IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2419 of 1997 1. Sanjay Kumar, son of Shri Gopal Prasad Singh, Resident of Village Sowal, P.S. Tekari, District Gaya, at present posted as Clerk in the office of Regional Education Officer, Sherghati, under Gaya district. 2. Surendra Kumar, Son of Shri Bindeshwawr Singh, Resident of Village Chakiya, P.S. Paliganj, District Patna, at present posted as Clerk in the office of Sub-Divisional Education Officer, Nawadah. 3. Suresh Kumar Pradeep, Son of Shri Parmeshwar Dayal, Resident of Village Lond, P.S. Shridala, District Nawadah, at present posted as Clerk in the office of District Superintendent of Education, Nawadah. 4. Mohan Paswan, Son of Shri Job Lal Paswan, resident of village Jaitopur, P.S. Kawa, District Nalanda at Biharsharif, at present posted as Clerk in the office of District Education and Training Institute Tarar at Aurangabad. -------- Petitioners Versus 1. The State of Bihar. 2. The Director, Secondary Education, New Secretariat, Patna. 3. The Regional Deputy Director of Education, Magadh Division, Gaya. ---------- Respondents With CWJC No.2420 of 1997 1. Ram Sagar Paswan, Son of Shri Ram Krishna Paswan, Resident of Village Lohanda, P.S. Hilsa, District Nalanda, at present posted as clerk in the office of Primary Teachers Education College, Tarar (Daudnagar), District Aurangabad. 2. Manoj Kumar, Son of Shri Yamuna Singh, Resident of Village Gangti, P.S. Belaganj, District Gaya, at present posted as Clerk in the office of the District Education Officer, Aurangabad. ---------- Petitioners Versus 1. The State of Bihar. 2. The Education Commissioner-cum-Secretary, Department of Secondary, Primary and Adult Education, Vikash Bhawan, Bailey Road, Patna. 3. The Director, Secondary Education, Vikash Bhawan, Bailey Road, Patna. 4. The Regional Deputy Director of Education, Magadh Division, Gaya. 5. The District Education Officer, Aurangabad. 6. The Principal, Primary Teachers Education College, Tarar (Daudnagar), District Aurangabad. ----------- Respondents With CWJC No.1204 of 2002 2 Shambhu Prasad Yadav, Son of Sri Shankar Prasad Yadav, Resident of Mohalla Godawari, Chand Chaura, Police Station Civil Line, Town and District Gaya. ----------- Petitioner Versus 1. The State of Bihar. 2. The Director, Secondary Education, New Secretariat, Patna. 3. The Regional Deputy Director of Education, Magadh Division, Gaya. ---------- Respondents ----------- 4 13.07.2010 Heard learned counsel for the petitioners and Counsel for the States in all the three aforementioned cases. In all these three writ applications, seven petitioners in all, have assailed the same order dated 31.12.1996 seeking to terminate the services of all such Class-III and Class-IV as also other Teachers who were earlier appointed by one Ram Yatan Paswan, the then Regional Deputy Director of Education, Magadh Division, Gaya. They have also assailed an order dated 14.2.1997 containing list of 21 Clerks including the petitioners in these three cases, whose payment of salary had been kept in abeyance till further enquiry as with regard to alleged illegality in their appointment. Mr. Ganesh Prasad Singh, learned senior counsel, would submit that there is no 3 specific order terminating the services of the petitioners and a blanket order of termination like the present one dated 31.12.1996 cannot be sustained in the eye of law specially when all the petitioners were appointed by a separate appointment letter. He has further submitted that the order of termination passed without notice and/or affording opportunity of personal hearing is patently illegal. He has further taken great pains to establish that the petitioners were actually appointed in the prescribed manner by requisitioning the names from employment exchange followed by interview and typing test and a decision of the Divisional Establishment Committee. He would further submit that the decision of the authority, the successor in office of the persons who had appointed the petitioners, is based on his own prejudice and in fact is based on such grounds which are contrary to the materials on record. Learned counsels for the State in all these three cases by referring to the counter affidavit filed by the R.D.D.E., 4 Magadh Division, Gaya have tried to establish that the appointment of the all petitioners was made in complete violation of the rules and procedure meant for appointment of Clerks in the office of the Education Department. They have in this context pointed out that there was no advertisement in the newspaper and the story of requisitioning the names through employment exchange also does not get support at least from any record available in the office of the R.D.D.E., Gaya. They have also highlighted that the alleged story of requisitioning the names through employment exchange or convening of meeting of the Establishment Committee or interview and selection of the petitioners through the committee is a hoax, inasmuch as, own relatives of Ram Yatan Paswan and/or the members of the Establishment Committee were only selected and appointed. Upon considering the aforementioned submissions as also perusing the materials on record, this Court is of the opinion that the appointment of the petitioners made by one Ram Yatan Paswan, the then Regional Deputy 5 Director of Education, Magadh Division, Gaya in between August, 1994 to December, 1995 were not only out and out illegal but also tainted with malice and fraud. For coming to such conclusion, this Court has perused the entire materials on record which depict a very sad state of affairs. In this context what really strikes at the root of the matter is the alleged claim of manner of appointment of the petitioners, inasmuch as, on 22nd July, 1994 the process of selection is said to have started by issuance of a letter of interview to the petitioners fixing the date of such interview on 28.7.1994. The said letters are claimed to have been issued from the office of R.D.D.E., Gaya