IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5664 of 2003 LAXMY NARAYAN SINGH, son of Sri Brij Mohan Singh, resident of village- Koshdihra, post office- Nabinagar, Police Station- Nabinagar, District- Aurangabad. … Petitioner. Versus 1. THE STATE OF BIHAR 2. the Director, Secondary Education Department, Govt. of Bihar, Patna. 3. The Regional Deputy Director of Education, Magadh Division, Gaya. 4. The District Education Officer, Aurangabad. 5. the Incharge Headmistress, Rajkiyakrit Balika Uchch Vidyalaya, Nabinagar, District- Aurangabad. … Respondents. ----------- 7. 18.08.2010 Heard Mr. Rajendra Prasad Singh, learned senior counsel for the petitioner and learned counsel for the State. The petitioner in this writ petition has assailed his order of termination of service dated 17.12.2002 primarily on the ground of his long continuation and working for a period of more than 9 years which by itself had cured illegality if any in his initial appointment. Mr. Singh would submit that in any event the petitioner was not at fault in the alleged illegality of his initial appointment and to that extent he has placed on an earlier order passed by the District Education Officer pursuant to a direction of this Court for considering the payment of salary to the petitioner for the period he had worked on 2 the post of peon. In the opinion of this Court, such submission of learned counsel for petitioner for assailing the order of termination of service of the petitioner has to be only noted for its being rejected. From the reading of the alleged order of appointment of the petitioner, it would be clear that it was a rank illegal manner of appointment not capable of being dubbed as a more irregular inasmuch appointment as it had read as follows:- Þizs"kd Mk0 fnokdj ikBd] {ks=h; mif'k{kk funs'kd ex/k ize.My] x;k A lsok esa iz/kkuk/;kfidk] jktdh;d`r ckfydk mPp fo|ky; uohuxj ¼vkSjaxkckn½ x;k] fnukad 24 ekpZ 93 fo"k; %& Jh y{eh ukjk;.k flag] iq= Jh c`t eksgu flag dks vkns'kiky ds in ij dh x;h rnFkZ :i ls fu;qfDr ds lEcU/k esa A egk'k;] mi;qZDr fo"k; vkids i=kad 41 oh0 fnukad 10-8- 92 ds izlax esa vafdr djuk gS fd vkidh vuq'kalk ,oa ekax ds vk/kkj ij Jh y{eh ukjk;.k flag iq= Jh c`t eksgu flag tks vkids }kjk fnukad 1-4-92 ls rnFkZ O;oLFkk ds :i esa vkns'kiky ds in ij voSrfud :i ls dke dj jgs gS dks vkns'kiky ds in ij dh x;h rnFkZ O;oLFkk dks vuqeksfnr djrs gq, jktdhd`r ckfydk mPp fo|ky;] uohuxj esa dk;Z djus dh vuqefr nh tkrh gSA fo'oklHkktu] g0 vLi"V {ks=h; mif'k{kk funs'kd] ex/k ize.My] x;kÞ 3 As would appear the Headmistress had engaged the petitioner for doing he work of peon in her school on 1.4.92 on honorary basis and thereafter recommended his case for approval of his ad hoc appointment on 10.8.92 and that is how the RDDE vide order dated 24.3.1993 gave approval to his such ad hoc appointment. This is however not the manner of appointment of a peon in a High School for which the Government had already prescribed the norms under Circular No. 16441 dated 3.10.1980 requiring issuance of an advertisement in newspaper followed by selection and preparation of panel by the Collector of the district and sending name of selected person to the controlling heads of the districts of different departments for filling up all the vacant sanctioned Class-IV posts under their jurisdiction. Obviously, none of these procedures were gone into when the headmistress chose to engage someone like the petitioner from open market while utilizing his service in the school on honorary basis and had gone to recommend his case for according approval by RDDE. Such appointment being in the teeth of Article 4 14 and 16 cannot be countenanced in law and has to be dubbed as a rank illegal appointment and infact void conferring no right to the petitioner. The submission of Mr. Singh that since the payment of salary of the petitioner was directed to be paid by one Ram Surat Ram, the then District Education Officer 23.11.1998 (Annexure-10) and again by his another order dated 1.10.2002 (Annexure-22) in terms of a direction of this Court in the order dated 3.1.2002 in CWJC No. 13783 of 2001 cured the illegality in his appointment can also not be accepted by this Court. The allowing of claim for payment of salary to a person from whom work has been taken would stand altogether on a different footing and would never cure the inherent defect in his appointment. In the present case, impugned order came to be passed in terms of a direction given in the order dated 3.1.2002 in CWJC No. 13783 of 2001 wherein every thing was left open for determination as with regard to validity of the appointment of the petitioner. The order of this Court dated 3.1.2002 reads as follows; “According to the petitioner, he is 5 working as a peon in Balika Uchchya Vidalya, Nabinagar, Aurangabad. He was initially appointed on ad hoc basis in the year 1993. Later, his services were regularized his service book was opened and he started getting his regular