IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5919 of 2009 UPENDRA KUMAR YADAV, son of Late Raghubir Prasad Yadav, Resident of village and P.O. Budhma, P.S. Madhepura, District Madhepura …… Petitioner Versus 1. THE STATE OF BIHAR 2. The Principal Secretary, Road Construction Department, Government of Bihar, Bishweshwaraiya Bhawan, Bailley Road, Patna 3. The Engineer-in-chief cum Additional Secretary, Road Construction Department, Government of Bihar, Bishweshwaraiya Bhawan, Bailley Road, Patna 4. The Deputy Secretary, Road Construction Department, Government of Bihar, Bishweshwaraiya Bhawan, Bailley Road, Patna 5. The Chief Engineer, South Bihar Wing, Road Construction Department, Patna 6. The Superintending Engineer, Bhojpur Road Circle, Ara … … Respondents ----------- 2. 12.5.2009 Heard counsel for the parties. This is a case of termination of service of the petitioner by an order dated 14.11.2008 wherein the authorities having noted gross illegalities committed and perpetuated in his appointment have ultimately taken a decision for his removal from service. Counsel for the petitioner could not satisfy this Court as to genuineness and legality of the appointment from any of the appointment letters. He ultimately had pointed out that the order dated 8.6.1999 (Annexure 7) was the only document which 2 would go to show that the appointment of the petitioner was justified and regular. Annexure 7 reads as follows: ^^vfHk;Urk izeq[k lg vij vk;qDr lg fo'ks"k lfpo] iFk fuekZ.k foHkkx ds i=kad&309 fnukad 13@1@98] 3951 fnukad 18@5@98] Lekj i=kad 1570 A,lA fnukad 5@3@99 ,oa i=kad g&4Aeqdnek&45 155 Ava'kA& 3352 Ab0A fnukad 20@5@99 esa fufgr vkns'kkuqlkj Jh misUnz ;kno dk;ZeqDr ANVuhxzLrA vuqlsod dks iqu% vuqlsod ds in ij oRrZeku 77 5&1025 ,oa ljdkj }kjk le; le; ij ns; vU; HkRrksa ij rRdky rnFkZ :i ls iqu% fu;qDrA lek;kstu dj Hkkstiqj iFk vapy vkjk ds dk;kZy; esa vuqlsod ds fjDr in ij ;ksxnku dh frfFk ls inLFkkfir fd;k tkrk gSA** From the reading of the aforesaid order dated 8.6.1999 it would appear that the petitioner was somehow described to be a retrenched employee. The fact of the matter is that his initial appointment itself was a rank illegal appointment which was made without publication of advertisement and under going any selection in the year 1987 only for a period of 60 days. The petitioner however having continued for some period beyond 60 days even without an order, was ultimately removed from service on the ground of its being illegal appointment and the said order of termination of service of the petitioner was also affirmed by this Court and the matter was only remanded for a limited consideration as to whether the 3 petitioner and three other similarly situated persons could be accommodated. Such details are given in a report of the Superintending Engineer dated 20.3.2009 (Annexure 18). It is not in doubt that among the four persons two of them were terminated in the year 1990 and had jointly filed a writ petiton, C.W.J.C.No. 5689/1990, the other two of them namely Basanti Devi and Awdhesh Prasad Singh were kept out of service and were in fact not given the same preferential treatment as extended to the petitioner by the aforementioned order dated 8.6.1999. A question in fact would arise as to how this preferential treatment was extended only to the petitioner. The answer is also available in the record itself. The Minister was behind it. If that be so, the illegality committed in the appointment of the petitioner was sought to be perpetuated and therefore merely because the petitioner had managed to remain in service for a period of eight years by hook or by crook, that cannot confer him now a right either to claim that he was a regular Government servant or that his appointment became valid 4 on account of aforementioned order dated 8.6.1999. Articles 14 and 16 of the Constitution of India only envisage and in fact guarantee equality of opportunity in a public employment to every citizen of India. Here in this case when the petitioner was taken in employment for a period of 60 days no such opportunity was given to others by advertising the posts for recruitment from open market. In that view of the matter, this Court would not find any merit in that part of the submission of the learned counsel for the petitioner that the case of the petitioner stands covered by the judgment of this Court dated 22.1.2008 passed in L.P.A.No. 779/2007 or its affirmance by the Apex Court. The law in this regard relating to illegal appointment and their regularization stands settled by a Constitution Bench Judgment of Apex Court in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1, wherein it has been held that the alleged long continuance in service on the basis of an appointment in flagrant violation of Article 14 of the 5 Constitution could not be made ground for continuance/ regularization in service. In the present case also when the petitioner was sought to be regularized even without placing the matter before the Establishment Committee and by the Superintending Engineer alone, the illegality committed in course of his initial appointment had continued and therefore the alleged regularization of the service of the petitioner, as is manifest from the record itself, was patently unsustainable. That being so, if the State and its officials in order to secure the concept of equality as also not being compelled to appoint three other similarly situated persons, alike the petitioner has passed the impugned order dated 14.11.2008, the same cannot be interfered by this Court as that again would amount to bestowing a favorable treatment to the petitioner by excluding the cases of other similarly situated persons, namely, Basanti Devi and Awadhesh Prasad Singh. Thus this Court would find no error, either on facts or in law, in the impugned order. 6 That being so, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/