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2000 DIGILAW 773 (PAT)

Suresh Ram v. State Of Bihar

2000-06-23

SHIVA KIRTI SINGH

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Judgment Shiva Kirti Singh, J. 1. This writ application under Articles 226 and 227 of the Constitution of India has been filed by twelve persons who were employees of the Darbhanga Regional Development Authority. The original prayer of the writ petitioners in this writ application filed on 20th February, 1995 was for regularisation of their services but subsequently the prayer was amended seeking quashing of order dated 21.12.1995 (annexure-6) by which their services were terminated. 2. On the basis of annexure-1 dated 14.10.92, the petitioners claim that the posts on which they were appointed had been duly created by the Darbhanga Regional Development Authority (hereinafter referred to as D.R.D.A.). A decision to appoint petitioners on ad hoc basis appears to have been taken on 14.10.92 itself, pursuant to which the petitioners were appointed on ad hoc basis vide various orders dated 30th December, 1992 contained in annexure-2 series. The resolution dated 14.10.92 was confirmed in the meeting of the committee dated 14.6.93 and this fact appears to have been communicated to the ad hoc appointees, the petitioners, as appears from annexure-4, an order dated 13.7.93 which is with regard to one of the petitioners. It appears that a grievance against the action of the D.R.D.A. in appointing the petitioners to various Class-Ill and Class-IV posts on ad hoc basis was raised before the Bihar Legislative Council and on the basis of Governments reply and assurance given in the Council a letter dated 3.1.95 was issued by the Secretary of the Urban Development Deptt. Government of Bihar addressed to the Divisional Commissioner, Darbhanga communicating the decision of the Government cancelling the appointment of all the twelve petitioners on the ground that they were illegal appointees. The impugned order contained in annexure-6 bears a reference to the said letter dated 3.1.95 which is part of annexure-A series to the counter affidavit of State and its officials and on that basis the petitioners services were terminated. 3. On behalf of petitioners it was strongly contended that in the matters of statutory authority like the D.R.D.A. the State Government cannot have any- power of interference in it as provided by the provisions of the Act, the Bihar Regional Development Authority Act, 1981 (hereinafter referred to as the Act). 3. On behalf of petitioners it was strongly contended that in the matters of statutory authority like the D.R.D.A. the State Government cannot have any- power of interference in it as provided by the provisions of the Act, the Bihar Regional Development Authority Act, 1981 (hereinafter referred to as the Act). According to the learned counsel for the petitioner section 65 of the Act which has been relied upon by the respondent State in its counter affidavit vests the State Government with the power to set aside any resolution or order of the authority or its officials only if resolution or order is in excess of the power conferred by law but in the present case the power of appointment under the rules vested with the D.R.D.A. and hence there was no power with the State Government to cancel the appointment of the petitioners. It was next contended that even if such power is presumed to be in favour of the State Government, since the decision of the State Government affects the right of the petitioners hence such decision could not have been taken without holding a proper enquiry and without affording an opportunity of hearing of the petitioners. Therefore, it has been submitted that the impugned order of termination is in violation of the Principles of Natural Justice. An attempt was made to allege mala fide against the concerned respondents but no specific/allegation has been made by name nor any concrete allegations in this regard have been levelled against any particular authority and hence the allegation of mala fide does not deserve any further consideration. 4. Learned counsel for the State as well as D.R.D.A. submitted that the State Government has the necessary power under section 65 of the Act if it is satisfied that any order or resolution of the authority under the Act is in excess of power conferred by law. Further submission was that the rules for appointment provide for advertisement in two newspapers and selection after holding written test. If the authority chooses to make appointments without following the procedure laid down under the law then the State Government will have the power to hold that the order or resolution of the authority or its officials is in excess of the power conferred by the law. 5. If the authority chooses to make appointments without following the procedure laid down under the law then the State Government will have the power to hold that the order or resolution of the authority or its officials is in excess of the power conferred by the law. 5. So far as the appointment of the petitioners is concerned, the resolution contained in annexure-1 which was confirmed by the resolution contained in annexure-3 clearly mentions that the appointment of the petitioners is on ad hoc basis till regular appointments will be made in accordance with law and this was done to meet the exigency of work and delay involved in regular appointment. According to the petitioners the procedure laid down in the rules is for regular appointment and shall not apply to appointments if made on ad hoc basis. 6. So far as the second contention of the petitioners based on the Principles of Natural Justice is concerned the respondents have not denied the allegation and thus it stands admitted that the State Government issued an order of termination of petitioners services without holding any enquiry and without affording any opportunity of hearing to the petitioners. The Darbhanga Regional Development Authority simply obeyed the order of the State Government and terminated the services of the petitioners vide impugned orders contained in annexure-6. No doubt the petitioners services was ad hoc appointment but nonetheless they have right to continue in the same status until their services could be terminated in accordance with law. It may be mentioned here that the petitioners have, through supplementary affidavits brought on record facts relating to similar appointments having been made by D.R.D.A. after issuance of annexure-6 and some of such later appointees have been regularised on the ground that they have completed more than 240 days of service. The desirability of such a practice is questionable but that does not lie in the scope of this writ application as those actions have been taken with regard to other set of employees but they do show that the D.R.D.A has been regularising the services of its ad hoc employees as per its own policy decision or that of the State Government. 7. 7. So far as power of the State Government under section 65 of the Act is concerned, there can be no doubt that in appropriate cases the State Government can set aside any order or resolution of the D.R.D.A. even in the matters of termination of employees of the authority if it is found that the D.R.D.A. or its officials have acted in excess of power conferred by law. The phrase "excess of power" may also cover cases where the order or resolution is clearly against the mandatory provisions of the Act or rules framed thereunder. However, it is a settled proposition of law that in exercising the power under section 65 of the Act, the State Government is bound to act in accordance with the Principles of Natural Justice before exercising its statutory power to set aside any resolution of the concerned authority. A notice has to be given to the persons who is prejudicially affected by the order which is ultimately made. In support of this proposition, reference may be made to a decision of this Court in the case of Surya Vijay Singh vs. State of Bihar (AIR 1970, Patna 213). 8. In view of admitted facts, in this case, it has to be held that the impugned order of termination of petitioners services contained in annexure-6 has been issued in violation of the principles of natural justice as no opportunity to show cause was given to the petitioners. In my view, this writ application has to succeed on this limited ground alone and hence it is not necessary or desirable in the facts of the case to decide the first contention finally. Accordingly, this writ application is allowed and the impugned order contained in annexure-6 is hereby quashed. As a result the petitioners shall be taken back in service and for any other purpose they shall be deemed to be in continuous service but they shall be entitled to salary only from the date they are taken back in service which" must be done within two weeks from the date of communication/production of a copy of this order. As a result the petitioners shall be taken back in service and for any other purpose they shall be deemed to be in continuous service but they shall be entitled to salary only from the date they are taken back in service which" must be done within two weeks from the date of communication/production of a copy of this order. It goes without saying that it shall be open for the concerned respondents, if they so choose, to pursue the matter against the petitioners in accordance with law only after giving them adequate opportunity of hearing but at the same time it shall be open to the petitioners to file representation before the D.R.D.A. and claim regularisation of service in accordance with law and the past practice. It is relevant to make it clear that the petitioners are agreed, not to claim salary for the period they have been out of service on account of annexure-6 and this court is also not inclined to grant that relief keeping in view the fact that their status till date of termination was that of ad hoc appointee and they have not worked during the period of termination. The writ application is allowed to the extent stated above. In the facts of the case, there shall be no order as to costs.