to take any decision in the matter. It was also submitted that the present District Establishment Committee never recommended the name of the petitioner for his appointment. During the course of hearing of the case, - 6 - learned counsel for the respondents was confronted by this Court with the pleadings made by the petitioner in paragraphs 13 and 14 of the writ application and Annexures-10 and 11. It appears that the pleadings made by the petitioner in paragraphs 13 and 14 and Annexures- 10 and 11 have not been dealt with in the show cause. In the circumstances, the fact that the District Establishment Committee had resolved in its meeting for appointment of the petitioner does not stand disputed. Annexure-10 shows that the meeting of the Establishment Committee was convened by the District Education Officer in the light of the letters received by him from the Department and the orders of the Collector directing him to do the needful in the matter of the petitioner. From Annexure-10 it is established that in the meeting of the District Establishment Committee it was resolved to appoint petitioner on regular basis. This also appears that since the Collector was not presiding the meeting on that day, he passed orders for stopping of salary of the petitioner by his letter no.1203 dated 31.10.1995 and called for a report from the District Education Officer. Accordingly, the District Education Officer submitted his report along with other relevant records. Annexure-11 establishes that the report of the District Education Officer and other relevant records, namely, Proceeding Book of the District Establishment Committee were examined by the Collector and being satisfied with the decision taken in the matter of the petitioner by the - 7 - Establishment Committee presided over by the District Education Officer, he passed orders on 23.8.1996 for resumption of payment of salary of the petitioner. This shows that after full enquiry, final decision was taken by the then Collector in the matter of regular appointment of the petitioner on the basis of recommendation of the District Establishment Committee. There may be some procedural irregularities in holding the meeting since the same was not presided over by the Collector but the fact that the same was finally approved by the Collector gives a seal to its validity. Thus the matter was fully examined and finally stood concluded by the order of the then Collector dated 23.8.1996. It appears that while issuing impugned orders, as contained in Annexures-12 and 15, the then Collector had not at all cared to look into the exercise made by the earlier Collector in the matter of appointment of the petitioner and the orders passed on 23.8.1996. In the circumstances, it is apparent that since once the matter of the petitioner was finally concluded by the order of the then Collector dated 23.8.1996, it was not open to his successor in office to rake up the matter again and give a contrary finding against the validity of appointment of the petitioner. It is also apparent that the successor Collector had failed to examine the records in this connection and had failed to notice earlier enquiry made by his predecessor and orders passed by him. - 8 - Submission of learned counsel for the respondents that the District Establishment Committee headed by the District Education Officer was not competent to take a decision stands answered by the approval of the said decision of the District Establishment Committee by the Collector vide Annexure-11. This Court has already expressed its view earlier that there may be some procedural irregularity in the meeting of the District Establishment Committee presided over by the District Education Officer, but, since the matter was referred to the Collector, who was the ex-officio Chairman of the Establishment Committee, and after thorough examination he approved the same, the said procedural irregularity stands rectified. In the circumstances, this Court comes to the conclusion that after final decision of the then Collector as communicated by Annexure-11, it was not open to the successor Collector to rake up the matter of appointment of the petitioner afresh and thus the impugned order, as contained in Annexure-12, is not sustainable and is hereby quashed. Resultantly, follow up orders, as contained in Annexure-13 and 15 are also quashed. As a result, petitioner will be deemed to be in service pursuant to the decision of the Collector, as contained in Annexure-11 from the date of issue of Annexure-13. Learned counsel for the State submits that since petitioner has remained out of service, he - 9 - should not be held entitled for payment of his salary as the salary of about ten years to the petitioner without any work being performed by him will be too onerous a burden on the State Exchequer. In reply, learned counsel for the petitioner submits that petitioner was out of service for no fault of his and therefore, he should be made entitled to full salary of the period. From the facts of the case, it appears that due to bonafide dispute with regard to approval of service of the petitioner, subsequent orders were passed by the Collector which cannot be held malafide or deliberate act on their part. In such a situation, it will not be appropriate to hold petitioner entitled for his full salary. However, to compensate petitioner for remaining out of service for the past ten years, this Court allows 25% salary to the petitioner of the period. Apart from this, petitioner shall be entitled to all other service benefits treating him as continuing in service uninterruptedly from the date of issue of Annexure-13. Patna High Court 7th October, 2009 N.A.F.R./Pradeep (Jayanandan Singh, J.)