IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.759 of 2009 CHANDRA MAULESHWAR PRASAD SINGH, SON OF LATE SRI SURESHWAR PD. SINGH, RESIDENT OF VILLAGE & POST NARAINPUR, P.S.- BARAHAT, DISTRICT – BANKA. …………… PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. THE SECRETARY, HUMAN RESOURCE DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, SECONDARY EDUCATION, PATNA. 4. THE DISTRICT EDUCATION OFFICER, BHAGALPUR. 5. THE DISTRICT EDUCATION OFFICER, BANKA. ………….. RESPONDENTS. ----------- For the Petitioner : - Mr. Rajendra Pd. Singh, Sr. Advocate Mr. Rajeev Kumar Singh, Advocate Mr. Navjot Yeshu, Advocate For the State : - Mr. Ashok Kumar Pathak, AC to GP XI. ------------------ 04/ 19.08.2011 Heard counsel for the petitioner and counsel appearing for the State. Counter affidavit has been filed on behalf of District Education Officer, Banka, Respondent No. 5. Petitioner has prayed for quashing of the order dated 17.11.2008 issued by the District Education Officer, Banka contained in Memo No. 1977 (Annexure- 19), whereby he has been terminated from service. Further prayer of the petitioner is for a direction to the respondents to reinstate him and make payment of all consequential benefits. Petitioner’s case is that an advertisement for the post of Clerk had been published and applications 2 were called from Employment Exchange. Petitioner had also applied for the post being Matriculate. He was interviewed and selected for the post. He was initially appointed on a prescribed pay scale, vide Notification dated 11.5.1982, against a temporary vacant post of Clerk at S.N. High School, Mohanpur, as the vacancy was created due to deputation of Upendra Nath Jha, for accounts training. He continued on the post and thereafter was being repeatedly transferred and posted against the temporary vacancies created in different schools, due to deputation of Clerks for their accounts training. Till 1985 petitioner continued like this. However, finally vide Memo No. 6237 dated 30.6.1984 (Annexure-7), he was transferred and posted against a sanctioned post, at Sri Durga High School, Shaktinagar. Since, 1985 till date he has continuously been working on a sanctioned vacant post of Clerk. He possesses requisite qualification for being appointed on the post of Clerk. In the year 1990 Advertisement No. 38/90 was published for recruitment of Clerks on 26 permanent posts and 6 temporary posts in the office of the District Education Officer, Bhagalpur. Applicants were directed 3 to submit their applications before the Employment Exchange and through the Employment Exchange applications were routed for consideration. Petitioner’s application was also considered and he was appointed on regular basis, on the post of Clerk. Petitioner, thereafter, was confirmed on the post and was also allowed time bound promotion. He also appeared in the Hindi Noting and Drafting Examination and passed this examination, and increments were also allowed to him, thereafter. Case of the petitioner is that though his initial appointment was on temporary basis, but subsequently vide Memo No. 937 dated 31.1.1997 his services was regularized. He continued on his post and time bound promotion was also allowed to him. Subsequently, a question was raised against the legality of his appointment, simply for the reason that one Brajesh Kumar Sinha, Clerk appointed in the same manner had been terminated from service, on the ground that he had been appointed in an illegal manner without following the procedure required to be observed for any legal appointment on Class III post. The termination order was challenged by him in C.W.J.C. No. 6278 of 4 2003. In his writ application, Brajesh Kumar Sinha had given reference of petitioner and some other persons, that though they were also appointed like him, they are still continuing on their posts. Only he has been singled out and terminated, on the ground that his appointment was illegal and irregular. The writ application of Brajesh Kumar Sinha was dismissed, with an observation to complete enquiry in cases of those Clerks, who are alleged to be similarly appointed like petitioner, if, it is found that they were also similarly appointed, they should also be given similar treatment. In the light of this observation an enquiry was conducted. Show cause was submitted by the petitioner, in response to the notice issued by the officer conducting enquiry. The District Education Officer, Banka, considering all aspects, submitted his report before Deputy Director, Secondary Education, Bihar. The District Education Officer, Banka in his report indicated that the service of the petitioner, had been regularized as per the recommendation of the District Establishment Committee vide order dated 31.1.1997 contained in Memo No. 937. The report, also indicated that petitioner 5 has already completed 24 years of service. The Enquiry Officer also mentioned about gazette notification dated 10th August, 1989, whereby all appointments made prior to 30th August, 1988 were deemed to have been made on regular basis. Counsel for the petitioner submits that since petitioner’s appointment had been regularized vide order dated 31.1.1997 issued by the District Superintendent of Education, Bhagalpur as per the recommendation of the District Establishment Committee and subsequent to that he has been considered as a regular employee, there was no reason for raising any question about the legality of his appointment. Petitioner has also placed reliance on a decision of Apex Court reported in (2010) 9 S.C.C. 247. In this judgment the decision, State of Karnataka Vs. Uma Devi, has been considered and in para 7 (ii) a finding has been recorded that in case an employee, even if irregularly appointed, continues on sanctioned post for 10 years and possesses requisite qualification, subsequently he cannot be terminated simply on the ground that at the time of his initial appointment formalities were not observed, which are required to be 6 followed, for a regular and legal appointment. Such ground cannot be a basis for terminating the employee; rather such irregular appointment should be treated as a regular appointment. Petitioner’s case is that he possessed requisite qualification for the post of Clerk, and since, 1985 continuously worked against sanctioned vacant post. Subsequently, he was also confirmed on the post, now at this belated stage, legality of his appointment cannot be questioned, simply because some of the formalities were not observed at the time of his initial appointment. In the counter affidavit filed on behalf of Respondent No. 5 in para 13 there is reference of Brajesh Kumar Sinha’s case, due to which question regarding legality of petitioner’s appointment had been raised. Nowhere in the counter affidavit it has been stated that in the case of Brajesh Kumar Sinha also an order to confirm his service had been passed by the competent authority. He was also given time bound promotion like the petitioner and he was treated by the department as an appointee, appointment on regular basis. There is no statement in the counter affidavit that case of present 7 petitioner is identical to the case of Brajesh Kumar sinha, in whose case the termination order was not interfered by the High Court. The enquiry report submitted by the District Education Officer, Banka is also in support of the petitioner, which shows that after being regularized in service there is no reason for taking adverse action against the petitioner, specially when he is continuing in service for more than 24 years. I find that simply because an observation was made in Brajesh Kumar Sinha’s case to enquire into the allegation made by the writ petitioner, it should not have been treated as a direction by the Department, to terminate the petitioner. Legality of appointment was to be examined considering the facts and the circumstance of the case. Accordingly, the order dated 17.11.2008 (Annexure-19) is fit to be quashed and it is quashed. This application is allowed. Respondents are directed to reinstate the petitioner on his post with all consequential benefits. DKS/ (Mridula Mishra, J.)