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2001 DIGILAW 13 (PAT)

State of Bihar v. Sushil Kumar Mishra

2001-01-04

RAVI S.DHAVAN, SHASHANK KUMAR SINGH

body2001
JUDGMENT RAVI S. DHAVAN, CJ. In the two sets of appeals before the Court, the issue is the irregularity and illegality of appointments to State Service, public appointments, as Assistant teachers in the department of Primary Education. There is a lot of litigations between the Primary teachers and the State of Bihar. Several petitions were filed at the High Court and consequently many Special Leave Petitions before the Supreme Court. All are agreed at the Bar that there were irregularity in appointments and the procedure adopted in making appointments. It would be sufficient to bear in mind the order of the Supreme Court, which in effect, directed the State of Bihar to conduct an inquiry and if there was any deficiency in procedure in the manner in which the appointments were made, should the candidate be otherwise eligible, then they could be considered for holding the appointment. Certain statistics are relevant. 2. It is on record that 2329 matters were under inquiry. Opportunities were given to the incumbents to participate in the inquiry. 2321 participated in the process of inquiry and when given an opportunity on being invited for interview, 254 did not present themselves and did not participated in the inquiry. After the matter had been inquired into by the State of Bihar, only 81 persons were found to be eligible for appointments. In short, this matter can be called a "Naukri Scam". 3. Apparently, the appellants rave torn out the context and the meaning of the two judgments of the Supreme Court available on the record, but not co-relating with the records of the cases. If there was any defect in the procedure of appointment then the only latitude which was permitted by the Supreme Court was that the procedure may now be adhered to and as on the date when the person had applied, if he was otherwise qualified, he may be considered for appointment. It is clearly understood from the two orders of the Supreme Court dated 7.2.1991 and 30.11.1992 passed in Special Leave Petition No. 11699 of 1990 and Special Leave Petition no. 10051 of 1990, respectively, that if the incumbents on the date they had applied and were given appointments were not qualified, this illegality , could not be cured. 4. It is clearly understood from the two orders of the Supreme Court dated 7.2.1991 and 30.11.1992 passed in Special Leave Petition No. 11699 of 1990 and Special Leave Petition no. 10051 of 1990, respectively, that if the incumbents on the date they had applied and were given appointments were not qualified, this illegality , could not be cured. 4. The present set of cases as are before the Court in Letters Patent Appeal No. 85 of 1997 filed by the State of Bihar and others Vs. Shushil Mishra and others and the Letters Patent Appeal No. 422 of 1996: Dinanath Jha and ors. Vs. The State of Bihar & ors belong to a very different category on merits. Lack of procedure is not in issue. The basic qualification was not possessed by the candidates. In the appeal which has been presented by the State of Bihar, the issue is on candidates who were underage. They were not even 18 when they had applied and received the appointments. It is on record that no record, with regard to their appointments was available in the office of the concerned District Superintendents of Education. How the incumbents were given their appointments is not known except that the appointment letter was issued. That the records should disappear is not an irregularity. It is a scandle. The other case, Letters Patent Appeal No. 422 of 1996 is a matter of those candidates who were overage. Being overage or underage does not permit receiving a public or a State appointment. This is not an irregularity which could be cured. The persons were simply not qualified even to apply. 5. The history of the litigation has been given in the counter affidavit filed by the State of Bihar in C.W.J.C. No. 3832 of 1995: Sushil Kumar Mishra Vs. The State of Bihar & ors out of which Letters Patent Appeal No. 85 of 1997 arises. The Court is not reproducing the details of the writ petitions which were filed at the High Court as also the details of the litigation which were filed at the Supreme Court. The counter affidavit of the State of Bihar makes these facts of record available. The details and the orders of the Supreme Court are appended to counter affidavit. 6. The counter affidavit of the State of Bihar makes these facts of record available. The details and the orders of the Supreme Court are appended to counter affidavit. 6. The occasion for the State of Bihar to file a Letters Patent Appeal arose as they were faced with an order on the writ petition, to the effect, that the order of termination which had been passed after an inquiry stood quashed and the State of Bihar faced an order for reinstatement of the petitioners on the post of Assistant teachers to elementary schools in the district of Deoghar and Godda. There was an observation' by the learned Judge on the writ petition, to the effect, that while their appointments be retained they be allowed to continue in service and the period during which they had continued in service of the State as a minor may be deleted or deducted from the total period of their service. 7. Plainly, whoever was responsible for it, whether the petitioners who sought the appointments or the officials who gave it, they were in collusion to offer a state appointment to a person who otherwise could not hold it by law this is a fraud. The principles as are given in Section 44 of the Evidence Act, 1872, in effect, apply. The State of Bihar would be entitled to avoid this judgment. Equity does not lie with the petitioner respondents to hold on to a job which they had extracted out of the State of Bihar by collusion or deceit or fraud whatever it might be. The court cannot overlook the reality of the situation in the State that there is rampant unemployment and there is a public accountability to answer that norms of making appointments are not abdicated. It is the obligation of the State to be strict and not to permit such appointments by suppressing the age of persons who seek appointments/ illegal appointments. Underage or overage is ineligibility and a disqualification. A state employment is not meant for such persons but for those who are qualified to hold an appointment. Otherwise, the State would face allegations on illegal appointments. 8. Underage or overage is ineligibility and a disqualification. A state employment is not meant for such persons but for those who are qualified to hold an appointment. Otherwise, the State would face allegations on illegal appointments. 8. In the circumstances, this Court is of the opinion that order of the learned Judge on the writ petition ignoring the fact that appointments had been procured and the incumbents who were given appointments could not hold it for lack of qualification is a defect which cannot be cured in posterity. These appointments must be set aside no matter however hard the decision may be. The decision is against both equity and law. And this Court cannot permit such circumstances to become binding precedents as the Patna High Court is already faced with dockets examining scams on appointments. The Court must guide itself in consistency in matters relating to public appointments. 9. In the other Letters Patent Appeal, the context of the issue is not different. So this appeal relating to those who were overage to receive appointments stands dismissed. 10. The appeal of the State of Bihar, i.e. Letters Patent Appeal No. 85 of 1997 is allowed. The appeal filed by Dinanath Jha and others, i.e. Letters Patent Appeal No. 422 of 1996 is dismissed. 11. No order on costs.