IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8888 of 2006 1. DILIP KUMAR RAI son of Sri Mishri Lal Rai, resident of Village and P.O.- Belaha, District- Madhubani. 2. Prashant Priyawar, son of Sri Nand Kishore Pd. Singh, resident of village- Hemjapur, P.O.- Shivkund, District- Munger 3. Pramod Kumar Sah son of Sri Vasudeo Pd. Sah, resident of Mohalla & P.S.- Purabsarai, District- Munger 4. Shubhchandra Rai son of Kusheshwar Rai, resident of Village & P.O. Kharoua, District- Madhubani. 5. Sri Dhrub Pandit son of Sri Jay Narayan Pandit, resident of Mohalla- Dalhatta, Post- Wasudeopur, District- Munger 6. Sujit Kumar son of Bhagwat Prasad, resident of Village- Gopalour, Post- Vidyapatinagar, District- Samastipur. 7. Rajniti Prasad Singh alias Rajniti Prasad son of Late Kailash Prasad Singh, resident of Village- Tilakpur, District- Bhagalpur. 8. Govind Kumar Satyarthi, son of Sri Bhagwat Prasad Yadav, resident of Mohalla- Shyampur, Post- Wasudeopur, District- Munger 9. Lal Kumar Manjhi son of Sri Bachchu Manjhi, resident of Mohalla- Betban Bazar Mushahari, Post & District- Munger 10. Mukesh Kumar son of Sri Ram Bilas Yadav, resident of Village- Pokhariya, Post- Danouli, Phulwariya, District- Begusarai 11. Bablu Kumar son of Sri Ram Khelawan Mandal, resident of Mohalla- Betban Bazar, near Panikal Quarter, District- Munger 12. Birendra Kumar alias Birendra Bind son of Late Karu Vind, resident of Mohalla- Jamamlpur, District- Munger 13. Shikhar Vibhanu, son of Sri Vinod Kumar, resident of Village- Madhopur, Post- Basdeopur, District- Munger 14. Rana Pratap Singh son of Sri Rajendra Prasad, resident of Village- navtoliya, Post- Vindbara, District- Munger 15. Mithalesh Kumar son of Sri Jay Prakash Yadav, resident of Village- Navtoliya, Post- Vindbara, District- Munger 16. Kundan Kumar, son of Sri Sundar Ram Mandal, resident of Mohalla- Purabsarai, Raghubarbabu lane, District- Munger 17. Lalan Kumar Yadav son of Ram Raksha pd. Yadav, resident of Village- Pokhariya, Post- Phulwariya, District- Begusarai. 18. Satish Kumar Singh, son of Late Ratneshwar Pd. Singh, resident of Village- Budhama, Post- Khara, District- Madhepura. 19. Shanichar Bind, son of Sri Bhold Bind, resident of Mohalla- Jamalpur, District- Munger 20. Bablu Kumar son of Medani Prasad, resident of Village- Bichchi Chanchar, District- Munger. ----- Petitioners Versus 1. THE STATE OF BIHAR through the Secretary, Urban Development Department, Govt. of Bihar, New Secretariat, Patna. 2. Deputy Secretary to the Government, Urban Development Department, New Secretariat, Patna. 3. District Magistrate, Munger 4. Executive officer, Nagar Parishad Munger 5. Deokant Diwakar, the then special officer, Munger Municipality, present posted as Deputy Secretary-cum-Chief Vigilance Officer, Vigilance Department, Patna. ----- Respondents. ----------- For the petitioners : Mr. J.P. Shukla, Sr. Advocate. For the S t a t e : Mr. Mohan Kr. Singh, JC to SC I. For the Municipality: Mr. D. K. Sinha. … 2 18 13 -2-2009 The twenty petitioners before this court were Class III and IV employees of the Nagar Parishad, Munger Municipality are aggrieved by the order contained in letter no. 2217, dated 21.6.2006 whereby and whereunder the Deputy Secretary in the Urban Development Department, Bihar has terminated their appointments. The petitioners have also challenged letter no. 269, dated 20.7.2006 issued by the Executive Officer, Nagar Parishad, Munger by which the petitioners have been asked to refund the salary received by them since the date of their appointment in pursuance of letter of termination. The Munger Municipality was dissolved during the period 1998 to May 2002 and a Special Officer was posted to manage the affairs of the Municipality. The petitioners’ case is that the Special Officer advertised certain vacancies for different posts in the Municipality on 22.7.1998 and it is asserted that after the formalities were completed, the petitioners were appointed and they joined their respective posts on 19.11.1999. After joining their posts the petitioners received their salary up to 2001. Thereafter, a representation was made by the petitioners for payment of their salary which culminated in a letter of termination, dated 21.6.2006. It is also specifically stated in the writ petition that the Special Officer had the power to make appointment and manage the affairs of the Municipality. According to the petitioners the vacancies existed at the time they were appointed and there was no ban on the appointment in 3 the Municipality and as such there is no justification for terminating their services. The petitioners claimed that the posts that were vacant were duly advertised and after completing all the formalities, such as, interview etc., the petitioners were issued appointment letters and as such there is no illegality in their appointment. It has been emphasized that before issuing the letter of termination, the principles of natural justice was not followed and the petitioners had no opportunity to present their case before the Government The order of termination was issued on the ground that there was no records which would substantiate that the petitioners were appointed after adhering to the procedure laid down for appointments. Mr. Devendra Pd. Sinha, learned counsel appearing on behalf of the Municipality has relied on certain documents to show that there was a ban by the Urban Development Department, Bihar vide letter no. 3939, dated 20.11.1999 wherein it was stated that the Municipal Corporations should not make any fresh appointment without the sanction of the State Government. It has further been submitted that the procedure with respect to appointment has not been followed. The State Government had made an enquiry with respect to the procedure of appointment and has specifically sought information regarding three issues, namely, whether a merit list was prepared; whether the reservation policy was followed and whether roster clearance was obtained from the State Government before the appointments were made. The queries remained unanswered as the 4 original file with respect to petitioners’ appointment was lost and as such the Government could not verify the aforesaid facts. Apart from