and has been allegedly sent to the petitioners stationed ad different places in the district of Gaya, Jehanabad, Nalanda, Patna and Nawada. All such interview call letters have been claimed to be sent by UPC (under postal certificate) as is apparent from one of them Annexure-1 in CWJC No. 2420 of 1997. Such interview was also confined to only 12 persons and therefore, whenever a question of illegality 6 would arise, a basic question would be as to whether the employment exchange of Gaya had actually been approached by the R.D.D.E. Gaya by way of any requisition for sending the names and whether the R.D.D.E. had received such requisitioned names from employment exchange, Gaya. It is the affidavit of successor in the office of Ram Yatan Paswan, the R.D.D.E., Gaya who had appointed the petitioners that there was not a chit of paper of entire selection of the petitioners available in his office. If this aspect of the matter is further examined in the backdrop of the manner of appointment, it becomes absolutely clear that the documents were manufactured by Mr. Ram Yatan Paswan, the then R.D.D.E., Gaya to justify such perverse selection and appointment of the petitioners. This in fact becomes more clear from the documents filed by the petitioners themselves that prior to 22.7.1994 when the interview call letter was issued by Mr. Ram Yatan Paswan in his individual capacity, the matter relating to their appointment was never placed before the 7 Divisional Establishment Committee which is the appointing authority under the 1974 Rules. In fact, from reading of the letter dated 23.7.1994, it would transpire that the agenda for a meeting of the committee to be held on 29.7.1994 was drawn in which there was also one of the items relating to appointment on the post of Clerk. From the merit list prepared by the R.D.D.E. in the date of 29.7.1994 containing the signature of all the members of the committee, it however becomes clear that since typing test was held in their presence, either the selection was held at Gaya on 28.7.1994 whereas the interview itself was fixed for 29.7.1994. The meeting of the Committee was said to be however held at Kakolat, at least 100 kilometers away from Gaya and therefore both of them cannot be correct, inasmuch as, the petitioners and other candidates, 12 in all, had admittedly no information through their interview call letter dated 22.7.1994 about the meeting of the Establishment Committee or selection being undertaken at Kakolat and the members of the Establishment Committee had no 8 knowledge of selection being made at Gaya because their notice dated 23.7.1994 as contained in Annexure-2 would only go to show the venue of meeting at Kakolat, Dak Banglow. Thus, it becomes absolutely clear to this Court clear that the entire story starting from interview call letter dated 22.7.1994 and ending with the meeting of committee on 29.7.1994 in which the entire exercise sending of interview call letter and up to preparation of merit list had been completed in a space of seven days only by process of manufacturing the documents for espousing the cause of these seven petitioners. In this context, it has been categorically asserted by the respondents in their counter affidavit that the petitioners are the relatives of the members of the of the Establishment Committee who had attended meeting on 29.7.1994, inasmuch as, it has been asserted that the petitioner nos. 2 & 3 are sons of District Education Officer, Nawadah and Gaya respectively whereas petitioner no.4 was the brother-in-law of Mr. Ram Yatan Paswan, the then Regional Deputy 9 Director of Education. Similarly, proximity of petitioner no.1 with the R.D.D.E., Magadh Division, Gaya has also been clearly alleged by the successor, R.D.D.E. All these aspects though categorically asserted in paragraph no.4 of the counter affidavit of CWJC No. 2419 of 1997 have only been answered by the petitioner by way of being wrong and misleading. Nothing has been said with regard to the relationship as alleged by the respondents in their counter affidavit and in fact to be fair to both the parties, this Court would like to extract paragraph no. 4 of the counter affidavit as also paragraph no.4 of the rejoinder affidavit, which reads as follows:- “4. That referring to paragraph nos. 1 & 4 to 7, 8, 11, 12 and 14 of the instant writ application, the deponent humbly submits that the service of the petitioners has been terminated by the decision of Divisional Establishment Committee of dated 28.12.1996 because the appointment of the petitioner is illegal, irregular, and forge as same was made without following the procedure of the appointment. In fact they have got appointment illegally in connivance with the 10 then Regional Deputy Director namely Sri Ram Yatan Paswan. It is relevant to mention here is that there was no decision of the Divisional Level Establishment Committee, neither on 29/7/1994 nor on any other date regarding such appointment. No advertisement was made for the said appointment but then Regional Deputy Director of Education, interviewed and issued appointment letter to the petitioners along with some other/others at his own personnel level. In this regard no record of roaster clearance, interview, panel, appointment etc. of the petitioners are available in the office of the deponent (Respondent no.3). After joining of the deponent in the office as soon as it was deducted that petitioners and some others have been appointed illegally and without following the procedure of the appointment. Then deponent placed the matter before the establishment committee in its meeting dated 28.12.1996 and the committee after examine the matter decided to remove all such appointee from service who were appointed by the then Regional Deputy Director namely Sri Ram Yatan Paswan and ordered to this effect has been issued on 31.12.96 and copies of the same forwarded to all authorities concerned for 11 necessary action. It is also relevant to mention here is that