IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11375 of 2008 DINESH THAKUR Versus THE STATE OF BIHAR & ORS with CWJC No.11758 of 2008 SHASHI KUMAR CHOUDHARY Versus THE STATE OF BIHAR & ORS with CWJC No.11462 of 2008 KRISHNA KUMAR JHA Versus THE STATE OF BIHAR & ORS with CWJC No.18859 of 2008 KISHORE KUMAR JHA Versus THE STATE OF BIHAR & ORS with CWJC No.11481 of 2008 KRIPANAND JHA Versus THE STATE OF BIHAR & ORS ----------- 2. 24.03.2009 Heard learned counsel for the petitioners and learned counsel for the State. This batch of writ applications had been clubbed together on motion made by the counsel for the petitioners that they raised common questions of law for determination. When the matters were taken up in some of the cases, learned counsel for the State submitted that some of the writ petitions could be different on facts 2 inasmuch as there had been no publication of any advertisement. Invariably in a common order disposing off a batch of writ petitions possibility of differences in claims and facts cannot be ruled out. By inadvertent inclusion of such writ petitions, that may be different on facts and hence the common issue of law decided may not apply. Liberty is, therefore, granted to the State to examine the facts of the individual cases and then to consider the grant of the benefit of the present order to the petitioners in that light on the issue of law. The matter relates to appointment on Class III and Class IV posts in Project Schools during the phase 1984-85 to 1988-89. The common thread running through this batch of writ petitions as claimed on behalf of the petitioners is the publication of an advertisement followed by selection on comparative merits by a Selection Committee. It is, therefore, apparent that if in any writ petitions the impugned order does not consider the publication of the advertisement and consideration by the Selection Committee, it shall fall outside the purview on facts and the issue of law determined by the present order. This Court shall refer to the facts of CWJC No. 11375 of 2008 for the sake of convenience. An 3 advertisement was published on 1.2.1988 for appointment. The petitioner applied in response to the same on 30.7.1988. Pursuant to his selection, he started discharging his duties when salary was stopped on 4.6.1999. He came to this Court in CWJC No. 5928 of 1999. It was his specific case that an advertisement was published in a local daily “Aaj” on 1.2.1988 and that he came to be appointed on the recommendation of the Divisional Establishment Committee dated 29.6.1988. The stoppage of salary being in violation of the principles of natural justice, this Court set aside the order and remanded the matter. By an order dated 17.8.1999, his salary was ordered to be released. The matter was then referred to a three man committee to examine the appointments so made in the Project Schools. The three man committee made a recommendation of the legality of the appointments. Nonetheless salary was again stopped on 1.8.2003 and services were terminated on 14.1.2004 in pursuance of a second enquiry on the legality of the appointments. Several writ petitions were filed before this Court, which included the petitioner, disposed off on 6.7.2005 in CWJC No. 12302 of 2003 and analogous cases. This related to both teaching and non-teaching staff of Project Schools. This Court noticed the objection of the State that the appointment letter was required to 4 be issued only by the District Education Officer. It further noticed that a three man committee appointed earlier under the chairmanship of the Regional Deputy Director of Education consisting of District Education Officer and District Inspectors of School as members, recommended that all the teachers have been regularly appointed. The Court observed, “if that was the report, the matter should perhaps have come to an end.” Unfortunately, the matter was sought to be reopened. The Court posed the question, “is it not futile”. The termination orders were quashed. The matter then traveled in L.P.A. No. 1362 of 2005 and analogous cases. The Division Bench issued directions for constitution of a committee of three Secretaries to examine the appointment and then take a decision with regard to the continuance or otherwise in light of the observations in paragraph 53 of the judgment of the Supreme Court in Secretary, State of Karnataka and others v. Uma Devi & others, reported in (2006) 4 SCC 1. This Court considers it proper to quote paragraph 53 in its entirety. “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N.Nagarajan and referred to in para 5 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. “ 6 The fresh impugned order of termination dated 27.5.2008 has followed thereafter. Learned counsel for the petitioners submitted that they have been appointed after an advertisement and a process of selection by the Divisional Establishment Committee. The validity of their appointment has already been examined by a three man committee and on which basis CWJC No. 12302 of 2003 and analogous cases came to be allowed. The petitioners cannot be put in the precarious situation of repeated termination orders. The fresh impugned order of termination dated 27.5.2008 does not at all deal with the recommendation of earlier three man committee, which found favour with this Court in CWJC No. 12302 of 2003 and analogous cases. From paragraph 8 of the impugned order, it is apparent that even if the contention therein be correct, it was a case of an irregular appointment and not an illegal appointment. This is exactly what the Respondents were required to consider in the background of paragraph 53 of the judgment of Uma Devi considering their long continuance since 1988. Reliance has further been placed on (2001) 6 SCC 292 (K.A. Abdul Majeed v. State of Kerala & ors.) Counsel for the State submitted that from paragraph 8 of the impugned order, it was apparent that 7 the appointment was illegal. The earlier report of the three man committee lost its relevance, in view of the order of the Division Bench referring the matter to a fresh committee. The impugned order is reasoned of the illegalities