salary in time scale of pay. The payment of his salary was first stopped in March, 1998 but the payment was resumed in November, 1998. the payment of salary was once again stopped in March, 1999 and since then he has not been paid any salary. The petitioner has raised his grievance regarding non-payment of his salary by filing a representation before the District Education Officer, Aurangabad. A copy of the representation dated 12.2.2001 is at Annexure-4. As this matter requires further investigation of facts, I am not inclined to make any positive order in this case at this stage. This writ petition, is, therefore, disposed of with a direction to the District Education Officer, Aurangabad to examine the petitioner’s grievance and to pass an appropriate order disposing of his representation without any undue delay and preferably within six weeks from the date of receipt/production of a copy of this order in his office. In case the petitioner is found entitled to payment of his salary, all lawful dues and his current salary shall be paid to him without any further delay. In case his representation is turned down, the District Education officer will pass a speaking order giving reasons for his decision.” (underlining for emphasis) From the reading of the aforesaid order and its 6 underlined portion it would be very clear that this Court had declined to decide the question of validity of the appointment of the petitioner and it had merely directed the District Education Officer to consider the grievance of the petitioner for payment of his arrears of salary. Therefore, if an order for payment of his salary for the admitted period of working was initially passed by same officer, namely, Sri Ram Surat Ram, D.E.O., who had earlier also tried to defend the illegal appointment of the petitioner by passing his order on 23.11.1998 the same in no way would lead to a conclusion that his aforesaid rank illegality in his appointment was also cured. This Court cannot lose sight of the fact that ultimately the competent authority on enquiry had held in the impugned order that such action taken by Mr. Ram Surat Ramwas was wholly without jurisdiction. Thus this Court would not find at least Annexure-10 and 22 the two orders passed by Mr. Paswan to be sufficient ground for setting aside the impugned order reads as follows; ^^¼6½ dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds i=kad 16441 fnukad 3-12-80 esa fufgr izfØ;kuqlkj ftyk inkf/kdkjh ds ;gka la/kkfjr mEehnokjksa dh lwph ds vk/kkj ij djus ds laca/k esa iwNus ij Jh flag us cryk;k fd mudk uke fu;qfDr gsrq ftyk inkf/kdkjh ds ;gka ls ugha ekaxk x;k FkkA 7 mUgksaus ;g Hkh crk;k fd rRdkyhu fudklh ,oa O;;u inkf/kdkjh Jh f'konhi flag] iz0v0] jktdh;d`r mPp fo|ky;] VaMok ¼vkSjaxkckn½ }kjk ;ksxnku djk;k x;k fu;qfDr dk i=kad 509 fnukad 24-3-93 gS] ftlesa vafdr fd;k x;k gS fd 1-4-93 ls rnFkZ vkns'kiky ds in ij voSrfud :i ls dke dj jgs gSa] dks vkns'kiky ds in ij dh xbZ rnFkZ O;oLFkk dks vuqeksfnr djrs gq, jktdh;d`r ckfydk mPp fo|ky;] uohuxj esa dk;Z djus dh vuqefr nh tkrh gSA Jh flag us ;g cryk;k fd vkt ds igys dHkh Hkh fu;qfDr laca/kh ekeys dh lquokbZ gsrq mUgsa ftyk f'k{kk inkf/kdkjh ds dk;kZy; esa ugha cqyk;k x;kA lquokbZ esa mifLFkr ftyk fo|ky; fujhf{kdk] vkSjaxkn ,oa izHkkjh iz/kkuk/;kfidk jktdhd`r ckfydk mPp fo|ky;] uohuxj ls iwNus ij cryk;k fd Jh flag dh fu;qfDr esa foHkkxh;@ljdkjh fu;eksa ,oa izfØ;kvksa dk ikyu ugha fd;k x;k gS] voSrfud ,oa rnFkZ :i ls vkns'kiky ds in ij fu;qfDr dk dksbZ ljdkjh fu;e@izko/kku@ fo'ks"kkf/kdkj ugha gS@ lkFk gh l{ke inkf/kdkjh ds }kjk fofgr izfØ;kvksa ds vfrfjDr dkfeZd foHkkx }kjk fuxZr vkns'k la0 16441 fnukad 3-12-80 dk ikyu djrs gq, fof/kor fu;qfDr ugha dh xbZ gSA {ks=h; mi f'k{kk funs'kd] ex/k izeaMy] x;k ds i=kad 2078 fnukad 31-12-98 ds vkyksd esa fu;qfDr laca/kh dkxtkrksa dh tkap gksus vkSj ml ij fu.kZ; vkus ds iwoZ gh osrukfn Hkqxrku dk vkns'k rRdkyhu ftyk f'k{kk inkf/kdkjh] vkSjaxkckn Jh jkelqjr jke ds }kjk fd;k x;k] ftlds QyLo:i Jh flag dks 17 ¼lrjg½ eghus dk osrukfn dk Hkqxrku fd;k x;k tks vfu;fer Hkqxrku gh ekuk tk;sxk A** It would be therefore clear that the earlier authority who had passed Annexure 10 and 22 had not only exceeded his jurisdiction but acted contrary to the provision of law. In that view of the matter, this Court does not 8 find any merit in any submission made by learned counsel for the petitioner as such appointment being rank illegal appointment had to be terminated. It is only such appointment which has been held by the Apex Court to be not only illegal but infact void appointment. Reference in this connection may be usefully made to the judgment of Apex Court in the case of Secretary, State of Karnataka and Ors. vs. Uma Devi (3) & Ors., reported in (2006)4 SCC 1 and in the case of State of Bihar vs. Upendra Narayan Singh & Ors., reported in (2009)5 SCC, 65. That being so, this Court would not find any merit in this case and the same is accordingly dismissed. kanchan (Mihir Kumar Jha, J.)