IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1167 of 2009 In (CIVIL WRIT JURISDICTION CASE 12005/2006) 01. The State Of Bihar 02. The Director General and Inspector General of Police, Old Secretariat, Patna 03. The Deputy Inspector General of Police, Purnia Range, Purnia 04. The Superintendent of Police, Katihar ….. Respondents-Appellants Versus Md.Manzoor Alam, Son of Late Baseeruddine, resident of village-Phensaha, P.S.-Salkhua, District-Saharsa ….. Petitioner-Respondent ---------------------------------- With Letters Patent Appeal No.1015 of 2009 IN (CIVIL WRIT JURISDICTION CASE 12005/2006) 01.The State Of Bihar 02.The Director General and Inspector General of Police, Old Secretariat, Patna 03.The Deputy Inspector General of Police, Purnia Range, Purnia 04.The Superintendent of Police, Katihar ….. Respondents-Appellants Versus Md.Manzoor Alam, Son of Late Baseeruddine, resident of village-Phensaha, P.S.-Salkhua, District-Saharsa ….. Petitioner-Respondent ---------------------------------- For the Appellants:- Mr. Harendra Pd. Singh, GA-8 Mr. Pankaj Kumar, A.C. For the Respondent:- Mr. Awadhesh Kr. Mishra, Mr. Anand Kr. Mishra & Mr. B.S. Mishra, Advocates 08. 08.08.2011 The present L.P.A. has been filed by the 2 State against the order dated 26.2.2007 passed in C.W.J.C. No. 12005 of 2006 as the services of the respondent were terminated by the appellant State only on the ground that he was not appointed by complying the procedure as laid down in Rule 661 (b) of the Police Manual. The case of respondent was that recognizing his bravery when he made an application to the Chief Minister, he was directed to be appointed as many appointments were given on special ground recognizing the bravery of a person who fought with the criminals during certain period. There is no dispute that the respondent falls within such category as no material is forth coming contradicting his statement. The learned Single Judge has held that the appointment was made in 1st June 1997 and the order of termination was passed on 1st March, 2002. Such appointment could not be termed as irregular or illegal. The learned Single Judge has also directed that the respondent is not entitled for salary for the period up to March 2002. Till the date of his retirement but such period shall be counted for the purpose of determining the qualifying service for pension and other benefits. Aggrieved by the same 3 the present appeal has been filed. It has been vehemently contended by the learned Government Advocate No.8 that such appointment can not be regularized and cannot be termed as regular appointment as Process of selection has not been undergone by the respondents and there is a clear violation of Rule 661 (b) of the Police Manual. In this regard learned counsel for the State has relied upon a Division Bench judgment of this Court reported in 2007 (3) PLJR 657 (Hemkant Jha & Others Versus The State of Bihar & Others) wherein the Division Bench of this Court has held that “determination of the post of Constable made by the authority is in violation of Rule 661 (b) of the Police Manual”. Hence order of the learned Single Judge has to be set aside. Learned counsel appearing for the respondent has brought to the notice of this Court the judgment of the Apex Court rendered in Special Leave to Appeal (Civil) No. 3508 of 2008 dated 10.3.2008 which is preferred against the L.P.A. No. 690 of 2006 dated 23rd May, 2007 between State of Bihar & Others Versus Mithilesh Kumar Singh, and the Special Leave to Appeal was dismissed. Latest judgment of the Supreme Court is Civil Appeal No. 4 289 of 2007 dated 24th of July 2008 (Sushil Kumar Yadav Versus State of Bihar & Others). It is the similar case where the services of the appellant was terminated on the ground that the appointment was made on the order of the then Chief Minister as his father died while discharging the duty during election and he was appointed on the Post of constable in the Police Department and continued up to 2001. His services was terminated on 24.1.2003. It is also the case that notices were issued to the appellant that there was no rule for compassionate appointment at the relevant time, but however the Apex Court has rejected the argument of the learned counsel appearing for the State of Bihar holding that the State woke up to realize with regard to his appointment merely after a period of 10 years. The Apex Court has observed “It is on equity that he was given appointment on the post of Constable in 1993. He had undergone all training and he continued in service for more than ten years and suddenly in 2001 the State woke up to realize that his appointment is bad. Therefore the equity requires that such appointment should not have been disturbed by the authorities. The observations of the Apex Court in this regard reads as follows:- 5 “We are satisfied on the ground of equity that the incumbent should be allowed to continue as he has been in service from 1993 and was appointed only on the ground of his father being died while discharging his duties during the Election. Therefore, it was an equity which prevails with us”. The Apex Court has also observed that without going into the merits of the case we think it proper to allow him to continue in service as his father died while discharging the duty during election. In this case, as contended by learned counsel appearing for the respondent, the respondent has come to know that similar situated persons have also been appointed by the State by approaching the Chief Minister which fact remains undisputed by both sides that on direction of the Chief Minister some person has been appointed as a Police Constable and it is a case where the respondent has undergone the full training required for the Police Constable. It is not the case for the appellants that his services was not satisfactory and is not discharging his duty to the satisfaction of his superior. In absence of any adverse remarks the services of the appellant cannot be terminated only on the ground that the process of selection was not 6 undergone as requires under Rule 661 (b) of the Police Manual and the same cannot be put as an embargo in the Police service. It is further contended by learned counsel appearing for the respondent that in absence of any such adverse remarks against him the department should not be prejudice by his continuation of service in Police Department as the services of person like the respondent was provided in the special circumstances in view of exemplary bravery shown by him by fighting and catching the criminals. The learned Single Judge has observed that there is no material placed before this Court to contradict such statement and it is also not a case of mis-representation or fraud. The only ground urged by the learned Government Advocate is that the process of selection was not undergone by the respondent herein and therefore there is violation of principles of Rule 661 (b) of the Police Manual and also the decision of this Court. We also had the occasion to go through the judgment of this Court, but however the Apex Court has already dismissed the SLP (Civil) 3508 of 2008 which arises out on the similar circumstances confirming the judgment of L.P.A. No. 690 of 2006 filed against the order dated 7 24.05.2007 and also the judgment in Civil Appeal No. 2899 of 2007 dated 24th July 2008. We also aware with regard to the observation of the Apex Court that this judgment should not be treated to be a precedent so far fact is concerned. Here also a person was appointed on his application through the Chief Minister by bringing to his notice regarding bravery act which was recognized. Of course we are also in-agreement with the submission of the learned Government Advocate that the respondent was not selected by undergoing the process of selection as contained in Rule 661(b) of the Police Manual. But however the fact remains that he has been sent for the proper training and it is also undisputed that the State spent considerable amount in his training for police constable and in absence of any adverse remarks and further in absence of any prejudice caused to the department in his continuance of service, we are not in agreement with the contention raised by the learned Government Advocate. However, we also take into consideration the submission of learned counsel for the respondent that similarly situated persons are still continuing in the police department. The record 8 shows that the similarly situated persons have been appointed who has shown their bravery act to the department and they were treated to be a separate class. Under the above circumstances, the decision of the State Government by engaging such person who was shown their bravery cannot be said to be illegal. We are of the view that the State has already spent the considerable amount in sending the respondent for training and in his appointment there is no mis-representation or fraud and therefore merely because process of selection was not undergone, there cannot be an embargo in continuation of his service. We also make it clear that the respondent is not entitled for salary for the period he was out of service, but however his service will be counted for other benefits. With the above observation both the L.P.As. stand disposed of. P.K. (T. Meena Kumari, J.) (Vikash Jain, J.)