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2000 DIGILAW 1080 (PAT)

Rahul v. State Of Bihar

2000-09-06

NAGENDRA RAI, SHASHANK KR.SINGH

body2000
Judgment 1. This appeal is directed against the order dated 17.11.1999, passed by a learned Single Judge in C.W.J.C. No. 1236 of 1998, by which the writ application filed by the appellant challenging the notification dated 10.1.1998, issued under the order of the Governor of Bihar, terminating the services of the appellant as an Assistant Engineer, State Institute of Educational Technology (SIET), Bihar, Patna has been dismissed. 2. The facts, which are not in dispute, are as follows: The aforesaid SIET was established in the year 1985 by the Government of India as an agency for utilising the INSAT 1B for educational purposes and qualitative development in education under the direct control of the State Government. Later on in 1991, the State Government took a decision to make the said SIET as an autonomous body and on 14.1.1994 the same has been made an autonomous body. 3. The appellant filed an application in 1988 before the Director, SCERT & SIET, Education Department, Government of Bihar, for his appointment as an Assistant Television Engineer vide Annexure 1 to the writ application, wherein he stated that he is an Engineering Graduate with first class degree from B.I.T., Mesra, Ranchi, and has knowledge of electronic hardware. Thereafter, he was engaged on a purely provisional basis on 20.2.1988 (Annexure 2 to the writ petition). The said order of engagement was modified by order dated 21.3.1988 and the period of his provisional appointment was confined to a period of six months only (Annexure 3 to the writ petition). On 2.4.1987, the State Government in exercise of the power under Article 309 of the Constitution of India framed a rule with regard to appointment etc. of the employees of the SIET and a copy of the same has been annexed as Annexure C to the counteraffidavit. 4. According to the said rule, the post of Assistant Engineer (TV.), on which post the appellant was appointed provisionally, is a Gazetted post and the pay scale of the said post, at the relevant time, was Rs. 1350/- 2000/. The requisite qualification for the said post is degree in Electrical Engineering/Electronics/Electrical Communication Engineering or M.Sc. Degree in Physics with Wireless communication or Electronics as a special subject from the recognised University or equivalent and two years experience in operation and manufacture of T.V. etc. in a responsible capacity. 5. 1350/- 2000/. The requisite qualification for the said post is degree in Electrical Engineering/Electronics/Electrical Communication Engineering or M.Sc. Degree in Physics with Wireless communication or Electronics as a special subject from the recognised University or equivalent and two years experience in operation and manufacture of T.V. etc. in a responsible capacity. 5. After expiry of the aforesaid period of six months, again the appellant was appointed on ad hoc basis till further order or till the concurrence of the Bihar Public Service Commission by order dated 22.8.1988 (Annexure 5 to the writ petition) though he did not possess the requisite qualification as, admittedly, he has a degree in Mechanical Engineering and not in any of the subjects, which, according to the rules, are the requisite qualifications for appointment on the said post. 6. The respondents having noticed that the appointment of the appellant was illegal, terminated the same by order dated 22.11.1990 (Annexure 7 to the writ petition). The appellant challenged the aforesaid order before this court in C.W.J.C. No. 1317 of 1991 and the same was quashed by order dated 13.5.1991 (Annexure 8 to the writ petition) on the ground that the said order of termination was passed without any show-cause. Thereafter, the respondent- authorities issued a show-cause notice to the appellant and again passed an order of termination of his service, which was challenged by the appellant in C.W.J.C. No. 1346 of 1993 and a learned Single Judge of this court by order dated 7.4.1994 (Annexure 9 to the writ petition) allowed the same on the ground of vagueness. Thereafter, again a fresh show-cause notice was issued on 29.4.1997 as to why the appointment of the appellant would not be cancelled, it was specifically stated in the show-cause notice that the post held by the appellant was a Class-I post and without any ad- vertisement as prescribed in the rules and without any recommendation of the Bihar Public Service Commission, he had been appointed. It was also stated that he did not possess the requisite qualifications and his appointment was also not made by a competent authority. The appellant challenged the aforesaid show-cause notice in C.W.J.C. No. 5230 of 1997 and the said writ application was disposed of on 27.8.1997. It was also stated that he did not possess the requisite qualifications and his appointment was also not made by a competent authority. The appellant challenged the aforesaid show-cause notice in C.W.J.C. No. 5230 of 1997 and the said writ application was disposed of on 27.8.1997. This court did not interfere with the issuance of show-cause notice but the respondents authorities were directed to consider the same, hear the appellant in person and pass a speaking order within a period of two months from the date of receipt of the show-cause vide Annexure 19 to the writ petition. Thereafter, the appellant challenged the aforesaid order in L.P.A. No. 1099 of 1997 and the same was disposed of on 19.9.1997 and the L.P.A. was dismissed with observation that if the reply to the show-cause notice has been filed by the appellant, Respondent department shall proceed to consider the reply submitted by the appellant in accordance with the service rules expeditiously. Thereafter, the show-cause filed by the appellant was considered and the impugned order of termination of his service has been passed, against which the appellant filed C.W.J.C. No. 1236 of 1998, which has been dismissed by the impugned order and hence this appeal. 7. Learned counsel for the appellant submitted that though the appellant did not possess the requisite qualification but as the rule, framed in 1987, provided for relaxation in the requisite qualifications by the State Government, it will be deemed that the State Government relaxed the qualification while making appointment of the appellant. He further submitted that after filing of the show-cause, he requested the authorities to supply him certain documents, which were not supplied as a result of which he has been prejudiced and on this ground alone, the order of termination is vitiated in law. He also submitted that the appellant has remained in service for about 14 years and as such his service should be regularised as it was done in the case of one Kalyan Prasad. He lastly submitted that the order of termination was passed by the State Government which is not a competent authority after the SIET became autonomous body in 1994. 