IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9704 of 2008 Vinod Kumar Srivastava, son of Sri Shyama Kant Prasad, Dismissed Peon in the office of District Superintendent of Education, Siwan, P.S. Siwan, District Siwan ………… Petitioner Versus 1.The State Of Bihar 2.The Director, Secondary Education, Primary, Secondary and Adult Education Department, Government of Bihar, New Secretariat, Patna 3.The Regional Deputy Director of Education, Saran Division, Chapra 4.The District Superintendent of Education, Siwan, District- Siwan. ……………. Respondents ----------- For the Petitioner : Mr.S.B.K.Manglam, Adv. For the State : Mr.Rabindra Kr.Choubey, S.C.8 ----------- 2. 04/01/2011 This is another round of litigation by the petitioner to get the seal of approval to his appointment by the respondents and to obtain a declaration from this Court that his services were regular and therefore the same should not have been terminated by the respondents in view of the law laid down by the Constitution Bench of the Apex Court in the case of State of Karnataka Vs. Uma Devi [2006(2) PLJR (SC) 363]. Learned counsel for the petitioner has submitted that the case of the petitioner has been rejected by the Committee by impugned Annexure-13 precisely on the ground that the provisions of letter no.16441 dated 3.12.1980 2 of the Personnel and Administrative Reforms Department were not followed in his appointment. He submits that prior to this letter, a Rule framed by the Government in exercise of power under Article 309 of the Constitution of India was in vogue, a copy whereof is Annexure-14 to the writ application. As per this Rule, for appointment on Class IV posts, a Committee was constituted in the Education Department which Committee was empowered to make appointments. Therefore, the provisions of the said letter dated 3.12.1980 of the Personnel and Administrative Reforms Department cannot override the provisions of the Rules which was framed under Article 309. He submits that as per the said Rules, Regional Deputy Director of Education was made Chairman of the Committee and he was authorized to make appointment on Class IV posts. He submits that since the appointment letter, as contained in Annexure-1, was issued by the Regional Deputy Director of Education, appointment of the petitioner was valid and therefore, the same could not be cancelled on the ground that the provisions 3 of the said letter dated 3.12.1980 were not followed in his appointment. He further submits that the petitioner has continued in service for sixteen years and was confirmed and therefore also the respondents should not have terminated his services. In respect of mode and manner of appointment on a public post, the Constitution Bench of the Apex Court has laid down the law very authoritatively. It has been made clear in the judgment of the Constitution Bench that illegal appointments cannot be regularized or continued in any circumstances. As an exception, in paragraph 44 of the judgment, it has been provided that the appointees, who have continued for more than ten years and whose appointments are only irregular in nature, and not illegal, can be considered for regularization. Petitioner though has continued for more than ten years but, in view of the observations of the Constitution Bench, has to pass the test of legality of his appointment, as the Constitution Bench has made it very clear that the appointments of any duration if found illegal has to be terminated. 4 Coming to the appointment letter of the petitioner, as contained in Annexure-1, it is clear that on account of dearth of hand in the office of the District Education Officer and in the light of his recommendation, the Minister of the Department at that point of time had issued some letter for appointment of the petitioner. On the basis of the said letter of the Minister, petitioner was appointed by the Regional Deputy Director of Education. This appointment letter shows two things; (i) that there was no decision of the Committee so constituted by the said Rule of 1974; and (ii) that the petitioner was appointed solely on the orders of the Minister of the Department without any advertisement or interview or any selection process being adopted by the respondents. Learned counsel for the petitioner has drawn the attention of this Court to the pleadings made in paragraphs 7, 8, 9 and 10 of the writ application. In these paragraphs, it is stated that in view of pressing need, on the request of the Block Education Extension Officer, the Regional Deputy 5 Director of Education had called for names of eligible persons from Employment Exchange for appointment against sanctioned vacant posts of Peon. Petitioner had got himself enrolled in the Employment Exchange and, as he was holding Masters Degree, his name was recommended by the Employment Exchange, along with the names of other candidates and thereafter he was selected. It is further pleaded that since petitioner was not issued any appointment letter and the matter got delayed, he filed representation before the Minister Incharge of the Department, who issued directions to the Regional Deputy Director of Education for issue of appointment letter to the petitioner. Accordingly, petitioner was appointed by the Regional Deputy Director of Education vide Annexure-1. This pleading of the petitioner itself shows that his appointment was not pursuant to any selection process. Even if this pleading of the petitioner is accepted, it is clear that the selection process was only half way through and no final decision had been taken by the respondents culminating 6 into issue of appointment letter to the most eligible person. It is admitted that Petitioner approached the Minister Incharge and the Minister Incharge issued directions to the Regional Deputy Director of Education for appointment of the petitioner, on the basis of which appointment letter, as contained in Annexure-1, was issued. Thus, it is clear that, on his own showing, it was only on the orders of the Minister Incharge that the petitioner was appointed and not on the basis of any advertisement or any selection process. Such type of appointment clearly falls within the category of illegal appointment as pointed out by the Constitution Bench of the Apex Court itself. Since the appointment of the petitioner is clearly illegal, petitioner is not entitled to any consideration in terms of paragraph 44 of the Constitution Bench judgment in the case of Uma Devi (Supra) even though he continued in service for sixteen years. It may also be pointed out that the said 1974 Rules only provides for constitution of a Committee for appointment on Class IV posts and does not lay down any procedure, which 7 has been laid down by the said letter dated 3.12.1980, which was also admittedly not followed in the appointment of the petitioner. This Court, in the circumstances, does not find any merit in the writ application and the same is accordingly dismissed. Pradeep/ ( J. N. Singh,J.)