IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16537 of 2004 1. Md.Azim son of Md. Abdur Razzaque resident of Mohalla- Bhanwar Pokhar Park view P.S.- Peerbahore, Distt.- Patna. 2. Md. Quasim son of late Abdul Ghani resident of Village- Teenhaiya, P.S.- Dhaka Distt.- East Champaran. 3. Md. Naseer son of Late Md. Abdul resident of Village- Badbigha, P.S.- Bakra Distt.- Nalanda. 4. Md. Kalim, Son of Md. Shakiruddin resident of Village- Chamhera, P.S.- Ekangar Sarai, Distt.- Nalanda, 5. Md. Shahid Alam Son of Md. Mokarram, resident of Village- Hussaina, P.S.- Ballia Distt- Begusarai. 6. Md. Babloo son of Md. Allauddin resident of Mohalla- Chandwara Near Judge‟s Kothi, P.S.- Muzaffarpur town, Distt- Muzaffarpur. Versus 1. The State Of Bihar 2. The Finance Commissioner, Govt. of Bihar, Patna. 3. The Department of Minority Welfare, Patna, Old Secretariat, Distt- Patna through its Secretary. 4. The Secretary, Minority Welfare Department, Old Secretariat, Patna. 5. The Executive Committee, Bihar Urdu Academy, Patna, through its Secretary. 6. The president-Cum-Chief Minister, Executive Committee, Bihar Urdu Academy, Patna. 7. The working President-Cum-Minister, Department of Minority Welfare, Executive Committee, Bihar Urdu Academy, Patna. 8. The Secretary, Executive Committee, Bihar Urdu Academy, Patna. 9. The Bihar Urdu Academy, Patna through its Secretary. Respondent Nos. 5 to 9, Ashoka Rajpath, Chauhatta, P.S.- Peerbahore, Distt.- Patna. ----------- For the Petitioners : M/s Md. Rashid Alam & Md. Anis Akhtar, Advocates For the State : Mr. D.K. Sinha, Sr. Advocate, AAG II ---------- 08. 16.08.2011 The petitioner nos. 1 to 4 and 6 being Class IV and 2 petitioner no. 5 being Class III employee of Bihar Urdu Academy (hereinafter referred to as „Academy‟), have filed the present writ application for the following reliefs: (a) for issuance of appropriate writ, order or direction quashing the office orders contained in letter nos. 885/04, 883/04, 886/04, 882/04, 881/04 and 884/04 dated 25.11.2004 passed by the Executive Committee and issued by the Secretary, Bihar Urdu Academy terminating the services of the petitioners, as contained in annexure 8 series to the petition. (b) For issuance of appropriate writ, order or direction commanding the respondents to reinstate the petitioners on their post and to treat them to be continuing in service with all consequential benefit of the payment of salary etc. (c) For issuance of appropriate writ, order or direction restraining the respondents from appointing the staffs on the said posts till final disposal of this writ application. (d) For issuance of appropriate writ, order or 3 direction commanding the respondents to pay all arrears D.A. as permissible which was stopped and has not been paid since Oct. 2000. (e) For issuance of appropriate writ, order or direction grant any other relief or reliefs to which the petitioners are entitled in the opinion of this Hon‟ble Court in the facts and circumstances of the case. The case of the petitioners is that they were appointed on daily wages between the period 1981 to 1983 and in 1994 and were subsequently, appointed in their respective pay scales admissible against their posts, from 1984 to 1994 vide Annexures 1 to 5. All these appointments were made by the Executive Committee of the Academy, which was empowered to execute the policy decision of the Academy in as much as making appointments for the fulfillment of the objectives of the Academy, which gets reflected from Rule 14(c)(ii) of the Rules and Regulations of the Academy, as contained in Annexure 11. The further case of the petitioners is that after the petitioners served the Academy for so many years, show cause notices were issued to them through separate letters, as 4 contained in Annexure 6 series dated 10.11.2004, issued under the signature of the Secretary of the Academy, asking the petitioners to explain within eleven days, i.e., by 21.11.2004 as to why their services be not terminated on the ground that the posts on which they were appointed, were not sanctioned by the State Government and due to several irregularities in the process of their appointments. Subsequently, a High Level Committee submitted its report, vide letter no. 312/FC dated 6.11.2011, finding irregularities in the process of appointment and declaring the appointment of the petitioners illegal. Thereafter, the services of the petitioners were terminated, vide orders as contained in Annexure 8 series. Learned counsel for the petitioners contended that in reply to the show cause notice filed before the Secretary of the Academy, the petitioners submitted that the Executive Committee, which appointed the petitioners, has always been headed by the Governor/Chief Minister, whereas State Education Minister, the Education Commissioner, Finance Commissioner and the Director of Education were the ex officio members. The Executive Committee was vested with the powers to execute the policy decision of the 5 Academy in as much as creating posts and making appointments thereon and the Committee was not required to take approval of the State Government in these matters. It was further submitted that in absence of the Rules or Regulations or directives, the termination of the petitioners from services was not in accordance with law. The Finance Commissioner being ex officio member of the Executive Committee and having full knowledge of the petitioners‟ appointments and their confirmation on the respective posts, cannot challenge the appointment of the petitioners and was estopped from terminating the services of