in view of the letter no. 50 dated 30/1/1997 of the Commissioner, Magadh Division, Gaya the deponent asked the authority concerned to send the attested copies of the appointment letter of the petitioners and other within a week. And also directed to stop the payment of salary till further order. It is further submitted that the appointment of the petitioners which have been shown in Annexure „4‟ of the writ application, are the relatives of the members of the said meeting of the Establishment Committee of dated 29/7/1994, which have been annexed by the petitioners. As for example the petitioner nos. 2 & 3 is the son of District Education Officer, Nawadah and Gaya respectively and petitioner no.4 is the Brother-in- law of the then Regional Deputy Director of Education, Magadh Division, Gaya named Sri Ram Yatan Paswan who was the Chairman of the said Establishment Committee and petitioner no.1, Mr. Sanjay Kumar is also connected with the then said Regional Deputy Director of Education, Magadh Divisiion, Gaya. All the appointment of the petitioners is fake and forge due to violating the Government 12 circulars and non maintance of any procedure Director of Secondary Education Cum-Special Secretary, Bihar, Patna has also terminated the fake service of the petitioner no.2 with the observation that his service is fake and done with the violating of the Government circular. It is further submitted that the petitioners have already been terminated and there is no question of payment of salary to the petitioners. In the facts and circumstances it is clear appeared that the instant writ petition is not maintainable in the eye of law and it is fit to be dismissed at the stage of “Admission” itself.” The petitioners in the rejoinder affidavit while replying the aforesaid statement have stated that:- “4. That in reply to the statement made at paragraph no.4 of the counter- affidavit under reference, the petitioners most humbly submit that the statements are wrong and misleading. The fact of the fact is that the petitioner were appointed by the recommendation of the Divisional Establishment Committee on 29.7.1994 by Annexure 3 of the writ application after following the procedure of legal and valid 13 appointment but the termination order of the petitioners has been passed on 28.12.1996 by the Divisional Establishment Committee on pick and choose policy while several persons have still been continuing in their service like the petitioners. It is further stated that illegality and arbitrarily pay of twenty one (21) persons were stopped by Annexure-7 of the writ application, but, in fact, thereafter, they have been terminated illegally without complying with principle of natural justice. It is further submitted in reply to sub-paragraph 4 of the paragraph no.4 of the counter- affidavit that the respondent no.3 has admitted/accepted that the said meeting of the Divisional Establishment Committee was held on 29.7.1994 whereby the petitioners were appointed.” It thus becomes clear that there was no requisition sent to employment exchange nor any list of 12 candidates was sent by the Employment Exchange to R.D.D.E., Gaya. Added to it when there was also no advertisement and selection process undergone, the appointment of the petitioners on the basis of the fake interview call letter through the 14 committee in which each member had his a vested interest has to be held a classical example of nepotism resorted to by Ram Yatan Paswan, the then R.D.D.E., Gaya. Once this Court would find that the authority, the successor of the office of Mr. Ram Yatan Paswan, who admittedly remained in the office till December, 1995 in view of the appointment letter issued in the name of the petitioner Shambhu Prasad Yadav on 31.12.1995 and it had been found that a large number of appointments were made by Mr. Paswan without following the prescribed procedure meant for appointment of Class-III & IV post and/or in the post of Teachers, the decision taken by his successor by way of a general decision terminating the services of such persons cannot be faulted in law. In any event, the petitioners have not been prejudiced inasmuch as, they have challenged such order dated 31.12.1996 treating it to be their termination letter before this Court and have also accepted this fact that the termination letter had come into force in the month of January, 1997. 15 A question would, therefore, arise as to what rights the petitioners had acquired on the basis of these absolutely rank illegal appointments so as to be conferred the protection of the principle of natural justice. This aspect of the matter, in fact, has been dealt recently by the Apex Court in the case of Md. Ashif & Ors. Vs. State of Bihar & Ors. reported in 2010(2)PLJR 156 (SC) wherein following the ratio of the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors. reported in 2006(4)SCC 1 and State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009(5)SCC 65 it has held that no right actually accrues to a person whose appointment is found ab initio void on account of its being in teeth of mandate of Article 14 & 16 of the Constitution of India. This Court, therefore, when has come to the findings that the appointment of the petitioner was rank illegal, their alleged continuance in service for a period of around two years had not clothed them with any right so as to claim reinstatement on account of 16 violation of natural justice. The principle of natural justice cannot be circumscribed in a straight jacket formula and has to be tailored as per the facts of each case. In the present case, as this Court has found the appointment of the petitioners to be rank illegal and in fact ab initio void, there would be nothing left for this Court to now give an opportunity to them for reconsideration of their cases by way of compliance of natural justice. That being so, this Court does find any merit in all these three writ petitions and the same are hereby dismissed. Rsh (Mihir Kumar Jha, J.)