the queries made by the State Government through the District Magistrate as well as the municipal authorities, it has been stated that prima facie it would appear that appointments have been made on posts although there was no vacancies available at the relevant time against such posts. It has further been brought on record by way of an affidavit that there were thirty seven vacancies in the Municipality and a break up of such vacancies has been shown which is as follows : Assistants 3 vacancies Typists 1 do Draftsman 1 do Road Jamadars 1 do Peon 2 do (Anusewaks) Safair Karmi 28 do It has been argued that appointment have been made against vacancies which do not exist or against vacancies and posts which did not exist. It is further pointed out that all the petitioners are related to one or the other employees of the Nagar Parishad. In fact a chart has been annexed with the counter affidavit at Annexure ‘H’ which shows the relationship of the appointees to the employees of the Nagar Parishad. Therefore, it has been specifically claimed that the appointments have been made in an illegal and irregular manner. Mr. J. P. Shukla, learned Senior counsel appearing on behalf of the petitioners has submitted that the letter imposing a ban on the municipal authorities to make fresh appointment is, dated 20.11.1999 whereas the process of petitioners’ appointment process 5 began much before that and in fact they were interviewed before any such ban was imposed; the petitioners joined their posts before the issuance of the letter, dated 20.11.1999. I agree to this part of the submissions on behalf of Mr. Shukla that ban imposed by letter, dated 20.11.1999 would not be a good ground for setting aside the appointment of the petitioners provided the petitioners were otherwise appointed in a regular manner following all the procedures as envisaged in various letters of the State Govt. with respect to appointment of persons to Class III and IV posts. The question before this court is whether the petitioners would be entitled to a show cause notice before they were issued letters of termination specially in view of the stand of the State Government that the file with respect to petitioners’ appointment was lost and the municipality could not justify or explain the circumstances surrounding the appointment of the petitioners. The State Government perhaps correctly assumed that the procedure for appointment was not in accordance with law and issued the letter of termination. Several affidavits have been filed before this court giving details regarding the manner of appointment. What weighs heavily in the mind of this court for the purpose of considering whether the appointments were made in accordance with law is the fact that appointments were made against posts which were not vacant or which did not exist. There can be no doubt with respect to this proposition that appointment against vacancies which did not exist could not be held to be a valid 6 appointment. Similarly the petitioners have not been able to deny the chart provided at annexure ‘H’ which shows the relationship of the persons appointed with the employees of the Nagar Parishad except for petitioners 2 and 8 who seem to be not related to any of the employees or ex-employees of the Nagar Parishad. All possible suggestions have been made before this court and while this court acknowledges that natural justice is embedded in all facets of administrative and executive functions, it is difficult to hold that the petitioners should be given an opportunity to be heard in the facts of this case. At this stage it may be relevant to mention that an affidavit was filed on 6.8.2008 by the Executive Officer of the Nagar Parishad wherein it has been stated that the original file was missing but has now been reconstructed and the photo copy of the said record is now available in the office of the Nagar Parishad and, therefore, the Nagar Parishad had an opportunity to examine the files before filing its counter affidavit bringing on record the vacancies etc. as discussed and mentioned above. Learned counsel for the petitioners finally submitted that even if the facts stated are correct, it is the State Government which has issued the order of termination and that too without examining the original file. Therefore, it would serve the purpose of the petitioners if the State Govt. would examine the file which has been so reconstructed by Nagar Parishad, Munger to determine whether the 7 procedure for appointment has been followed and whether the petitioners were appointed against the vacant posts. It is further submitted that the petitioners have no way of knowing whether their appointments were made against vacant posts or not but these facts should be examined by an independent authority, that is, the State Government before the petitioners’ services are terminated. I find that the submissions made on behalf of the petitioners are reasonable and as such I direct the Deputy Secretary, Urban Development Department, Bihar to call for the reconstructed file relating to the petitioners’ appointment and satisfy himself on the issues raised on behalf of the Municipal Corporation that the appointments have been made against non-existing posts, within a period of four months from the date of receipt / production of a copy of this order. The order of termination issued vide letter no. 2217, dated 21.6.2006 by the Deputy Secretary, Urban Development Department, Bihar, Patna shall be kept in abeyance, until he passes a fresh order after examining the issues that have been raised. It is clarified that this would not mean that the petitioners would be entitled to be reinstated. Orders with respect to recovery of the salary paid to the petitioners should also be reconsidered by the State Government. Since this court is passing an order directing the Deputy Secretary, Urban Dev. Department, Bihar to examine the issues raised by the petitioners as mentioned in this order, the petitioners may file 8 any documents they rely on within two weeks before the Deputy Secretary of the Department along with a copy of this order. This writ petition is disposed of with the aforesaid observations and directions. haque (Sheema Ali Khan, J.)