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2004 DIGILAW 371 (JHR)

Bhola Mandal v. State Of Bihar

2004-04-07

M.Y.EQBAL

body2004
ORDER M.Y. Eqbal, J. 1. Heard the parties, 2. The petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the order dated 17th November, 1998 passed by the Director Secondary Education, Government of Bihar, Patna whereby the petitioner has been removed from service. 3. The petitioners case is that he was appointed on the post of Clerk in the office of District Education Office, Sahebganj. The said letter of appointment was issued by the Regional Deputy Director of Education, Ranchi. In 1990. the salary of the petitioner was stopped on the ground that appointment of the petitioner was itself illegal in as much as Regional . Deputy Director of Education was not appointing authority. In 1993 the petitioner was removed from the service. The petitioner then challenged the said order by filing C.W.J.C. No. 1229/94 in the Patna High Court. The writ petition was disposed of on 25.4.1995 by a Bench of the Patna High Court holding that the petitioner was not appointed by the Additional Director, Ranchi but by the order issued by the Education Secretary. The order of cancellation of the service of the petitioner was set aside and it was observed that the Education Secretary shall not be precluded from proceeding afresh and passing a fresh order canceling the appointment if the same appointment made without following the procedure prescribed under the law. The relevant portion of the order is quoted hereinbelow : "Accordingly the impugned order so far the same relates to the petitioner is quashed. I may. however, observe that this order will not preclude the Education Secretary from canceling appointment of the petitioner on the ground that the same was made without following the procedure prescribed under law, that is, without issuing advertisement in the newspaper." 4. It is only thereafter the Education Secretary proceeded with the matter and passed the impugned order holding that the petitioner was appointed without any advertisement and without following the procedure and the recruitment rules. Learned counsel appearing for the petitioner mainly contended that the petitioner appointed in 1987 and after having continuously worked for 11 years, his service could not have been cancelled. Learned counsel appearing for the petitioner mainly contended that the petitioner appointed in 1987 and after having continuously worked for 11 years, his service could not have been cancelled. Learned counsel relied upon two decision of the Patna High Court in the case of Abhay Kant Pandey v. State of Bihar, 2000 (2) PLJR 627, and Sitendra Kumar Singh v. State of Bihar, 2003 (4) PLJR 282 . 5. If an employee appointed by ignoring the procedure and continued in service for more than a decade service could not normally be terminated or cancelled. It is not a case that petitioner was appointed in 1987 and for the first time after 11 years the order of removal/cancellation was passed by the respondents. On the contrary it is a case where appointment of the petitioner in 1987 was doubted and therefore in 1990 his salary was stopped and thereafter in 1993 his appointment was cancelled. In 1995 although the writ petition aforesaid was allowed and the order of cancellation was quashed but the respondents-were given liberty to pass fresh order of cancellation if it is proved that appointment was made without any advertisement and without following the procedure of law. Admittedly no advertisement was made, ho applications were invited and no interview was conducted rather at the instance of the Director Secretary Education the petitioner was given appointment. In that view of the matter I am of the opinion that the decisions cited by the petitioners will be of no help to him. 6. Taking into consideration the entire facts of the case I do not find any strong reasons to interfere with the impugned order. This writ petition is dismissed. 7. Learned counsel appearing for the petitioner submitted that in the facts and circumstances, the case of the petitioners is fit to be considered in future appointment and after giving relaxation in age. The submission of the learned counsel appears to be fair and reasonable. It is therefore, observed that in the event any appointment is made in future the case of the petitioner shall also be considered along with others after giving relaxation in age.