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2004 DIGILAW 152 (PAT)

Sanjit Kumar @ Sarjeet Kumar v. State Of Bihar

2004-02-05

RAVI S.DHAVAN, SHASHANK KR.SINGH

body2004
Judgment 1. The delay in filing the appeal is condoned. 2. This appeal has been filed against the order dated 25.11.2003 on C.W.J.C. No. 7758 of 2001 (Sanjit Kumar vs. The State of Bihar & Ors.) 3. The admitted facts on which there is no issue is that the petitioner had been appointed on the post of Technician initially temporarily for six months by letter no. 932 dated 9.10.1990 by the Project Officer of the Frozen Cemen Bank, Purnea. After one year the services of the petitioner were regularized by the Regional Director, Animal Husbandry Department, Purnea by a memo no. 11 (Go) dated 15.11.91. These facts have been taken from paragraph-4 of the counter affidavit. It is stated that neither the Project Officer nor the Regional Director were conferred power to make appointments to State Cadre post. The counter affidavit further states that: "Thus Project Officer and Regional Director were not the competent authority to make such appointment on cadre posts. The only competent authority for making such appointment on State cadre posts is the Director, Animal Husbandry Department on the recommendation of Awar Seva Chayan Parishad/Bihar Public Service Commission except appointment on compassionate ground. Thus, it is easy to come to the conclusion that both the officers were not competent to make an appointment on such state cadre posts. Moreover, the appointment was made without following the procedure of appointment and recruitment rules. Provisions made under Article 16 of the Constitution of India has also been violated. Thus, evidently, the appointment of the petitioner was made illegally and so the services of the petitioner were rightly terminated vide letter no.405 dated 1.8.2001 after obtaining unsatisfactory reply against show cause notice served vide memo no. 283 dated 29.5.2001 of Regional Director, Animal Husbandry Department, Purnea. The petitioner is entitled for due salary from 1.6.1997 to 31.7.2001 if he has actually worked. This paragraph has been sworn by a Deputy Secretary, Animal Husbandry Department, Bihar who answers on behalf of the State respondents, as true to my knowledge. 4. The submissions are conclusions drawn by the person who has sworn the affidavit on behalf of the State. The submissions are a bundle of contradictions. This paragraph has been sworn by a Deputy Secretary, Animal Husbandry Department, Bihar who answers on behalf of the State respondents, as true to my knowledge. 4. The submissions are conclusions drawn by the person who has sworn the affidavit on behalf of the State. The submissions are a bundle of contradictions. Contrary to what has been contended that "thus it is easy to come to conclusion that both the officers were not competent at all to make appointment on such state cadre post." Nothing has been demonstrated to show that the Regional Director was incompetent to make an appointment. A gazette notification dated 17 February, 1960 is relied upon. The question does arise how was the appointment made and suffered for ten years. The appointment was made in 1991 and another show cause notice was served on 29.5.2001. A show cause notice is only served on that government servant who is in service, rightly or wrongly is another matter. 5. If all of a sudden someone within this department came to the conclusion that this appointment was made wrongly then the basic question, which has to be answered, is who exactly made this illegal appointment. While the petitioner appellant may loose his service by dismissal or termination, those who cause this illegality must suffer the same action against them also. Thus, if the petitioner- appellants appointment is to be determined on the ground that it was illegal for those who made them, the Project Officer and the Regional Director must meet the same fate of dismissal along with the petitioner- appellant. It this is the state of affairs of making appointments in Bihar and terminating them, then both are matters of responsibility. To make an appointment is an action of the responsibility. While the person who got an illegal appointment, he may see termination of his post, the persons who gave the appointment likewise must also go out of service. 6. With the aforesaid observation, the record is consigned.