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1998 DIGILAW 127 (PAT)

Ajit Kumar v. State of Bihar

1998-02-11

NAGENDRA RAI

body1998
Order 1. Heard learned counsel for the parties. 2. This writ application is being disposed of at the stage of admission itself. 3. The petitioner has filed the present application for quashing the order dated 31.10.1996, issued by the Managing Director of the Chapra District Central Co-operative Bank, Chapra (hereinafter referred to as 'the Bank') terminating the services of the petitioner, who was working as an Assistant Engineer in the said Bank. 4. The Bank is a Society registered under the Bihar Co-operative Societies Act and Bihar Co-operative Societies Rules and its management vests in the Committee of the management constituted in accordance with the provisions of the said Act, Rules and the Bye-laws. In 1985-86, the National Bank for Agriculture and Rural Development (hereinafter referred to as 'NABARD') sponsored a scheme, namely, Non-Farm Finacing Scheme. With a view to extend financial assistance to non-farms, the NABARD made a provision for establishment of a monitoring and evaluation cell. In order to establish the aforesaid monitoring and evaluation cell, the NABARD issued a letter dated 27.1.1988 to the Registrar, Co-operative Societies of all States with respect to assistance from Research & Development (R & D) Fund of NABARD for setting up/strengthening Technical, Monitoring and Evaluation (TME) Cells in State Co-operative Banks, State Land Development Banks and District Central Co-operative Banks for financing agro-industrial and other small and rural industries. A copy of the said letter has been annexed as Annexure 2 to the writ application. It was provided in the said letter that the key personnel should be engaged or appointed to the TME Cells in the non-farm sector. The key personnel should be professionally qualified preferably with graduate or post graduate qualification in the relevant discipline and. having a minimum of 2 to 3 years experience in the area of specialisation. He should not merely be a graduate of any discipline working in the general/financial side. The key personnel should be directly associated with the work of identification, project formulation, appraisal, monitoring and evaluation with regard to schemes of non-farm sector. 5. According to the petitioner, in pursuance of the aforesaid Scheme sponsored by the NABARD, the Registrar of the Co-operative Societies issued a letter to the Bank in question directing to implement the said Scheme in terms of the direction contained therein. 5. According to the petitioner, in pursuance of the aforesaid Scheme sponsored by the NABARD, the Registrar of the Co-operative Societies issued a letter to the Bank in question directing to implement the said Scheme in terms of the direction contained therein. Thereafter, the Respondent-Bank established a TME Cell and the petitioner filed an application for appointment to the post of Technical Engineer and an interview was held and, thereafter, the petitioner was appointed on 4.3.1991 on contract basis. A copy of the appointment letter has been annexed as Annexure 4'. Thereafter, it is stated, the petitioner continued to work as Assistant Engineer and his services were approved by the Managing Committee of the Bank. In 1995, the Managing Committee was superseded and it was taken over by the State Government and Respondent no. 3 was appointed as an administrator and, thereafter, he issued a notice to the petitioner to explain as to what work he had done between the period February, 1994 to October, 1996. Thereafter, the petitioner filed a show-cause. Thereafter, the impugned order has been passed terminating the services of the petitioner on the ground that the petitioner had not done any work between the period February, 1994 to October, 1996 and the Bank is running in loss and there is every chance of it being closed because of bad financial position. The other ground was that the appointment of the petitioner itself was made without following any procedure for appointment to the post of Assistant Engineer. 6. A counter-affidavit has been filed on behalf of the Bank and the stand of the Bank is that in terms of the aforesaid Scheme of the NABARD, as contained in Annexure 2, professionally qualified, preferably with graduate or post graduate qualification in the relevant discipline and having a minimum of 2 to 3 years experience in the area of specialisation, have to be appointed after observance of the provisions of Articles 14 and 16 of the Constitution. However, in this case, no advertisement was ever made and the appointment of the petitioner was not made by competent authority. This apart, there was requirement of minimum 2-3 years experience for appointment to the post, whereas, the appointment letter of the petitioner itself shows that he had not passed at that time even the Engineering Examination. 7. However, in this case, no advertisement was ever made and the appointment of the petitioner was not made by competent authority. This apart, there was requirement of minimum 2-3 years experience for appointment to the post, whereas, the appointment letter of the petitioner itself shows that he had not passed at that time even the Engineering Examination. 7. Learned counsel for the petitioner submitted that the impugned order, as contained in Annexure 15, is vitiated because the same has been passed without affording an opportunity of hearing to the petitioner. Secondly, he submitted that the Scheme was of the NABARD and the Bank was not competent to remove the petitioner from service. 8. In my view, none of the submissions raised on behalf of the petitioner has any substance. Paragraph 5 of Annexure 2, which contains the Scheme sponsored by the NABARD, deals with the definition of Key Personnel in TME Cell (Non-farm Sector), which runs as follows:- "The Key personnel for this purpose are defined as those who are professionally qualified, preferably with graduate or post graduate qualification in the relevant discipline and having a minimum 2-3 years experience in the area of specialisation. He should not merely be a graduate of any discipline working in the general/financial side. The Key personnel should be directly associated with the work of identification, project formulation, appraisal, monitoring and evaluation with regard to Schemes of non-farm sector." From a perusal of the said paragraph of the Scheme, as quoted above, it appears that the person appointed should not be only graduate, but should have minimum 2 to 3 years experience in the area of specialisation. Admittedly, when the petitioner was engaged, he did not possess any experience. His result for Engineering had not been published. Thus, he was not qualified to hold the post on the date when he was appointed vide Annexure 4. This apart the appointment of the petitioner was made through backdoor entry as neither any advertisement was made nor names were called for from the Employment Exchange and the appointment was probably on contract basis, subject to the approval of the State Government. Thus, the appointment of the petitioner from the very inception was illegal. In such a case, an opportunity of hearing before termination of service is not required. 9. Thus, the appointment of the petitioner from the very inception was illegal. In such a case, an opportunity of hearing before termination of service is not required. 9. The apex court in the case of State of M.P. vs. Shyama Pardhi, reported in (1996) 7 S.C.C. 118 held that in a case like the instant one, it is not necessary to give an opportunity of hearing before terminating the employment. It is apt to quote paragraph 5 of the said judgment, which runs as follows : “It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualification had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question or violation of the principles of the natural justice does not arise. A ratio of Shrawan Kumar Jha vs. State of Bihar strongly relied, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this court interfered with, directed the Government to reinstate them into service and further directed them to send the appellants therein for training." 10. Thus, in my view, the order of termination, as contained in Annexure 15, is not vitiated on the ground that the petitioner was not afforded an opportunity of hearing prior to termination of his service, which was wholly illegal from its very inception. So far as the second submission is concerned, it is clear that the NABARD has sponsored the scheme and directed the Bank to implement the same, but the persons under the said Scheme were to be appointed by the Bank and only the cost had to be borne by the NABARD. In no way, the permission of the NABARD was necessary before passing the impugned order. 11. For the aforesaid reasons, there is no merit in this writ application and the same is dismissed.