Mahesh Prasad Singh v. State of Bihar — 1988 DIGILAW 368 (PAT)

JUDGMENT S.B. Sanyal, J. Extra clerks of the Registration Department of Nalanda district, who are piece-rated employees and were appointed on 30-6-1982, seek quashing of Annexure 1, a letter dated 23-5-1987, by which the services of 45 extra clerks, including the petitioners, have been terminated by the Inspector General of Registration (respondent No.2) on the ground of non-compliance of the Government instructions contained in letter No. 355 dated 11-2-1982, (Annexure 1). 2. The petitioners are Matriculates. Some of them have passed the Intermediate examination and some are even Graduates. It is contended on the basis of record that the sanctioned strength of extra clerks in the Registration Department of Nalanda district at the material time was 51. The District Registrar, Nalanda (respondent No.3) having felt the need for filling up the vacancies as the work was in arrears, initiated steps to fill up the vacancies in consonance with the guidelines issued by the Inspector General, Registration, dated 25-2-1950 (Annexure 2). The posts were advertised on 10-5-1982 (vide Annexure 4). The petitioners were routed through the Employment Exchange, and after regular interview, a panel was prepared in accordance with merit on 16-6-1982 by respondent No.3 (Annexure 5); 45 persons out of the said panel were appointed as extra clerks, of whom 13 belonged to the Scheduled Castes, 16 belonged to backward classes and the rest 16 were from the general category. The petitioners were appointed on 30-6-1982 and they were sent for training from 18-8-1982. Enquiries as to their appointments were made from the office of the Inspector General of Registration as far back as on 21-5-1983 (Annexure 9) for ascertainment of the facts leading to the above appointment. It has been asserted that in the subsequent years 1985, 1986 and 1987, the Government made further appointments of extra clerks in the Registration Department of the district of Nalanda (Annexure 6). As late as 1987, the Government emphasised to continue the appointment of extra clerks in the Registration Department (Annexure 8). 3. It has been asserted that in the subsequent years 1985, 1986 and 1987, the Government made further appointments of extra clerks in the Registration Department of the district of Nalanda (Annexure 6). As late as 1987, the Government emphasised to continue the appointment of extra clerks in the Registration Department (Annexure 8). 3. Counter-affidavit has been filed on behalf of the State, wherein it has been stated that the appointments in the year 1982 of extra clerks were made against' the guidelines contained in the Government circular dated 11-2-1982 (Annexure 7) and therefore, the appointments were ab initio void; According to the State, as prior approval of the Inspector General of Registration was not obtained, there was a serious procedural lapse in the said appointments. It has been denied that there was any sanctioned strength of ext1a clerks or that the extra clerks are Government servants. It is alleged that they are only periodically appointed to clear off the copying arrears. The Government circulars issued in this regard earlier stood superseded by the Department letter No. 355 dated 11-2-1982 (Annexure 7). It has been further averred that the act of the District Registrar will not bind the State Government as the act of appointment of the petitioners was contrary to the official instructions. 4. Mr. Shyama Prasad Mukherji, Senior Advocate. appearing on behalf of the petitioners submitted that the office of the Inspector General of Registration having learnt about the appointments of the petitioners as far back as in 1983, acted illegally and to the detriment of the petitioners in terminating their services on 23-5-1987, in the absence of any complaint against them. Assuming there had been any irregularity in their initial appointment and if such action had been taken earlier, the petitioners could have availed the opportunity of being empannelled and re-appointed when further appointments of extra clerks were made in subsequent years. By the impugned action, the petitioners lost successive employment opportunities for being considered for re-employment in the said subsequent years. Termination of the services of the petitioners has been effected arbitrarily after five years of satisfactory service. He further submitted that in the impugned order contained in Annexure 1, the irregularity alleged has not been spelt out beyond the statement that the appointments had not been made as per the letter of the Inspector General of Registration dated 11-2-1982 (Annexure 7). He further submitted that in the impugned order contained in Annexure 1, the irregularity alleged has not been spelt out beyond the statement that the appointments had not been made as per the letter of the Inspector General of Registration dated 11-2-1982 (Annexure 7). According to the learned counsel this itself vitiated the impugned order in view of the decision in Bijoy Kumar Bharti vs. The State of Bihar (1983 P.L.J.R. 667) and particularly the observation made in paragraph 24 of the judgment. According to the learned Counsel, if no reasons are supplied, the order would be liable to be challenged on the ground that the non-recording of reasons raises a presumption that no good reasons exist. He further submitted that the reasons disclosed in the .counter-affidavit that the appointments were made without prior approval of the Inspector General of Registration could not be entertained as a public order must be publicly made and the Courts should refrain from finding out the reasons from the counter-affidavit of the State. In this connection he relied on Mohinder Singh Gill vs. The Chief Election Commissioner (A. I. R. 1978 Supreme Court 857) where the Supreme Court laid down that when statutory functionary makes an order its validity must be judged by the reasons as mentioned therein and the same could not be supplemented by the fresh reasons in the shape of affidavit or, otherwise. Mr. Madhoop, the Standing Counsel No I, appearing on behalf of the State, on the other hand, submitted that the reason for termination has been spelt out in the impugned order inasmuch as it has been stated that the appointments are irregular for violation of the Government circular dated 11-2-1982 (Annexure 7). Learned Counsel further argued that the writ petition is not maintainable in view of the decision of this Court in Chetlal Sao VS, The State of Bihar, reported in 1985 PLJR 149 (Full Bench), where this' Court has held that the doctrine of promissory estoppel will not apply to the State for the purported acts of some of its officers directly contrary to its general instructions and directions. Learned counsel has further denied that there is any sanctioned strength as alleged by the petitioners. 