the petitioners. But in spite of that, the Finance Commissioner, in a single sitting, held a meeting and took a decision terminating the services of the petitioners and that too without giving any opportunity of being heard, to the petitioners. The learned counsel for the petitioners submitted that the State Government usurped the powers of the Executive Committee by directing/constituting a High Level Enquiry Committee to enquire into the matter of appointment of employees of the Academy. The enquiry committee did not make any enquiry nor did it find the report of the State Government, correct. Since the enquiry made by one of the ex 6 officio members of the Executive Committee was misconceived, the recommendation made by the department of Minority Welfare department for terminating the services of the petitioners on the basis of said enquiry, is against the rule of law. It has further been submitted that the termination orders have been issued on pick and choose basis and petitioner nos. 1 to 4 were terminated after 22 years of services whereas petitioner nos. 5 and 6 were terminated after twelve years of service ignoring the fact that the petitioners were appointed by following the due process of law as prescribed under the Rules, while other such appointees were allowed to continue. The learned counsel for the petitioners submitted that the respondent authorities terminated the services of the petitioners by taking shelter to Rule 16 (iv) of the amended Rules of the Academy which only deals with the budgetary approval which is being taken every year. More over, the said rule was known as Rules and Regulations of Bihar Urdu Academy, as amended (up to November, 1982) and published in 1999, which cannot govern the appointment of the petitioners which were made much prior to the coming 7 into force of the amended Rule, as the initial Rule 14 as contained in Annexure 11 stipulates the provision of the Executive Committee whereas Rule 14(c )(ii) confers the powers to appoint, confirm, promote or to suspend its office staff and in pursuance to the said power, the appointments were made. Two sets of counter affidavits have been filed on behalf of the respondents; one by the State respondent nos. 3 and 4 and the other by the respondent nos. 5, 8 and 9, the Academy. The stand of the state is that the appointments were made without any advertisement. The posts were not sanctioned. No approval was taken from the State Government and relying upon the amended Rule 16(iv), which stipulates that the Executive Committee “shall prepare an annual budget as far as may be within 45 days of the commencement of each financial year giving necessary details about the provisions made in the budget including details relating to the number of post proposed and shall submit the same to the State Government for approval,” the petitioners were terminated. The Academy has no power to create posts and the High Level Enquiry Committee was constituted by the Chief Minister on the recommendation of 8 the Minister, Minority Welfare Department under the Chairmanship of the Finance Commissioner who conducted the enquiry. When the enquiry committee found the appointments to be illegal and on non-sanctioned post, it recommended for termination of the petitioners from service and, consequently, the Academy issued resolution dated 25.11.2004 (Annexure 8 series). The stand of the Academy, which is respondent nos. 5, 8 and 9, is to the effect that the posts were not sanctioned nor approved by the State Government nor advertisements were made, hence, in pursuance to the High Level Enquiry Committee, the recommendations and directions of the Ministry of Minority Welfare, the resolution was taken on 24.11.2004 to terminate the services of the petitioners with a direction to take action for making payment of their arrears of salary till 2004. The Academy has also relied upon the amended Rule 16(iv) published in 1999. From the pleadings of the parties, it is apparent that the Government of Bihar, vide Gazette Notification no. 542 dated 9.3.1972 (Annexure 10), established Bihar Urdu Academy as an autonomous registered society to fulfill the objectives for betterment and 9 development of Urdu Literature under the supervision and control of an Executive Committee under the President ship of the Governor of the State and the Education Minister as a Vice President and other members, with a further clause that Rules and Regulation shall be made and published in the gazette by the State Government with the consultation of the Academy. It appears that after the establishment of the Academy, an executive committee was nominated by the Government with the Governor of the state as Ex officio President, two vice Presidents, the Finance Commissioner of Bihar Government or his nominee, the Education Commissioner of Bihar government or his nominee, the Director of Education (Higher Education) Bihar, Head of Post Graduate Department of Urdu in the Universities in Bihar where Urdu is taught up to post graduate stage, as the ex officio members and other nominated members. The detailed bye-laws of the Academy was framed and registered under Registration Act, 1960 bearing Registration no. 15 (1972-73) dated 29.5.1972 named as Constitution and Rules and Regulation of the Bihar Urdu Academy, Patna. Rule 14 of the said Rules deals with the provisions of the Executive 10 Committee which reads as follows: “14 (a) Function of the Executive Committee – The Executive Committee shall execute the policy decisions of the academy and shall arrange for its working. (b) The Executive