IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13902 of 2002 MOHAN MISHRA, S/O SHRI VISHWANATH MISHRA, R/O VILLAGE-GANGAPATTI, P.S.-BAHADURPUR, DISTRICT- DARBHANGA. ……………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, DARBHANGA DIVISION, DARBHANGA. 4. THE BLOCK EDUCATION EXTENSION OFFICER, BLOCK- BAHADURPUR, DISTRICT-DARBHANGA. ………………………RESPONDENTS. ----------- 4 27.08.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner in this writ application has prayed for quashing of order dated 12.02.2002 as contained in Annexure-12 by which the services of the petitioner has been terminated on the ground that his initial appointment was illegal and was made without advertisement and without following the process of selection as laid down in law. It appears that against the earlier order of termination passed by the Regional Deputy Director of Education, the petitioner had moved this Court through C.W.J.C. NO. 9656 of 1998. This Court while disposing of the writ application, had given liberty to the petitioner to file representation and directed the respondents to consider the same and pass orders afresh. Accordingly, the impugned order Annexure-11 has been passed after consideration of the - 2 - representation of the petitioner. It is admitted position that the petitioner’s initial appointment was not pursuant to any advertisement or selection. Learned counsel for the petitioner submits that petitioner’s services were time to time extended on Class-IV post and he continued in service till the earlier termination order was passed by the authorities. It is also admitted that till the order of termination of the petitioner was passed the services of the petitioner were not regularized. A counter affidavit has been filed in the case. In the counter affidavit it is stated that the petitioner’s case was never placed before the Divisional Establishment Committee for regularization and, therefore, petitioner has continued in service, till his termination, in temporary capacity. Therefore, it is submits that the judgment of the Constitution Bench of the Hon’ble Supreme Court as rendered in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. reported in 2006 (2) PLJR 363 clearly applies to his case and his case can only be considered in terms of paragraph 44 of the said judgment. However, since admittedly the appointment of the petitioner was not as a - 3 - consequence of advertisement or selection process, the appointment was illegal and not irregular and, therefore, the question of his absorption/regularization can not be considered by the respondents. In view of the admitted position that his appointment was illegal, the authorities had rightly terminated his service by impugned order. Learned counsel for the petitioner is not in a position to dispute this submission of learned counsel for the State. However, he submits that since the petitioner has continued in service for 13 years, an opportunity may be given to him to apply for his fresh appointment as and when the respondents take up the process of appointment on Class-IV posts in their offices, and in case petitioner applies, this Court may direct the respondents to give the petitioner age relaxation and consider his case on merits for appointment on Class-IV posts. Considering the rival submissions and the factual position appearing in the case, this Court does not find that any relief can be granted to the petitioner at this stage. Therefore, the writ application is dismissed. However, it is observed that as and when the petitioner applies for his appointment in response to any advertisement - 4 - published by the respondents the case of the petitioner shall be considered on merits and necessary age relaxation shall be allowed to him considering the fact that he has served the respondents for 13 years. Arvind/ (J. N. Singh, J.)