6. Learned counsel has further denied that there is any sanctioned strength as alleged by the petitioners. 6. We have just delivered a judgment in C. W. J. C. No. 2878 of 1987 which related to the appointments of extra clerks in the district of Madhubani by the District Registrar; who is the District Magistrate of the district. In that case also, the appointments of extra clerks made on 7-8-1982 were cancelled by the respondent Inspector General of Registration on 28-3-1987 for the same reason, namely, it was violative of the letter of the Inspector General of Registration bearing No. 355 dated 11-2-1982. The stand of the State in that case was also that the appointments were made without obtaining prior approval from the Inspector General of Registration. Neither in this case nor in C.W.J.C. No. 2878 of 1987, the State questioned the modality adopted by the District Registrar in making the appointments, namely, the candidates were duly registered in the Employment Exchange, the selection process, their educational qualification and their age. In that case as well as in this case, due consideration had been given for appointment of Scheduled Castes and backward classes. In the instant case, the reservation has even gone up to 69 per cent, inasmuch as out of 45 appointments, 29 were from the reserved quota. In C.W.J.C. No. 2878 of 1987, on amongst other grounds, the order terminating services of the extra clerks was quashed because of complete misconstruction of the circular of the Inspector General of Registration dated 11-2-1982 (Annexure 7). It was held that the Government's decision for obtaining prior approval for appointment of extra clerks in the Department of Registration arises only when the strength of extra clerks has to be increased. When such a need is felt, the Inspector General of Registration should be forwarded by June prior three years statements and figures of the work-load, in order to enable the Inspector General of Registration to take decision by the month of September of the said year. The extra clerks should be appointed after obtaining the names from the Employment Ex-change, and only after advertisement, the selection be made by the Selection Committee bearing in view the reservation principles. The list of selected candidates, according to this instruction, should be published in the month of December for the same being considered for appointment in the following year. The extra clerks should be appointed after obtaining the names from the Employment Ex-change, and only after advertisement, the selection be made by the Selection Committee bearing in view the reservation principles. The list of selected candidates, according to this instruction, should be published in the month of December for the same being considered for appointment in the following year. 'The District Registrar must not make piece-meal appointments in the midst of the year. This Court further held in C.W.J.C. No. 2873 of 1987 that the guideline of 11th February 1982 (Annexure 7) giving out the modality of preparation of the selection list in the year 1982 was meant for appointment of extra clerks in the year 1983, and years subsequent thereto, and the same could not have been applied in respect of appointments in the year 1982. The appointments of 1982 will be governed as per the guidelines of the Inspector General of Registration dated 25-2-1950 (Annexure 2) and Rule 26 (2) (a) of the Registration Manual. Neither in that case nor in this case, the stand of the State has been of any violation of Rule 26 (2) (a) of the Registration Manual or the circular dated 25-2-1950 (Annexure 2) by the District Registrar in making the appointment of extra clerks. The State has not been able to establish that by reason of the impugned appointments either in that case or in this case, three has been unauthorised increase in the strength of extra clerks. In this case it has been averred that the strength of extra clerks was 51 and within the said strength, 45 extra clerks were appointed be cause of administrative exigencies. There is no finding that the work load of the year 1982 did not justify the appointments. The stand of the State, as I have been able to gather from the counter-affidavit, is that any initiation of the proceeding for appointment of extra clerks must be preceded by prior approval of the Inspector General of Registration which is, however, not the requirement of the Circular dated 11th February, 1982 (Annexure 7) as I have read it. Further, this circular has no application to the appointments of extra clerks of the year 1982. 6. I am, therefore, of the opinion that this case is fully covered by the judgment just now delivered in C. W. J. C. No. 2878 of 1987. Further, this circular has no application to the appointments of extra clerks of the year 1982. 6. I am, therefore, of the opinion that this case is fully covered by the judgment just now delivered in C. W. J. C. No. 2878 of 1987. Following the said judgment, Annexure 1, the order of termination dated 23-5-1987, is, accordingly, quashed. The writ petition is allowed as aforesaid with costs. Hearing fee is assessed at Rs 500/-.