Amar Komar Singh v. State of Bihar — 1993 DIGILAW 491 (PAT)

S.B. SINHA, J. This application is directed against an order dated 1.6.1992 passed by the respondent No. 3 and as contained in Annexure-3 to the writ application whereby and whereunder the services of the petitioner had been terminated. 2. The petitioner allegedly applied for the appointment for the post of Assbtant Clerk Cum-Godownkeeper in the National Central Co-operative Bank Ltd. Bettiah, West Champaran (hereinafter referred to as the said Bank). Allegedly the petitioner was appointed after interview on 8.4.1986. The aforesaid Co-operative Bank deputed the petitioner to Lauria Sugar Factory by a letter dated 1.5.1986. He served in the aforementioned factory from 8.4.1986 to February, 1991 as thereafter the Bihar State Sugar Corporation Limited returned the services of the petitioner to the Respondent-Bank. 3. However, the petitioner was not allowed to join by the Bank and he allegedly continued to occupy the quarter allotted to him by the Bihar State Sugar Corporation Limited. The Board of Directors of the Bank was dissolved On 12.11.1986 and an Administrator was appointed and tile appointment of one Singhasan Prasad appointed alongwith the petitioner at Serial No. 1 of the panel was terminated on the ground that the transactions of the Bank with Sugauli Sugar Factory have been closed. The said Singhasan Prasad filed a writ petition in this court being CWJC No. 2254 of 1987 by a judgment dated 28.3.1991 as contained in Annexure-4 to the writ petition the said writ application was allowed with certain observations. 4. The Administrator allegedly in terms of the direction of the Co-operative Department inter-alia held that the appointment of the petitioner and others were illegal and directed the Executive officer of the Bank to terminate their services which was done by reason of the Impugned order dated 19.2.1992 as contained In Annexure-6 to the writ application. 5. It appears that the petitioner was directed to file show cause by a letter dated 19.2.1992. He filed a show cause and thereafter the aforementioned order dated 1.6.1992 was passed. 6. In this case a counter affidavit has been filed wherein it has been contended that from a perusal of Annexure -7 to the writ application, it would appear that various reasons have been assigned for the purpose of holding that the appointment of the petitioner was wholly Illegal and invalid. 7. It has been found that the appointment was made without their being any sanctioned post. 7. It has been found that the appointment was made without their being any sanctioned post. Further no advertisement was issued in the daily newspaper nor a written test was held. It has been submitted that neither the provisions of Section 66 (2) (B) of the Bihar and Orissa Co-Operative Societies Act had been followed nor the directions as contained in Rule 38 of the said Rule were followed before appointment of the petitioner. It has been stated that not only the petitioner had been given full opportunity to file show cause, but the matter was heard In presence of the petitioner on 3.4.92, 21.4.92 and on 27.4.92. 8. In the counter affidavit, it has further been contended that a purported notice was stuck in the notice Board of the Office of the Bank solely with a view to give illegal advantage to the petitioner who was already tipped for appointment. 9. According to the respondents Specific direction had also been issued by the Registrar. Co-Operative Societies to the event that for filling up all vacancies an advertisement In the daily newspaper must be published. 10. It was further submitted that neither any written test was held nor any selection Committee was constituted in terms of the notification of the State Government of contained in Annexure-D to the counter affidavit for that purpose. 11. It has been submitted that in CWJC NO. 2254 of 1987 (Shri Singhasan Prasad, Vs. State of Bihar all the points have not been urged and thus the petitioner cannot take advantage from the said order of this Court. It has further been stated that from a perusal of the petitioners explanation as contained in Annexure-C to the counter affidavit. it would appear that he has virtually given no explanation whatsoever. 12. A supplementary Counter affidavit has been filed on behalf of the respondent No.4 wherein it has inter alia been stated that there had been only one post of Godown Keeper and as such appointment of more than one Godown Keeper does not arise. 13. It has been submitted that subsequent appointments of all the persons were found to be illegal It was submitted that in view of the judgment of this Court and as the name of Sri Singhasan Prasad was at Serial No 1 in the so called panel of six persons, he had been reinstated. 