Research › Browse › Judgment

Patna High Court · body

1997 DIGILAW 586 (PAT)

Jai Nandan Rai v. State of Bihar

1997-08-14

ASOK KUMAR GANGULY

body1997
This writ petition has been filed by 35 writ petitioners impugning the order dated 22nd January 1990 passed by the Deputy Secretary to the Government, Department of Animal Husbandary, Government of Bihar, Patna, whereby the Regional Director, Animal Husbandary North Bihar Range, Muzaffarpur has been directed to terminate the services of all those persons, who have been appointed by the respondent No.4, except the persons who have been appointed on compassionate ground or the persons, who have been appointed from the farm casual labourers on regular basis. 2. After filing of the writ petition at a pre-admission stage by an order dated 20-4-1992, the writ petition was dismissed. The case of the petitioner Nos. 2, 3, 7, 10, 19, 21, 23, 24, 32, 34 and 35 are concerned. Against the said order dated 20th April, 1992 a Special Leave Petition was filed before the Hon'ble Supreme Court and the Hon'ble Supreme Court by an order and judgment dated 22nd November, 1996 quashed the said order dated 20th April, 1990 interalia on the following grounds: "No reasons have been advanced by the High Court in support of its conclusions while dismissing the writ petition. The absence of reasons has deprived this Court to know the circumstance which weighed with the High Court to dismiss the writ petition at the thresh-hold. It was an unsatisfactory method of disposal of the writ petition. Necessity to give reasons which disclose proper appreciation of the problem posed before the Court needs no emphasizing. Apart from informing the aggrieved party to the proceedings of the reasons, which it may be able to demonstrate in the higher forum as erroneous or irrelevant, it also enables the higher forum to test the correctness of those reasons when the same are put in issue before the higher forum. Under these circumstances, the order of the High Court cannot be sustained. We, accordingly, allow this appeal and set aside the order of the High Court dated 20th April, 1992 and remand the writ petition to the High Court for fresh disposal on merits. It is clarified that we shall not be taken to have expressed any opinion on the merits of the controversy in the case. The High Court is requested to dispose of the writ petition expeditiously." 3. It is clarified that we shall not be taken to have expressed any opinion on the merits of the controversy in the case. The High Court is requested to dispose of the writ petition expeditiously." 3. It was however, made clear by the Hon'ble Supreme Court in its order that it has not expressed any opinion on the merits of the controversy in the case. The Hon'ble Supreme Court requested the High Court to dispose of the writ petition expeditiously. The Hon'ble Supreme Court also granted an interim order of stay and the said interim order of stay was continued from time to time. 4. Learned counsel appearing for the petitioners stated that by virtue of the said stay order granted by the Hon'ble Supreme Court, the petitioners are continuing in service till today. 5. Learned counsel further submitted that before passing the final order, there Hon'ble Supreme Court at an earlier stage has referred to paragraph 20 of the Special Leave Petition in its order dated 12th July, 1996. It is further submitted that at the pre admission stage the Hon'ble Supreme Court by an order dated 12th July, 1996 referred to paragraph 20 of the Special Leave Petition wherein it has been stated that even after the termination of the services of the petitioners. appointments have been made and regularised on class III posts by Respondent No.4 himself by following the same procedure, as was adopted in the case of the petitioners and the answer to the said averments given by the Deputy Director, Animal Husbandary, that no information has been received in the department up till now was also considered and on such consideration the Hon'ble Supreme Court observed that the reply is unsatisfactory. 6. But this Court has noticed that in the final order by which the Special Leave petition was disposed of and the writ petition has been remanded to this-Court for hearing, the only ground on which the Hon'ble Supreme Court interfered was that no reasons has been assigned and the Hon'ble Supreme Court has made it very clear that no observation has been made on the merits of the controversy between the parties. In that view of the matter this Court proceeds on the basis of the observation of the Supreme Court and has nothing to do with the merits of the controversy between the parties. 7. In that view of the matter this Court proceeds on the basis of the observation of the Supreme Court and has nothing to do with the merits of the controversy between the parties. 