IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6236 of 2008 SMT.SABITA KUMARI, daughter of Sri Prasidh Narayan Singh, resident of village-Chakraja, P.S.-Sahjahanpur, District-Patna. ……..Petitioner Versus 1. The State of Bihar, through the Secretary, Secondary Education, Bihar, Patna. 2. The Director, Secondary Education, Government of Bihar, Patna. 3. The Inspectress of Schools-cum-Deputy Director of Education, Bihar, Patna. 4. The Principal, Government Girls High School, Purnea. …….Respondents. ----------- 04. 15.12.2010 The petitioner has filed the present writ application for quashing the memo No. 148-50 dated 18.01.2008 issued by respondent No. 3 by which the services of the petitioner as Assistant Teacher in Government Girls High School, Purnea has been terminated. Petitioner has also prayed for reinstatement in service and payment of all consequential benefits. The Principal of Government Girls High School, Purnea (vide memo No. 207 dated 12.12.1984) requested the Inspectress of Schools-cum-Deputy Director of Education, Bihar, Patna for making appointment of Teachers in his school. Consequently notice was published from the office of respondent No. 3 inviting applications for appointment on the post of Assistant Teacher. Respondent No. 3, thereafter constituted a committee of three members for the purpose of holding interviews. Petitioner faced 2 interview and subsequently appointment letter was issued to the petitioner vide memo No. 5328-29 dated 27th of December, 1984, as contained in Annexure-1. Petitioner joined the school on 17.01.1985. Petitioner, after three years of service, with due permission appeared for I.A. and B.A. examination. Petitioner was granted first time bound promotion vide memo No. 5551-53 dated 31st of December 1996, as contained in Annexure-3. All of a sudden, vide memo No. 1081 dated 30.09.1999, after fourteen years of service, the Director (Secondary Education), Bihar, Patna requested respondent No. 3 to issue show cause to the petitioner and two others for terminating their services, since the respondent No. 3 had no authority to appoint. In reply to the same, respondent No. 3 vide letter no. 320 dated 7th of December, 1999 informed the Director(Secondary Education), Bihar, Patna that with regard to appointment in the female category, an enquiry is going on by the CBI since 1980. Moreover the petitioner and others have been given first time bound promotion whereas several other persons like petitioner have been appointed in the same manner. On 16.02.2001, the Director (Secondary Education), Bihar Patna again directed respondent No. 3 to issue show cause for terminating the services of petitioner 3 and others, otherwise action would be taken against respondent No.3(Annexure-6). Consequently vide Memo No. 329 dated 14.05.2001, show cause was issued to the petitioner and others. The petitioner and others thereafter submitted their show cause but vide Memo No. 435 dated 25.06.2001, as contained in Annexure 11, the services of the petitioner was terminated on the ground that apart from the appointment letter there is nothing on record to suggest about the valid appointment as there was neither any advertisement made nor any interview held prior to appointment. The said termination came to be challenged in C.W.J.C. No. 9244 of 2001. This Court vide order dated 26.07.2007, as contained in Annexure-12, quashed the order of termination with liberty to the authority to pass fresh orders in accordance with law since petitioner’s service was terminated in violation of Principles of Natural Justice. Consequently, the petitioner gave her joining on 21.08.2007 vide Annexure-13 which came to be accepted on 02.11.2007 vide Annexure-14. Subsequently, the petitioner was asked to appear vide Annexure-15 before respondent No. 3. The petitioner filed her show cause(Annexure-18 to the writ) stating in detail about the advertisement being placed on the notice board of respondent No. 3 and the conduction of 4 interview which are apparent from the proceedings dated 29.11.2007, recorded in the office of respondent No. 3. Petitioner’s appointment was again cancelled by respondent No. 3 on 18.01.2008 vide Memo No. 148-50, as contained in Annexure 19, on the ground that there was no advertisement made, no interview held, no panel was prepared nor reservation roster was followed, hence petitioner’s appointment was held to be illegal. Learned counsel for the petitioner submits that after 16 years of service, first show cause was issued in 2001 and it is very difficult for the petitioner to retain the documents with regard to the interview after 16 years of the appointment. It is further submitted that there is no dispute with regard to the fact that the post was sanctioned and that the petitioner had the requisite qualification, hence in view of the principle laid down in the case of Secretary, State of Karnataka and others versus Uma Devi and others reported in 2006(4) SCC 1, the appointment of the petitioner can not be held to be illegal. Moreover, one similarly situated Kiran Kumari Sinha who was terminated second time