13. It has been submitted that subsequent appointments of all the persons were found to be illegal It was submitted that in view of the judgment of this Court and as the name of Sri Singhasan Prasad was at Serial No 1 in the so called panel of six persons, he had been reinstated. it has been submitted that the Managing Committee of the Bank has been superseded in view of the various acts of mis-management by is by the State of Bihar in terms of Section 41 of the Bihar and Orissa Co-operative Societies Act. It was further been stated that In the matter of petitioner and other (s) even the reservation policy had not been followed by the old Managing Committee. 14. In the reply to the counter affidavit filed by the petitioner a purported order sheet as contained in Annexure-9 thereto has been annexed for the purpose of showing that the appointment of the petitioner were allegedly done on a regular basis. 15. Mr. Ripudaman Prasad Sinha has inter-alia submitted that In view of the fact that the petitioner was appointed upon holding of interview and a panel was also prepared, the same clearly goes to show that the appointments of the petitioner was valid. 16. It was, however, submitted by Mr. Verma that from a perusal of Annexure-9 to the writ application, it would appear that the same does not contain the signatures of all the Directors of the Board. 17. From Annexure-B to the counter affidavit. it appears that only one post of Godown Keeper was sanctioned. It, therefore, does not stand to any reason as to why six persons were appointed against one vacant post of Godown Keeper. Further assuming that Annexure-9 is a genuine document, from the said note sheet. it appears that a suggestion was given that an advertisement was to be issued for filling up the vacant posts from the said note sheet, it Further appear that two persons were required to be appointed as Godown Keeper and thus It wall suggested that approval of the Co operative Department Patna may be obtained in this regard. However, It does not appear from Annexure-9 to the writ application as to whether any advertisement was issued or not. However, It does not appear from Annexure-9 to the writ application as to whether any advertisement was issued or not. nor does it appear that any sanction for the post of Godown Manager had been obtained but strangely the applications filed by various candidates Including the petitioner and the 'aforementioned Singhsan Prasad were taken up consideration. 18 It further appears that only a purported oral interview was taken and stat out of eight c candidates were selected, whereafter Singhasan Prasad and the petitioner were directed to be deputed to Sugauli and Loria Mills and it was further directed that their salary would be paid by the Sugar Factory and thus no financial burden would be Imposed upon the Bank. However, the Honorary Secretary observed that later On their services may be adjusted. It is, thus evident that neither the procedures for selection were followed nor the provisions of Article 16 of the Constitution of India was complied with. Evidently the appointment of the petitioner had been illegal. 19. In any event from Annexure B to the counter affidavit. It appears that 40% of the posts were only to be filled up by direct recruitment and 60% of the posts were to be filled up by promotion for the purpose of filling up vacancy by direct recruits, a written examination and Interview were to be held. for the purpose of selection of candidates and other matters requisite actions were to be taken by a committee consisting of the Chairman of the Bank, Additional or Joint Registrar of the Co-operative Society of the concerned division, two Directors of the Bank and in case a Honourary Secretary has been appointed the said authority had to be Included In the Committee by way of compulsory measure, the Managing Director and/or Executive Officer of the Bank, a representative of the Bihar State Co-operative Society and a representative of NABARD. 20 It was not been disputed before us that the appointment of the petitioner bad not been done by such a Committee. We have thus no other option but to hold that the appointment of the petitioner was absolutely illegal. 21. This aspect of the matter has been considered in depth by a Division Bench of this court in Teja Prasad Vs. We have thus no other option but to hold that the appointment of the petitioner was absolutely illegal. 