7. The other contention, which has been raised by the petitioners' counsel is that the manner in which the petitioners have been appointed has been followed in respect of other persons, who have been appointed in different Zones and the appointment of those persons have not been terminated. 8. The petitioners have not been able to point out in the writ petition that the petitioners have been appointed pursuant to any valid selection process. A counter affidavit has been tiled in this case wherein it has categorically been stated in para 6 of sub-para (ii) that no advertisement has been published, applications were not invited, scrutiny of applications was not made, principle of roster and reservation was also not followed. It has been stated in the said paragaraph 6 of sub-para (ii) that ad hoc appointment of the petitioners have been made by the Regional Director of Animal Husbandry, Muzaffarpur without observing the procedure prescribed for making recruitment to different posts. In paragraph 6 of sub-para (iii), it is made very clear that these appointments are back door appointments and are illegal. 9. In the rejoinder affidavit which has been filed to the said counter affidavit, the averments in paragraph 6 have been dealt with in paragraph 4 of the said rejoinder. In the said paragraph 4, no specific denial has been given to the clear charge made out in the counter affidavit in paragraph 6 that the petitioners have been appointed by way of backdoor method and without following any procedure. 10. Therefore, the case of the respondents that the appointments of the petitioners was not legal and valid has not been controverter by the petitioners in the reply to the counter affidavit. Nor has it been done in course of argument. 11. Counsel for the petitioners has urged Chat the Regional Director is empowered to appoint such-persons and at the particular time, when such appointments of the petitioners have been made, he had such power. 12. Nor has it been done in course of argument. 11. Counsel for the petitioners has urged Chat the Regional Director is empowered to appoint such-persons and at the particular time, when such appointments of the petitioners have been made, he had such power. 12. This Court is of the view that even if it is assumed that the Regional Director has the power to make appointment, such power must be exercised in the instant case on the basis of a due and valid selection procedure. As no procedure of appointment has been followed, the appointments of the petitioners are obviously violative of Articles 14 and 16 of the Constitution of India. Therefore, merely the fact that the respondent No.4 is authorised to appoint, even if such authority is accepted, cannot clothe the appointments of the petitioners legally when such appointments have been made without following any procedure. 13. The other contention which has been raised by the learned counsel for the petitioners is that in other areas similar appointments have been made and such appointments have been allowed to continue, so the termination of the petitioners' appointments amounts to violation of Article 14. This contention is totally erroneous. 14. In Secratary, Jaipur Development Authority, Jaipur Vs. Daulatmal Jain and others reported in (1997) 1 Supreme Court Cases 35, it has been held by the Hon'ble Supreme Court that If some persons derive benefit illegally, others similarly circumstanced cannot claim the same benefit on ground of equality. If such principle of equality is upheld, the same would amount to perpetuating illegality by judicial process. Such observations have been made in paragraphs 24 and 28 of the said Judgment where case laws on the point have been discussed. Following the said ratio in the case of Secretary, Jaipur (Supra), this Court has to over-rule the aforesaid contention on the part of the learned counsel for the petitioners. 15. It appears from the record of the case that in this case, the petitioners were appointed between. 1987-89 and the impugned order was passed in the month of 22 January, 1990. The writ was moved. Then on the strength of the stay order, the petitioners were continued in service for years together. That is a different matter. The impugned order has been passed within a short time of the detection of the illegality in the appointments of the petitioners. 16. The writ was moved. Then on the strength of the stay order, the petitioners were continued in service for years together. That is a different matter. The impugned order has been passed within a short time of the detection of the illegality in the appointments of the petitioners. 16. Taking into consideration all these facts and circumstances, this Court holds that no relief can be granted to the petitioners. The writ petition is therefore, dismissed and all interim orders are vacated.