8. In our view, none of the submissions raised on behalf of the appellant is worth acceptance. The admitted fact is that the appellant who is a degree holder in Mechanical Engineer, did not possess the requisite qualification for the post. 8. In our view, none of the submissions raised on behalf of the appellant is worth acceptance. The admitted fact is that the appellant who is a degree holder in Mechanical Engineer, did not possess the requisite qualification for the post. No doubt, the Government has power to relax the qualification at the time of making appointment, but the respondents in the counter-affidavit have specifically stated that the same was never relaxed, on the other hand, the appellant was engaged through a back-door entry without possessing the requisite qualifications. It is an admitted position that the post has to be filled up by advertisement through the Bihar Public Service Commission. It is also an admitted position that the qualification for the said post was not possessed by the appellant as he is a degree holder in Mechanical Engineering, which is not a qualification for the said post. No doubt, the State Government has power to relax the qualification but there is no order or any material on the record to show that the said qualification was relaxed in the case of the appellant, on the other hand, the specific averment in the counter-affidavit is that the appellant was engaged through a back-door entry without possessing the requisite qualification. 9. Thus, there is no force in the submission raised on behalf of the appellant that the relaxation was made with regard to the qualification of the appellant. This apart, the appointment of the appellant on the face of it is void ab initio as neither the procedure for appointment was followed nor did the appellant possess the requisite qualification. The appointment letter annexed with the writ application itself shows that the appointment of the appellant was purely provisional for a cer-tain period. 10. So far as the grievance of the appellant that he was not supplied the relevant documents while hearing the matter is concerned, it appears from the averment made in paragraph no. 46 of the writ application that he required the original files with regard to his appoint pellantment and appointments of other employees. None of the said documents at all was relevant with regard to the grounds stated in the show-cause notice for cancellation of the appointment of the appellant. 46 of the writ application that he required the original files with regard to his appoint pellantment and appointments of other employees. None of the said documents at all was relevant with regard to the grounds stated in the show-cause notice for cancellation of the appointment of the appellant. Even in this court, learned counsel for the appellant has not been able to show that these documents have any relevancy to decide as to whether the appointment of the appellant was according to law or not. 11. The law on this point is well-settled. Non-supply of document by itself does not vitiate the proceeding. It has to be first determined as to whether the documents required by the delinquent employee are relevant or not and secondly even if they are relevant whether non-supply thereof has prejudiced him or not. It is the duty of the person affected to show as to how the document is relevant in the enquiry being held against him and how the non-supply thereof has caused prejudice to his case. Once these things are pointed out by the affected person then the court has to give a finding as to whether the relevant documents were supplied or not and whether non-supply thereof has prejudiced the case. Reference in this connection may be made to the cases of State Bank of Patiala V/s. S. K. Sharma, reported in (1996) 3 S.C.C 364 and the State of Tamil Nadu V/s. Thiru K. V. Perumal & ors., reported in A.I.R. 1996 S.C. 2474. 12. In our view, none of the documents required by the appellant was relevant to decide the controversy and their non-supply has not caused prejudice to the appellant. 13. So far as the claim of the appellant that he has remained in sen/ice for 14 years and as such his service has to be regularised is concerned, it is suffice to say that his service was terminated in 1990 within three years immediately when the authorities came to know of the illegality having been committed in his appointment. He filed writ application several times before this court challenging the order of cancellation of his appointment and so also against the show-cause notice issued to him and in pursuance of the order/direction issued by this court, the impugned order has been passed. He filed writ application several times before this court challenging the order of cancellation of his appointment and so also against the show-cause notice issued to him and in pursuance of the order/direction issued by this court, the impugned order has been passed. He has remained in service because of some interim order passed by this court but as his initial appointment is itself void ab initio and illegal, this court in a case like this will not direct for regularisation of service as that will amount to allowing the illegality to be perpetrated, which will affect the cause of justice. This court is n aware under what circumstances the service of said Kalyan Prasad was regularised, even though he did not posess the requisite qualification. If the se vice of an employee has been regularise in an illegal manner then that will not be ground to issue a direction to the respodents-authorities to commit the same legality in the case of other employee [See Kameshwar Prasad V/s. State of Bihar, reported in 2000(3) P.L.J.R. 81]. 3 14. The SIET was under the State Government and in 1994, it was made an autonomous body. There was a provision for the employees to exercise option to remain as employees of the SIET. According to the own statement of the appellant in paragraph no. 23 of the writ petition, he has not exercised his option as he demanded certain papers and as such on the date when the order of termination was passed, he remained the employee of the State Government and was not an employee of the SIET and as such the State Government was competent to pass an order of termination of service of the appellant. 15. Thus, none of the submissions advanced on behalf of the appellant has any force. Accordingly, we find no merit in this appeal and it is, thus, dismissed.