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2005 DIGILAW 729 (PAT)

Sushil Kumar Yadav v. State of Bihar

2005-08-16

body2005
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner was appointed on the post of constable in Police Force of Darbhanga district vide order dated 12.2.1993 contained in Annexure - 1. That order discloses that on the basis of a recommendation from the Secretariat of Chief Minister. Bihar dated 20th July, 1992 and a reminder dated 5.9.1992, the petitioner was appointed by the then S.P. Darbhanga temporarily on the post of Constable. Now he has removed from that post by the impugned order contained in Annexure - 2 dated 24.1.2003 on the ground that as per provisions in Rule 661 of the Bihar Police Manual a Selection Committee is required to be constituted for selecting candidates who may apply for the post of Constable. Such selection is required to be made on the basis of physical measurements and educational qualification which are tested. The appointment is required to be made only on the basis of recommendation of the Selection Committee of successful candidates. None of these procedures were gone through in making appointment of the petitioner. 3. On behalf of the petitioner it has been submitted that a recommendation was made in favour of the petitioner from the Secretariat of the then Chief Minister because petitioner's father became victim of an offence under Section 302 of the IPC during election time. Such appointment according to learned counsel for the petitioner was in accordance with, a police decision of the Government as would appear from the circular of the Chief Secretary dated 12.1.2001 contained in Annexure - 5 to the supplementary affidavit. Special reliance was placed upon Clause - 5 (Gha) of the said circular which contains a provision to enable the Government to offer the compensation of one lakh and also a service in fourth grade in serious cases of massacre involving group murders. 4. On facts it is clear that petitioner's family was not the victim of any group murder and hence that Clause is not applicable in his case. In law it is difficult to accept that an administrative circular issued on 12th January, 2001 shall operate retrospectively to confer legitimacy to an appointment made in the year 1993. 5. 4. On facts it is clear that petitioner's family was not the victim of any group murder and hence that Clause is not applicable in his case. In law it is difficult to accept that an administrative circular issued on 12th January, 2001 shall operate retrospectively to confer legitimacy to an appointment made in the year 1993. 5. Learned counsel for the petitioner has mainly relied upon a judgment reported in 1994(2) BLJ 499 in which it was held that although the initial appointment was wrong but since it was not obtained by any fraud or misrepresentation, therefore the validity of appointment could not be gone into after 12 years. A wrong appointment, nodoubt may not require scrutiny after long years but an appointment which is void ab initio on account of being in teeth of Articles 14 and 16 of the Constitution of India cannot be treated simply as wrong appointment. In such a case the beneficiary need not play any fraud or suppression of fact even then such appointment, in the words used by the Supreme Court is a "stillborn" child which cannot be given life. Hence this Court finds no merit in the submission advanced on behalf of the - petitioner that due to lapse of about ten years petitioner's appointment could not be treated as invalid. As a fact his appointment was always invalid and it has rightly been recognised so. So far as circular contained in Annexure - 5 is concerned, this Court had the occasion to examine such circular in another case and it was found that the reference to Class - IV post in that circular may be relevant for appointment in other departments of the State Government but for appointment to Bihar Police service as a Constable, Rule 661 of the Bihar Police Manual cannot be deemed to have been relaxed indirectly. In that view of the matter, following the judgment of this Court in the case of lallan Kumar Vs. The State of Bihar & Ors. delivered on 13.7.2005 it is reiterated that even on the ground of compensation under policy decision of the Government petitioner could have been offered only a Class - IV post in other departments and not a post of Constable in Police Department. In appropriate case, this Court may order for initiating a proceeding against officers who make such invalid or illegal appointments. In appropriate case, this Court may order for initiating a proceeding against officers who make such invalid or illegal appointments. However, in this case it is found that the illegality originated from the Secretariat of the Chief Minister, a post which gets vacated on expiry of fixed period of time on account of result of political considerations reflected through elections. 6. Hence, it is not deemed proper to order for any enquiry in the present case. The writ petition is dismissed.