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2003 DIGILAW 931 (JHR)

Satya Narayan Pathak v. State Of Bihar

2003-08-01

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard the parties. 2. In this application the petitioner has made a prayer for issuance of a writ of mandamus commanding upon the respondents to pay the arrears of current salary with effect from April, 1998 together with interest. 3. According to the petitioner, he was appointed on 1.8.1990. The appointment letter which is at Annexure-1, was issued by the Principal, Netarhat Vidyalaya. It is an office order which says that the petitioner who was not employed in any Government service was being temporarily appointed in place of one Baleshwar Ram, who expired on the same day and who was working as a Chowkidar. The appointment was made in the scale of pay of Rs. 775-1025/- together with admissible allowances. The said appointment, as is apparent from Annexure-1, was ad hoc in nature. According to the petitioner, by letter dated 11.8.1997 as contained in Annexure-2, his services along with others were confirmed and thereafter by Annexure-3, i.e., a letter issued by the same Principal of the Netarhat School addressed to the Commissioner, Palamau Division at Daltonganj, a recommendation was made to adjust the petitioner on the post of a Daftari from the post of a Chowkidar, both being Class IV Posts. The petitioner has submitted that although he was working continuously, yet his salary was stopped from April 1998 till the filing of the Writ Application. After he had filed the Writ Application on 17.9.1999, the respondents passed an order on 8.3.2000 which is contained in Annexure-6 of the amendment application whereby and whereunder the petitioners services were terminated with effect from 9.3.2000. The learned counsel for the petitioner has submitted that till the order of termination. i.e., 8.3.2000 the petitioner has continuously rendered his services without any break and that the respondents have taken work from him. He has further submitted that the order of termination was passed in complete violation of the principles of natural justice inasmuch as neither any notice for hearing nor any notice to show cause was ever given to him prior to passing of the said order. He has further submitted that no sooner had the aforementioned order of termination been passed on 8.3.2000, he filed an amendment application before this Court wherein he made a prayer for quashing of the said order dated 8.3.2000. He has further submitted that no sooner had the aforementioned order of termination been passed on 8.3.2000, he filed an amendment application before this Court wherein he made a prayer for quashing of the said order dated 8.3.2000. It may be mentioned here at this stage that the aforementioned amendment application was allowed by a Bench of this Court as early as on 27.3.2000. 4. In the backdrop of the aforementioned events taking place, the petitioner has made a prayer, for arrears of salary together with interest and also for quashing of the order dated 8.3.2000 5. Mr. Pradip Modi on the other hand has submitted that the very appointment of the petitioner was itself irregular and his entry in the service was totally illegal and arbitrary inasmuch as his appointment was made without following any rules, regulations and without obtaining his name from the Employment Exchange and also without any advertisements, interview etc. He has further submitted that within three years from the date of such illegal appointment, the matter was raised in the Bihar Assembly by a Member of Legislative Assembly and the Education Department started making enquiries regarding this appointment. Consequently, by letter dated 25.2.1993 as contained in Annexure D appended to the aounter affidavit, the Principal sent his reply but the text of that reply has not been appended and as such this Court is unable to ascertain as to what were the contents thereof. 6. Mr. Pradip Modi, learned G.P. I has submitted that after about three months later. i.e., on 22.5.1993 the Executive Committee of the School held its meeting and the said committee clearly mentioned that the appointment of the petitioner was contrary to rules and therefore his services should be terminated. However, since the matter relating to the appointment of the petitioner was pending consideration before the Government, therefore, the Executive Committee decided to await the decision of the Government. The minutes of the aforementioned meeting has been brought on record by Annexure F appended to the counter affidavit. Mr. Pradip Modi, learned G.P, I has further drawn attention of this Court that the conduct of the, petitioner was also not above board. The minutes of the aforementioned meeting has been brought on record by Annexure F appended to the counter affidavit. Mr. Pradip Modi, learned G.P, I has further drawn attention of this Court that the conduct of the, petitioner was also not above board. In fact, on 23.8.1996 the Principal of the School had issued a letter to the petitioner informing him that there were reports that expensive, books and valuable texts had been missing from the School Library for which the concerned students had been punished but the very fact that books became missing from the Library was itself a pointer to show that there was gross negligence and therefore the petitioner was warned that in future if such negligence was repeated then stringent action would be taken. 7. In the meantime, the petitioner continued to work and since he was not getting salary from April 1998, he therefore filed a representation on 21.12.1998 vide Annexure-4. According to the petitioner, no sooner had the last representation been given by the petitioner demanding his legal dues that the respondents started acting in a hostile manner againsy him and by letter dated 21.12.1998 the Director Secondary Education, Government of Bihar sent a letter to the Treasury Officers informing them that salary should be paid only to people working against sanctioned posts. According to the learned counsel for the petitioner, this letter was deliberately written to frustrate the attempts of the petitioner to get his lawful and legal dues. Mr. A.K. Sahani submits that this letter was also forwarded to the Principal, Netarhat School and therefore the petitioner reasonably apprehends that this was the main reason why the petitioners salary was never paid and yet the respondents continued to take work from him. It appears that subsequently on or about 10.4.1999 the Principal of Netarhat, School once again wrote a letter to the Director (Administration) Secondary, Primary and Adult Education Department, Government ,of Bihar. Patna wherein while referring to the case of the petitioner, he sought guidelines. In the meantime, since nothing, was forthcoming in favour of the petitioner, he had no alternative but to file the instant Writ Application No. 17,94999 whereafter the Principal again wrote a letter on 6.10.1999 vide Annexure G appended to the counter affidavit, requesting the Government to issue necessary guidelines keeping in mind the fact that the petitioners appointment had not . been made against any sanctioned post and that his appointment had also not been made in terms of Rules and Regulations. It is thereafter that on ,8.3.2000 the services of the petitioner were terminated. 