found in the appointment. There is no error in decision making process when the petitioners have had a fair opportunity to present their case. This Court should, therefore, refrain from interfering with the impugned order. In the case of K.A. Abdul Majeed (supra), the contention on behalf of the Respondents was that the appointment of the appellant was through backdoor whereas the private respondents had been appointed through Public Service Commission, which was the proper mode of selection and appointment and, therefore, the appellant could not have the benefit of such an illegal appointment. The appellant urged that he had the requisite qualification. An advertisement has been issued and he had been appointed after selection. After such appointment, more than seven years later, the authorities making the appointment could not urge the appointment to be invalid. The Court in the relevant extract at paragraph 8 of the judgment has held as follows : “It is an admitted position that the post was 8 advertised by GCDA and the appellant possessed all the qualifications as shown in the advertisement. He was duly selected and appointed. “ The conclusion was recorded in paragraph 9 as follows : “As the appellant was appointed after the post was advertised and he was duly selected before appointment, it cannot be said that the appointment of the appellant was through the backdoor and, therefore, we reject the contention of Mr. Sukumaran, learned senior counsel. “ The requirement of an advertisement for purposes of appointment is a substantive matter. The issue of the reservation roster thereafter is a procedural matter. If a person applied in response to an advertisement and he has no role or opportunity with regard to the reservation roster, can he be penalized or visited with consequences for the responsibility and fault of those who had the role for the implementation of the reservation roster. The answer shall be no, unless the allegations being of collusion and conspiracy. This Court has no hesitation in holding that at best it may be a case of an irregular appointment but certainly not an outright illegal appointment. From the impugned order, it is also apparent that an advertisement 9 has been published. What the order says is that the advertisement was for Clerks in the Regional office and not for Project Schools. The fact that the petitioners applied in response to this advertisement and were considered by the Divisional Establishment Committee is not denied. Therefore, the petitioners appeared in response to an advertisement, underwent a selection process of comparative assessment of merits and then came to be appointed. The impugned order then refers that the Selection Committee was not properly constituted inasmuch as while the selection committee of the petitioners consisted of the Regional Deputy Director of Education as the Chairman, District Education Officer and District Inspectors of School as members. Under a circular dated 3.12.1980, the committee should have been headed by the head of the district (District Magistrate). The competent authority to appoint was the District Education Officer and not the Regional Deputy Director of Education. This Court has already noticed earlier from the order of CWJC No. 12302 of 2003 and analogous cases that appointments were made by the District Education Officer and the Regional Deputy Director of Education. The Regional Deputy Director of Education is an officer superior in rank to the District Education Officer. 10 The Division Bench in L.P.A. No. 1362 of 2005 and analogous cases noticed that a three man committee first appointed for verification, whether the appointments were regular or not found most of the petitioners eligible and regular. A direction was issued by the Division Bench for cross-check and verification in view of a subsequent contrary report when fresh orders of termination followed. The long continuance urged on behalf of the petitioners was also noticed. The Division bench then went on to consider the claims in the background of observations made in the case of Uma Devi on the issue of regularization, in the background of the earlier three man committee report. The Division Bench observed as follows : “The question as to whether the appointments of the original writ petitioners as teaching and non- teaching staff in the schools in various Blocks in the State of Bihar, are regular, legal and in accordance with Rules or not has been considered by the State Government. One committee appointed by the Government found that the appointments were legal and valid. Whereas, the other committee took a diametrically opposite view and found that their appointments were not legal, valid and in consonance with the provision of recruitment Rules. There are certain questions which 11 require some factual probe. “ It is apparent that the report of the earlier three man committee upholding the validity of the appointments was not found to be erroneous or bad by the Division Bench. This report continued to remain alive with all its force when the matter was referred to a new committee by the Division bench when it opined that in view of the two conflicting reports a factual probe may be required. Assuming for the sake of argument as urged on behalf of the State that the earlier three man committee report merged into the order of the Division Bench, this Court is satisfied that in terms of the order of the Division Bench, the Respondents were required to consider and discuss the earlier three man committee report, the errors therein not noticed earlier, and the reasons for which the earlier report was not acceptable after disclosure of materials to the petitioners before depriving them of the benefit of the earlier report of the legality of their appointment. The State Government shall be held bound to the standards by which it professes to act. Reasonableness and fairness are hallmarks of Government action. Surely, the Government could have rejected the report of the earlier three man committee, but only after a discussion and consideration of the 12 errors therein. The Division Bench did not give a carte