21. This aspect of the matter has been considered in depth by a Division Bench of this court in Teja Prasad Vs. State of Bihar reported in 1992(2) PLJR 568, wherein it has been held that any appointment made In contravention of Section 66B of the Act would be illegal and in such cases even the principles of natural justice have not been required to be followed. The Division Bench observed :- "Section 66B bas been quoted above. It would appear from a bare perusal that the power has been conferred upon the State Government to determine the nature and number of posts, qualifications, mode of recruitment, conditions of service etc, of the personnel In the various co-operative societies. At the very outset I have briefly mentioned the back ground and the underlying object with which the provisions were incorporated In the statute book in 1982 and 1989. If in view of large scale illegal appointments made without following the established norms causing financial and administrative vagaries on account of inefficiency and over staffing provision was made to regulate the process of recruitment, conditions of service etc, it cannot be said to be arbitrary. Conferring power upon the State Government to frame rules laying down and determining the mode of appointment etc, is not un-common to service Jurisprudence. The submission as to absence of any mechanism for determination of the contravention has no substance. A grievance of that nature could be made only if any adjudication was necessary with some element of discretion in the authority. But If the legislature itself provides and declares certain category of appointment void nothing requires to be adjudicated. Rules of Datural justice are not statutory rules the application of which cannot be excepted It is true that violation of rules of natural justice Is itself a prejudice but if its exclusion is permissible even by necessary implication I fail to understand how, for that reason the provision can be said to be arbitrary and, therefore, Violative of Article 14. In certain cases bonafide appointee may also be deprived of their jobs, but their interest can be protected by issuing appropriate direction as, indeed I propose to give in these cases. In certain cases bonafide appointee may also be deprived of their jobs, but their interest can be protected by issuing appropriate direction as, indeed I propose to give in these cases. The last part of subsection (2) provides for recovery of salary and other allowances paid to the persons whose appointments are said to be void under Section 40. Section 40 of the Act, inter alia, empower the Registrar to direct' any person who has taken part in the organisation or management of the society or any past or present officer of the Society to continue to the assets of the society by way of compensation in respect of any payment which is contrary to the rules and bye-laws of society and loss of money by reason of his culpable negligence or misconduct, or his failure to include in the accounts or on account of misappropriation or fraudulent retention of any property by him, Section 66 B (2) in terms does not provide for recovery of money from the employees. The words' shall be recoverable under Section 40” may be interpreted to mean that the liability created by the provision is of similar nature and of the same very persons as mentioned therein i.e. the person who has taken part In the organisation or management of the society or any past or present officer of the Society. 22. This aspect of the matter has also been considered by the other Division Bench of this court in the cases Vijay Kumar Vs. State of Bihar & ors reported in 1993 (1) PLJR 99, Smt. Madhuri Kumari Vs. the State of Bihar & others reported in 1993 (1) PLJR 449 Sitaram Thakur Vs the State of Bihar & others reported in 1993 (2) PLJR 140, Dr. Nityanand Pd. Gupta Vs. the State of Bihar and other reported in 1993 (2) PLJR 221, Manoj Kumar Vs. the State of Bihar reported in 1993 (1) BLJR 635 . Manoj Prasad & ors Vs. Ranchi University and other reported in 1993 (2) PLJR 893 and Gopi Krishna Paithak and ors Vs. Ranchi University and ors. reported in 1993(2) PLJR 897. 23. In this view of the matter, no relief can be granted the petitioner in this writ application. the State of Bihar reported in 1993 (1) BLJR 635 . Manoj Prasad & ors Vs. Ranchi University and other reported in 1993 (2) PLJR 893 and Gopi Krishna Paithak and ors Vs. Ranchi University and ors. reported in 1993(2) PLJR 897. 23. In this view of the matter, no relief can be granted the petitioner in this writ application. However, it goes without saying that if the respondents take any decision to fill up the vacant posts and in the event, he apply therefor, the case of the petitioner should be considered alongwith the cases of all eligible candidates. In view of the fact that the petitioner has put in service for a number of year, we hope and trust that the respondent shall sympathetically consider the case of the petitioner for the purpose of relaxation of age bar. 24. This application, therefore, is dismissed with the aforementioned observations, but in the facts and circumstances of the case, there will be no order also costs. Gurusharan Sharma, J. I agree. Application dismissed.