Letters Patent Appeal No.1324 OF 2002 ************* Against the Judgment and Order dated 8th of October, 2002 passed by the Hon’ble Mr. Justice Narayan Roy in C.W.J.C. No.9272 of 2002. --------- THE STATE OF BIHAR & ORS-------------------(Appellant) Versus SHAKTI SHANKAR SINHA----------------------(Respondents) ---------- For the Appellants: Mr. Sunil Kumar Mandal---- S.C. No.15 Mr. Bipin Kumar, J.C. to S.C. No.15 For the Respondent: Mr. Shyam Pd. Mukharjee -----Sr. Advocate, Mr. Satish Kumar Aggrawal Mr. Binay Kumar -------------Advocate. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. By a notice dated 31st October, 2001, it was held out to the respondent-writ petitioner that a list of illegal appointees have been prepared, who had been appointed without following the mandatory rules for appointment and in that list, the name of the respondent-writ petitioner has been included. It was stated in the said notice that the respondent- writ petitioner should show cause as to why his services should not be terminated. The respondent-writ petitioner gave a reply thereto. Thereupon by an order dated 11th February, 2002, the 2 services of the respondent-writ petitioner were terminated. The writ petition challenging the order dated 11th February, 2002 having succeeded before a learned Single Judge of this court, the present appeal has been filed. 2. It is the case of the appellant that the respondent was appointed on a Class-IV post on 29th May, 1985 when he did not respond to any advertisement and he did not go through any selection process. It is the contention of the appellant that the very appointment of the respondent is thus, void ab initio being in total disregard of the constitutional scheme as also the recruitment rules framed by the State. It is the case of the appellant that on the basis of the recommendation of the Head Master, the respondent was appointed on a Class-III post on 4th January, 1990 and such appointment is also contrary to specific rules made by the State Government. It is the contention of the appellant that since the appointment of the respondent was void ab initio, the same could be put to an end at any point of time and in that matter, it was not even necessary to give a notice. It was contended that having regard to the nature of the appointments, as would be evident from the letters of appointments, appointing him on 3 Class-IV and Class-III posts as well as his reply to the show cause, the appointments of the respondent were illegal and not irregular. 3. Anything contrary to law being illegal is void. No edifice can be built up without a foundation and an illegal thing being void, the same is no foundation at all. In the circumstances, if the very appointment is void, it is void from the date of the appointment and as a result, a declaration thereof at a later point of time is only a declaration to that effect. If the appointment is void, the person concerned does not acquire the status of employee and accordingly, is not protected by Article 311 and as such, question of giving prior notice etc. may not apply. 4. However, legality of an appointment is required to be balanced on the platform of human right. A human, who is an employee, cannot be persecuted with illegality of his appointment continuously throughout his tenure in employment. 5. In the instant case, the alleged void appointment was detected in 1992 as is evident from a show cause issued by the same authority, who issued the show cause 4 in 2001 to the respondent. In the show cause of 1992, it was alleged that appointment of the appellant is in violation of rules. It was indicated that the appointment was made without any advertisement. It was also stated that the appointment was without undertaking any selection process. In the reply given to the said show cause, what the respondent had stated was repeated by him in the reply to the show cause of 2001, in which, of course, illegality of appointment had not been elaborated. 6. After receipt of the reply to the show cause given in 1992, the authority did not take any action thereon, and thereby held out by sub-silentio that it would not take any action thereon. The matter thus stood concluded by representation so made by the authority concerned. The selfsame authority nine years later could not reopen the matter thus concluded. Only on that ground we refuse to interfere with the Judgment and Order under appeal and accordingly the appeal is dismissed. Patna High Court, 8th September, 2008, Mkr./A.F.R. (Barin Ghosh, J.) (C.M. Prasad, J.)