IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11768 of 1996 AWADHESH SINGH, S/O SRI NATHUNI SINGH, R/O VILLAGE-SRIPUR-CHINAMANPUR, P.S.-SUGAULI TOWN AND DISTRICT-MOTIHARI. ………………PETITIONER. Versus 1. STATE OF BIHAR THROUGH THE SECRETARY TO GOVERNMENT, HUMAN RESOURCES AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA. 2. DIRECTOR OF SECONDARY EDUCATION, HUMAN RESOURCES AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKASH BHAWAN, PATNA. 3. INSPECTORESS OF SCHOOLS-CUM-DEPUTY DIRECTOR OF EDUCATION, GOVERNEMNT OF BIHAR, DAK BUNGALOW ROAD, PATNA. ………………RESPONDENTS. ----------- For the Petitioner : Mr. Shivendra Kishore, Adv. For the State : Mr. Sanjay Kumar-II, GP- XV and Mrs. Nutan Kumari Sharma, AC to GP-XV. ------------- 4 22.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. This appears to be the third round of litigation by the petitioner. It appears that the petitioner along with others had moved this Court earlier against order of his termination and the matter was remitted back to the Director, Secondary Education to hear the petitioners and pass fresh orders. The fresh orders were passed by the Director on 21.9.1995 cancelling the appointment of the petitioner, as contained in Annexure-1, which is under 2 challenge in this case. The order shows that the case of 11 incumbents including the petitioner (which has wrongly been typed as Ganesh Singh at serial no. 11 instead of Awadhesh Singh) were considered and the Director found that the appointment of the petitioner was not made pursuant to any advertisement; names were not called for from the Employment Exchange; there was no roster clearance; rules of reservation were not followed and the actual appointment letter was not received in the office. Considering these defects in the case of said 11 incumbents their appointments were cancelled. Learned counsel for the petitioner submits that there was an advertisement on the notice board and there was a selection process pursuant to which petitioner was appointed. He also submits that the Inspectress of the school- cum-Deputy Director of Education was competent in law to make appointment on class-III posts. He also submits that the petitioner was appointed by the Inspectress of the Schools vide letter no. 16873-74 dated 13.12.1989 pursuant to a resolution of the Establishment Committee 3 dated 15.5.1989. Therefore, his appointment was valid. He submits that in any case, under the orders of the Director, as per request of the petitioner, cadre was changed and he was transferred from the post of Lab Assistant to the post of Clerk and posted in the office of Deputy Inspector of the School, Patna City. He also submits that large numbers of persons appointed similarly have been allowed to continue in the service whereas the petitioner has been singled out for cancellation of his appointment on the said grounds. Learned counsel for the State submits that there is nothing on record to show that there was any advertisement or there was any selection process. He submits that in absence of any materials in this regard the pleadings of the petitioner can not be accepted. A copy of the said proceeding of the Establishment Committee is available in the records of CWJC No.9301 of 1995. It does not show that there was any advertisement or any recommendation by the Selection Committee for appointment of the petitioner. The document shows that there were four items in agenda for 4 consideration by the Committee in the meeting. The first item was to approve the candidates selected by the Selection Committee for appointment of Music and Craft teachers. The third agenda which concerned the petitioner shows that two applications of the candidates for appointment of Laboratory Assistant-cum- Clerk were to be considered. The proceeding also shows that there were two applications only before the Committee and it was resolved to appoint them. The Committee was chaired by the Inspectress of the School-cum-Deputy Director of Education. Even if it is accepted that the said Inspectress of the School-cum-Deputy Director of Education was competent to make an appointment and the Establishment Committee was competent to approve the same, apparently there was no advertisement and no selection process was adopted for selection of the petitioner for his appointment. This is contrary to the fundamental requirements for public employment. The submission of learned counsel for the petitioner that other incumbents appointed similarly have been allowed to continue whereas the petitioner has been singled out for termination of his 5 services is also of no help to the petitioner. Even if other illegally appointed candidates are continuing in the service of the Government, the petitioner cannot claim any benefit on that account as there can be no negative application of Article 14 and 16. In view of the submission of learned counsel for the petitioner, it is obvious that the respondents were legally bound to terminate the services of other incumbents also who were similarly appointed. But since they have failed to perform their duty, it does not give any right to the petitioner to continue in the service in the light of the admitted fact that his appointment was clearly in violation of mandate of Article 14 and 16 of the Constitution. In the circumstances, this Court does not find any merit in the writ application and the same is dismissed. However, before parting with this case, this Court observes that the grievance of the petitioner that other similarly appointed incumbents are continued in service is a matter for the respondents to examine and the 6 petitioner may point out the respondents the facts in this respect. Arvind/ (J. N. Singh, J.)