Committee shall be vested with all the powers for the fulfillment of the objectives. (c) Notwithstanding the powers conferred in sub section a-b the committee shall have the following powers: (i) To lay down policy regarding the writing of books in Urdu, getting them translated or edited and published (ii) To appoint, to confirm, to promote or to suspend its office staff (iii) To lay down terms and conditions of service of the office staff with the prior approval of the General Council of the Academy (iv) To accept, to maintain and to spend the funds of the Academy and to keep its property and retain various activities (v) To buy, exchange, to borrow, to hire or to earn any property for the use of the Academy or to dispose of or accept donation with prior approval of the General Council of the Academy.” Rule 14 (b) clearly reflects that the Executive 11 Committee was vested with all the powers for the fulfillment of the objectives of the Academy. Hence, the appointments made by the Committee, which is not in dispute, were definitely made in pursuance to the powers vested under Rule 14 which does not incorporate the sanction of Class III and IV posts from the State Government rather Rule 14 (c )(iii) lays down that the Executive Committee was empowered to lay down terms and conditions of the service of the office staff, hence, the amended Rule 16(iv) published in 1999, which stipulates the preparation of annual budget within 45 days of each financial year giving necessary details about the provisions made in the budget including details relating to the number of post proposed which shall be submitted to the State Government for its approval, will not govern the appointments made much prior to the publication of the said Rule. Admittedly, the case of the respondent authorities is not that the appointments were obtained by the petitioners by playing fraud, rather, the case of the respondents is that the Executive Committee had to take approval from the State Government about the sanction of the post, which the initial Rule of 1972, as contained in Annexure 11, does not 12 stipulate. So far as the publication of advertisement is concerned, though a pleading has been made half heartedly that some notices had been pasted on the notice board but it does not appear that any advertisement was made. The fact of the matter is that the respondents have not denied this fact that all the appointments were made by the Academy in the similar manner and the Enquiry Committee, in its report, retained the services of some of the employees. This is an admitted fact that the enquiry committee took the decision to terminate the services of the petitioners on 10.11.2004 on the basis of the report of the Minority Welfare Department in one day, while no opportunity was given to the affected persons nor the copy of the enquiry report was supplied to the petitioners. Moreover, the extract of the resolution of the Academy which was brought on record, does not suggest that actually, the reply of the petitioners to the show cause were considered rather it appears that no copy of the enquiry report were supplied to the petitioners and the authorities were pre- determined to terminate the petitioners from service. It is pertinent to mention that the enquiry was conducted by the committee headed by the Finance Commissioner who was the 13 ex-officio member of the Executive Committee of the Academy who made all the appointments. Neither the counsel for the State nor the counsel for the Academy dispute this fact that the petitioners were confirmed or regularized by the Executive Committee of the Academy, nor the documents, brought on record by the petitioners suggesting the confirmation, has been disputed by the respondent. Without expressing any opinion on the nature of appointment of the petitioners, this Court is inclined to quash the termination orders as contained in Annexure 8 series, simply on the ground that the same has been issued against the petitioners after ten years and twenty two years of their services without giving them any opportunity of being heard, while on the other hand the other employees, appointed in similar manner, were retained in service, which is violative of the principles of the natural justice and absolutely discriminatory in nature. Accordingly, the orders as contained in Annexure 8 series, terminating the services of the petitioners, are quashed and the petitioners are directed to be reinstated in service. However, since there is nothing on record that during the 14 period of termination, the petitioners were not gainfully employed elsewhere, the respondents are directed to pay only 50% of their emoluments for the period the petitioners remained under termination. Needless to say, the petitioners will be entitled to the arrears of salary till the date of their termination in accordance with law, as recommended by the enquiry committee and admitted by the Secretary of the Academy, while issuing the notification of termination. The whole exercise of reinstatement and payment should be done within a period of four months of the production/receipt of a copy of this order. However, it is clarified that that quashing of the impugned order will not preclude the respondent authorities to conduct any regular enquiry in the matter and pass appropriate reasoned order in accordance with law, taking into consideration that other persons appointed in a similar manner have been retained in service. With the aforementioned observation/ direction, this writ application stands disposed of. Amrendra/Anil/ ( Dinesh Kumar Singh, J)