8. In the counter affidavit it has been stated at various places that the appointment of the petitioner was itself illegal and that in the appointment letter it had wrongly been mentioned that Baleshwar Mishra, who was a Chowkidar, had died and there fore, the petitioner was being appointed in his place. At paragraph 17 of the counter affidavit, it has been stated that in fact Baleshwar Mishra was a peon and not a Chowkidar and therefore, after his death, the vacancy was of a peon and not of a Chowkidar. 9. Mr. A.K. Sahani, learned counsel for the petitioner has submitted that whether the petitioners appointment was irregular or not, the fact remains that he continued to work continuously right from the date of appointment till the date of termination of his services, i.e., from 1.8.1990 to 8.3.2000. In other words, according to Mr. Sahani, the petitioner continued to work for almost ten years and therefore after so many years, his services cannot be terminated. 10. From a perusal of the different documents that have been brought on record both through the Writ Application as also through the counter affidavit, it is abundantly clear that the appointment of the petitioner was neither proper nor as per rules. His entry appears to have been made at the instance of the then Principal of the School without any advertisement, without the name having been called for from the Employment Exchange, without there being any advertisement or interview and so on and so forth. Apart from the aforesaid, the appointment Itself was absolutely ad hoc in nature and there is nothing on record to show that his appointment was extended from time to time as has been submitted by the learned counsel for the petitioner. In a judgment of the Division Bench in the case of Lalan Kumar Singh and Ors. Apart from the aforesaid, the appointment Itself was absolutely ad hoc in nature and there is nothing on record to show that his appointment was extended from time to time as has been submitted by the learned counsel for the petitioner. In a judgment of the Division Bench in the case of Lalan Kumar Singh and Ors. v. State of Bihar, reported in 19.95 (2) PLJR 309 it has inter alia been held that illegal appointees continuing for long periods of time cannot claim as a matter of right the privilege of judicial review under Article 226 and that the Court will not exercise its discretionary jurisdiction so as to allow such illegal appointees to continue in service in view of the fact that by adopting such illegal methods of appointments, other meritorious persons will be left in the lurch while these appointees will be inducted from the back door. From the editorial note of the said judgment it is apparent that the Honble Supreme Court of India had also approved the judgment and directed the State Government to initiate prosecution as well as disciplinary proceedings against the person who was responsible for such illegal appointments. In yet another judgment of the Division Bench passed in the case of Rajendra Prasad Singh and Ors. v. State of Bihar, reported in 1995 (2) PLJR 464 it has been held that a person who has been illegally appointed through the back door cannot be regularized because that would amount to a back door entry into Government Service. It is true that the petitioner has not made any prayer for regularization/but the fact remains that his appointment letter was itself ad hoc and temporary and there is no material to show that there was any extension of service. 11. In that view of the matter, this Court cannot pass an order directing the respondents to reinstate the petitioner in service because the service in which the petitioner was working was purely ad hoc and temporary in nature and the State respondents had never approved the appointment of the petitioner, although confirmation was made only at the level of the Principal but before that, by Annexure "F" i.e., on 22.5.1993, the Executive Body of the School refused to confirm the services of the petitioner and decided to await the decision of the Government. The decision of the Government has finally come, though belatedly, but the delay on the part of the Government should not mean that this Court would give its seal of approval to a back door appointee who was appointed on ad hoc and temporary status. 12. For the forgoing reasons, the prayer insofar as quashing of the order dated 8.7.2000 is concerned, cannot be granted. To that extent this Court finds that there is no illegality with the same and accordingly, the Writ Petition is dismissed insofar as prayer to quash the order of termination is concerned. However, taking tnto consideration the fact that the respondents took work from the petitioner right from the year 1990 till the date when his services were terminated, they cannot deny wages to the petitioner. It is the admitted case of the parties that salary of the petitioner was stopped with effect from April, 1998. Additionally while admitting this Writ Application, the respondents were directed by a Bench of this Court to continue to make payment of salary for the period he actually worked but Mr. Sahani has informed this Court that no such salary has been paid to the petitioner. That being the position, the respondents must immediately and forthwith calculate the dues of the petitioner and pay the same to the petitioner with interest at the rate of 6% per annum. 13. Taking into consideration the fact that the respondents allowed the petitioner to work for such a long period of time and also taking into consideration the fact that the petitioner rendered his services uninterruptedly, the respondents are therefore directed to immediately take all steps in accordance with law for purposes of filling up vacant posts in the School concerned and once such a step is initiated the petitioner will be given liberty to apply for one of those posts if he is eligible. If the petitioner applies, the respondents shall relax the age criteria and shall sympathetically consider his case. With the aforesaid observations this Writ Application is dismissed. No order as to costs.