blanche to the Respondents but required them to act in a particular manner. Fairness and reasonableness on the part of the Respondents required them to fairly deal with the earlier report and then for reasons discussed arrived at the conclusion that it was not acceptable. The Respondents cannot be permitted to act arbitrarily by simply ignoring the earlier enquiry report only because they found it inconvenient to deal with. This discussion shall have been the heart of the order, when this Court may have declined interference. To hold otherwise shall go against the dictum that there has to be finality in the Government orders. A wrong order would certainly not bind the Government. But then there has to be a determination of a wrong order. To hold otherwise would be giving an opportunity to the State officials when successive Officers may reopen the decisions taken by their predecessor. Finality and continuity are the hallmarks of a Government order and a Government action. In absence of the same, the order becomes arbitrary. In A.I.R. 1937 Privy Council 27 (R.T. Rangachari v. Secretary of State), the appellant was a Sub-Inspector of Police. Two courses were under consideration for his conduct. (A) Disciplinary action 13 such as dismissal on the one hand and on the other retirement for health reasons on pension. After consideration he was allowed to retire on grounds of health and that an invalid pension should be awarded to him. A subsequent Government officer sought to question this on irregularity of procedure when a grant of pension was annulled and the appellant removed from service from the date he was declared invalid and granted invalid pension. The Court at page 29 of the judgment held as follows : „ In these circumstances, the case becomes a case in which after Government officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is ineffective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. „ Both the courts below held that the appellant had every right to complain of the stoppage of the pension which found favour of the privy council. In 1998 (1) PLJR 622 (Brij Mohan Prasad & anr. V. Bihar State Electricity Board & ors.), this Court was considering the issue of fresh charges in a departmental proceeding, when on the same charges the enquiry officer had already submitted a report of 14 exoneration. The Court at paragraph 35 of the judgment held as follows : „35. The matter can be looked at from another angle also. It has been held by the Supreme Court in Jai Singhani‟s case reported in A.I.R.1967 S.C. Page 1427 that predictability is the very essence of the rule of law. A citizen must know where does he stand and it is this predictability in executive function which ensures the absence of arbitrariness.‟ This Court would have, therefore, easily set aside the impugned order dated 27.5.2008 on the simple reasoning that the same is in teeth of the earlier three man committee report of the legality of the appointment which remains undisturbed even today. Regularization is not a mode of appointment. It is only a method of curing an irregularity. If there has been substantive compliance of the procedures of appointment, though not stricto senso compliance, the appointment shall fall in the category of irregular appointment, which may be remedied keeping in mind certain factors. The striking features of the present case are the admission by the Respondents of the advertisement, inviting of applications, a comparative assessment of merits and then selection of candidates. Once the constitution of a committee, the Divisional 15 Establishment Committee, is not in dispute, that it was headed by the Regional Deputy Director or the District Education Officer, who may have been members therein only and the committee should have been headed by the District Magistrate only, makes the committee irregular and not illegal. Likewise, if the appointment order has been issued by the Regional Deputy Director of Education also, who is superior in the rank to the District Education Officer, it was at best an irregular appointment, if it be so, having been issued by a superior authority. It has been noticed above that some of the appointments have been made by the District Education Officer. This Court arrives at the conclusion that the appointment was at best irregular for which sustenance is drawn from the judgment in the case of K.A. Abdul Majeed (supra) relied upon by the petitioners. Once this Court arrives at the conclusion that the appointment was irregular even as per the case of the Respondents in the impugned order, of the petitioners being continued since 1988 or likewise for long duration, paragraph 53 of the judgment of Uma Devi, noticed above, applies with full force. It has been held therein that those, who have been working on sanctioned post for more than 10 years without intervention of court‟s order 16 or tribunals, may be considered for regularization as a one time measure. A person coming for salary to this Court when the Respondents do not raise objection with regard to the illegality of appointment, does not continue in service under the umbrella of protection under the orders of the Court. Moreso, when the Respondents without questioning the appointment commence payment of salary. This Court finds it peculiar despite the law on illegal and irregular appointments having been discussed by more than one judgment of this Court and the Apex Court, the Respondents persist in holding to the contrary. From the impugned order it appears that the appointment was at best irregular and not illegal, as it is not the case of the Respondents at any stage in the impugned order that the petitioners were not competent, eligible or fit for appointment. The Respondents have completely misdirected themselves in applying the ratio of paragraph 53 of the judgment of Uma Devi. This Court on the basis of the aforesaid discussion is satisfied that the impugned order dated 27.5.2008 is not sustainable. It is, accordingly, set aside. The petitioners shall stand reinstated in service with all consequential benefits. The writ application stands allowed. AKS/ (Navin Sinha, J.) 17