in similar manner like the petitioner, challenged her second termination in C.W.J.C. No. 4139 of 2008 and this Court quashed the second termination order on the ground that second termination order was passed by the respondents without considering 5 the settled law in this regard and the petitioner’s appointment can not be treated as illegal. Paragraphs 5 and 6 of the judgment of Smt. Kiran Kumari Sinha versus State of Bihar and others reported in 2010(2) PLJR 947 read as follows :- 5. “I find that on earlier occasion, when the petitioner had come before this Court in C.W.J.C. No. 9243 of 2001, challenging termination order, the respondents in their counter affidavit had not denied that the petitioner possesses requisite qualification for being appointed as matric trained Craft Teacher. It was also not denied that the petitioner was working and transferred on a sanctioned post of Craft Teacher. There is no denial that the petitioner had been appointed by the person, competent to make such appointment. It was also not denied that uninterruptedly for 19 long years, petitioner continued on that post and treated as a regular employee, as she was given increment, time bound promotion and other benefits, allowed to a regular employee. 6. Admittedly, one and the only deficiency in the appointment of petitioner was that the post was not widely advertised and interview was not held. Such kind of appointment cannot be categorized as illegal appointment rather irregular appointment and the law settled by the Supreme Court, in the matters of such appointment, 2006(4) SC 1 [: 2006(2) PLJR (SC) 363] (Secretary, State of Karnataka vs. Uma Devi) is that by 6 giving an opportunity to such appointees, they can be regularized against their posts.” Learned counsel for the State admits that the order passed in Kiran Kumari Sinha’s case has not been challenged by the State. However, he submits that since no advertisement was made and the procedure was not followed, appointment can not be treated to be irregular, rather it is illegal. The petitioner continued in service for 16 years without any intervention of the Court and neither the respondents deny the appointment of the petitioner on the sanctioned post nor they deny that the petitioner did not have the requisite qualification for the post in question. In such a situation, the appointment of the petitioner can not be held to be illegal, rather it is irregular. It is surprising that respondent authorities after 15 to 16 years of appointment raised objections about initial entry in the service, but no action is being taken against the authorities who made the appointment and allowed the petitioner to continue for decades. Learned counsel for the State fails to show about any action being taken against such authorities. The principles of regularization laid down in Uma Devi’s case(Supra), has been explained and reiterated in the case of State of Karnataka versus M. L. Kesari reported in AIR 2010 SC 2587. Paragraphs 4 and 5 read 7 as :- 4. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006(reported in 2006(4) SCC 1) : (AIR 2006 SC 1806 :2006 AIR SCW 1991). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme, and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court, however, made one exception to the above position and the same is extracted below (Para 44 of AIR): 8 “53. One aspect needs to be clarified. There may be cases where irregular appointments(not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128] : (AIR 1967 SC 1071) ; R.N. Nanjundappa[ 1972 (1) SCC 409] : (AIR 1972 SC 1767) and B.N. Nagarajan [1979 (4) SCC 507] : (AIR 1979 SC 1676) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date……..” 5. “It is evident from the above that there is an exception to the general principles 9 against „regularization‟ enunciated in Umadevi(AIR 2006 SC 1806 : 2006 AIR SCW 1991), if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in 10 motion within six months from the date of its decision(rendered on 10.4.2006). Considering the aforesaid ratio laid down by Apex Court the appointment of the petitioner can at best be held to be irregular. So far as the impugned second order of termination, as contained in Annexure-19 is concerned, it appears that the order has not been passed keeping in view the settled principle of law as elaborated above. The demand of the records of the appointment from the petitioner was also not a reasonable stand of respondent authorities. The termination of the petitioner is also bad on the ground that similarly situated Kiran Kumari Sinha’s second termination order has already been quashed and the same has not been challenged by the respondent authority, hence the order of termination of the petitioner, as contained in Annexure-19, is hereby quashed and petitioner is, directed to be reinstated forthwith in service with all consequential benefits. It is expected that the said consequential benefits shall be paid within a period of four months of the receipt of this order. With the aforesaid observations, the application stands allowed. Shageer (Dinesh Kumar Singh, J.)