IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1851 of 2008 ANIL KUMAR SINGH, S/O YADUNANDAN PRASAD, R/O VILLAGE-HILSA, P.S.-HILSA, DISTRICT-NALANDA AT BIHARSHARIF. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT, GOVERNMENT OF BIHAR, PATNA. 3. PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR PATNA. 4. REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA. 5. DISTRICT EDUCATION OFFICER, PATNA. 6. HEAD MASTER, STUDENT’S SCIENTIFIC HIGH SCHOOL, KADAM KUAN, PATNA. ……………RESPONDENTS. ----------- For the Petitioner : Mr. Narendra Kumar Jha, Adv. For the State : Mr. A.K. Pandey, GA-9. ----------- 9 07.07.2011 Petitioner has filed this writ application for quashing of an order dated 07.11.2007 (Annexure-5), by which the representation of the petitioner, filed against his order of termination, in the light of an order of this Court, has been rejected by the Principal Secretary. The order of termination has been brought on record by the petitioner through supplementary affidavit as Annexure-7. From the two orders, it appears that the services of the petitioner have been terminated on the ground that his appointment was made by the Regional Deputy Director and 2 not at the district level and in his appointment the procedure prescribed in the Government letters for such appointments had not been followed. Learned counsel for the petitioner submits that the petitioner has been in service of the respondents for the last 23 years. Hence, it was too late for the respondents to allege that his appointment was irregular. He further submits that the said two orders are absolutely vague as they do not spell out as to in what manner the procedure laid down in the Government letters were not followed in the appointment of the petitioner. He submits that in view of the judgments of the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi (3) [2006 (2) PLJR 363 (SC)] and in the case of M.L. Keshri [2010(9) SCC 247] and a judgment of the Division Bench of this Court dated 29.03.2011 passed in LPA No.230 of 2011 and other analogous cases all infractions of the procedure prescribed in the Government letters cannot be automatically held as illegal. Therefore, it has to be specifically alleged and established that a particular step 3 prescribed in the Government letters or rules of the Government which was not followed in the appointment of the petitioner fell in the category of illegality and not irregularity. Learned counsel for the respondents submits that it has been made clear in the counter affidavit that in the appointment of the petitioner there was no advertisement, there was no selection process and there was no interview. Hence, the appointment of the petitioner fell into the category of illegality. The averments made in the counter affidavit may be correct, but the question is the same has to be specifically put to the petitioner to explain in respect of those infractions in the procedure of his appointment. Neither the show cause nor the two impugned orders shows as to exactly what was not followed in the appointment of the petitioner. In the circumstances, this Court finds it appropriate that the matter of petitioner should be re-considered by the respondents, specially in the light of the said two judgments of the Apex Court and the judgment of the Division Bench of this Court. 4 In the circumstances, the impugned Annexure-5 is quashed. The matter is remitted back to the Principal Secretary of the Human Resources Development Department to consider the case of the petitioner afresh in the light of the above two judgments of the Apex Court and in the light of the Division Bench judgment of this Court as relied upon by learned counsel for the petitioner. Learned counsel for the petitioner submits that in 1984, the petitioner had moved this Court for payment of arrears of salary in which the respondents had appeared and contested. The order passed by this Court in the said writ application is annexed as Annexure-8 with the supplementary affidavit. He submits that, it is clear from the order that, at that stage the respondents did not take a stand before this Court, although they had full opportunity that the appointment of the petitioner was illegal and, therefore, he was not entitled for salary. He also submits that having got one opportunity before this Court to contest the validity of appointment of the petitioner, which the respondents did not avail, principles of estoppel shall apply 5 against them in contending after 23 years that his initial appointment was illegal. Submission of learned counsel for the petitioner may have some substance. Hence, while considering the matter of petitioner the Principal Secretary shall keep this submission of the learned counsel for petitioner also in mind and pass final orders, preferably within a period of three months from the date of receipt/production of a copy of this order. Arvind/ ( J. N. Singh, J.)