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2003 DIGILAW 956 (PAT)

Ramesh Chandra Mishra v. State Of Bihar

2003-09-03

R.S.GARG

body2003
Judgment R.S.Garg, J. 1. Heard learned counsel for the parties. 2. The petitioner, a Constable was removed from the serious by the Superintendent of Police, Saran, Chhapra under Order No. 43 of the 2003 observing that the very appointment of the petitioner was illegal and he could not be continued in the services. Challenging the said order the petitioner came to this Court in C.W. J.C. No. 1422 of 2003 but, however, withdrew the writ application with the liberty to prefer an appeal. He preferred an appeal which has been dismissed by the Deputy Inspector General of Police, Saran Range, Chhapra on 3-6-2003. Being aggrieved by the said order, the petitioner has come to this Court inter alia submitting that the petitioner was appointed in the year 1988 on a temporary post by the Superintendent of Police, who was competent to issue temporary appointment under paragraph 667 of the Police Manual and as the petitioner was not at fault or did not commit any lapse and as no action has been taken against the then Director General of Police or the then Superintendent of Police, who had made the recommendations or issued the appointments orders, the petitioner could not be removed from the services. 3. After hearing the parties, certain facts which are undisputed are required to be mentioned. It is undisputed that the Assistant of the Director General of Police vide his letter dated 8-9-1988 made a recommendation in favour of the petitioner to the Superintendent of Police, Saran that the Director General of Police has required the said Superintendent of Police to issue an order of appointment in favour of the petitioner on compassionate ground. From Annexures-4 and 5 it would clearly appear that not only the Assistant of the Director General of Police but the Deputy Inspector General of Police also made recommendations to the Superintendent of Police, Saran. Thereafter, the Superintendent of Police, Saran, Chhapra vide his order dated 1-8-1989 contained in Annexure-6 directed appointment of the petitioner on temporary post clearly stating that the order be issued in view of the directions issued by the Director General of Police to give compassionate appointment. Thereafter, the Superintendent of Police, Saran, Chhapra vide his order dated 1-8-1989 contained in Annexure-6 directed appointment of the petitioner on temporary post clearly stating that the order be issued in view of the directions issued by the Director General of Police to give compassionate appointment. Undisputedly the petitioner did not undergo or take any examinations but has been appointed on the basis of the recommendations made by the Director General of Police, that too on the ground that father of the petitioner was keeping ill-health and he was proposing his voluntary retirement and being influenced by these facts or whatever else, the Director General of Police directed the Superintendent of Police, Saran, Chhapra to issue appointment orders. It is contended that the petitioner was not appointed on the strength of the recommendations made by the Director General of Police nor he was on compassionate appointment but in fact in accordance with paragraph 667 of the Police Manual, the petitioner was given temporary appointment. 4. The argument is misconceived. It ignores the first part of Annexure-6 and tries to read the latter part of Annexure-6 only. The earlier part of Annexure-6 clearly shows that in accordance with the directions issued by the Director General of Police to make compassionate appointment of the son of Dudha Nath Mishra, the present petitioner Ramesh Chandra Mishra was being given temporary appointment. The temporary appointment is to be made under paragraph 667 of the Police Mannual on a temporary post for temporary work. In the present matter, the order of appointment does not say that the appointment was temporary for temporary work on a temporary post. 5. It was next contended that the Superintendent of Police in accordance with Appendix 41 of the Police Manual was the competent authority to issue orders of appointment and as he himself issued the orders, the orders were not bad. A fair perusal of the Rules and the Appendix 41 would make it clear that a temporary appointment can be made for temporary purpose and a permanent appointment is to be made by the Superintendent of Police of the particular area in favour of those persons, who have passed the examinations and who have shown their merits and metal. In the present matter undisputedly by seeking protection under the recommendations made by the Director General of Police, the petitioner could secure the appointment. 6. In the present matter undisputedly by seeking protection under the recommendations made by the Director General of Police, the petitioner could secure the appointment. 6. Placing reliance upon the case reported in 2000(3) PLJR 77 (The Bihar State Co-operative Land Development Bank Ltd. and Anr. V/s. Anil Kumar Singh and Anr.) and 2003(2) PLJR 629 (The State of Bihar and Ors. V/s. Jagarnath Singh) it was next contended by the learned counsel for the petitioner that if there was some irregularities in the appointment of a person then after long many years when the person has settled in the life, the appointment should not be disturbed. 7. The argument unfortunately is in oblivion of certain facts. In the said matters the temporary appointments were made but the same were irregular. In the present matter, a compassionate appointment was ordered to be given to the petitioner because the father of the petitioner was seeking voluntary retirement. A compassionate appointment can be given to a person whose parents, father/mother die in harness while they are in active service. In the present matter undisputedly on the date of the petitioners appointment, the father was surviving and he did not die in active service in harness. So far as the criticism of the appellate order is concerned, learned counsel for the petitioner is placing reliance upon the single Judge judgment of this Court which was relating to Mr. Saxenas directions for appointment. In the opinion of this Court, that should not detain this Court unnecessarily because a Division Bench of this Court while approving the Single Bench orders has already held that if the appointments are made on the recommendations made by the Director General of Police then such appointments are illegal because the Director General of Police cannot make any recommendations nor is the appointing authority. 8. It appears that the free-will of the Superintendent of Police, Saran, Chhapra was influenced by the documents contained in Annexures-4 and 5 wherein the Assistant of the Director General of Police and the Deputy Inspector General were requiring him to issue the appointment orders. This Court would be justified in observing that the Director General of Police through his Assistant and Director General of Police virtually coerced and pressurised the Superintendent of Police to appoint the petitioner. 9. This Court would be justified in observing that the Director General of Police through his Assistant and Director General of Police virtually coerced and pressurised the Superintendent of Police to appoint the petitioner. 9. The petitioners appointment was not after following any process known to the law: In the opinion of this Court, the appointment of the petitioner is patently illegal and was void ab initio. The petition deserves to and is accordingly dismissed.