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2005 DIGILAW 866 (PAT)

Lalit Prasad v. State Of Bihar

2005-09-21

RADHA MOHAN PRASAD

body2005
Judgment 1. In this writ petition, the petitioners are aggrieved by Order No. 82/2004, contained in Memo No. 847-54 dated 8.9.2004 (Annexure 1), issued by the District & Sessions Judge, Aurangabad (respondent no. 3), whereby and whereunder their services have been terminated from the post of Pool Car Drivers in Civil Court, Aurangabad. 2. According to the case of the petitioners, appointments of the petitioners were made after due advertisement and holding of driving test and interview in accordance with the provisions of the Bihar Civil Court Staff (Class III and Class IV) Rules, 2001, hereinafter referred to as the Rules. 3. It is stated that initially the petitioners were appointed on daily wages considering their necessity and later as per the direction of the Hon ble High Court given in December, 1998, the District & Sessions Judge, Aurangabad called upon the daily wagers and others to make applications to the posts of Driver. The petitioners possessed driving licences and experience and thus applied for appointment to the post of Pool Car Drivers, whereafter the decision was taken by the Appointment Committee on 5.1.1999 to appoint them on the said post initially on temporary basis and later after following the procedure of appointment etc. on regular basis. 4. A counter affidavit has been filed on behalf of the High Court (respondent no.2) in which, inter alia, it is stated that the appointments were made without prior approval of this Court. According, to the said respondent, certain irregularities were found and the High Court cancelled their appointment on that account. 5. A counter affidavit has also been filed on behalf of the District Judge and the Judge-in-Charge (Administration), Civil Court, Aurangabad (respondents no. 3 and 4, respectively) in which it is stated that the petitioners appointments were not made in accordance with the provisions of the Rules as amended till date. According to the said respondents, no advertisement was published in the local newspaper while there are two local newspapers. However, in this regard it is not disputed that the advertisement was published on the Notice Board by the District & Sessions Judge on 10.1.2002 and, accordingly, the petitioner applied and interview was done by the Appointment Committee and they also appeared in the driving test. However, in this regard it is not disputed that the advertisement was published on the Notice Board by the District & Sessions Judge on 10.1.2002 and, accordingly, the petitioner applied and interview was done by the Appointment Committee and they also appeared in the driving test. However, according to the District Judge, there was no expert to test the skill of driving and, further, no mark was fixed for qualifying the test or interview or preparing the merit list. According to the said respondents, no notice was required to be served on the petitioners prior to issuance of the notice terminating their appointment, contained in Annexure 1. 6. Learned counsel for the petitioners has contended that since the order of termination amounted to penalising the petitioners, they were at least entitled for a show cause notice before issuance of termination order in consonance with the principles of natural justice. Learned counsel for the petitioners has submitted that it is true that in view of the instructions of the High Court given in December, 1998 to fill up the vacancies, the District Judge considering the urgency in his wisdom made the appointment without consultation with the Hon ble Inspecting Judge before final selection, but the appointments were not made in irregular manner. Learned counsel for the petitioners has submitted that the said defect could have been cured by even taking a post facto approval, but on that account terminating the appointment of the petitioners has caused great hardship to them for no fault of theirs. 7. On the other hand, learned counsel appearing for the respondents has submitted that as per the rules for appointment, the advertisement of the vacancies is to be done in the same manner as in the case of Class III employees and in the case of Class ill employees the advertisement for filling up the vacancies is to be published in the local newspaper and if the vacancies are more than ten then it is to be advertised in a Hindi newspaper of wide circulation published from Patna. Learned counsel submitted that in both the cases the vacancies are to be notified in the employment Exchange as well as on the general Notice Board of the Sub-divisional headquarters and District headquarters, which were not followed. Learned counsel submitted that in both the cases the vacancies are to be notified in the employment Exchange as well as on the general Notice Board of the Sub-divisional headquarters and District headquarters, which were not followed. Learned counsel submitted that in any view of the matter, before final selec-!ion of the candidates, the consultation with the Hon ble Inspecting Judge was necessary in the light of the instruction of the High Court issued vide letter no. 10372-406 dated 6.6.1987, which was not done in the present case. As regards the notice, learned counsel submitted that the very appointment letter (Annexure 8) provided that the appointment was purely temporary and likely to be terminated any time without any notice. He submitted that the appointment letter further indicated that the appointment was subject to the approval by the High Court and the approval was not given and, as such, according to him, no notice was resquired. 8. Learned counsel for the petitioners, in reply, submitted that such condition itself was not permissible in view of the law settled in numerous decisions. However, he has not been able to show that neces-saiy consultation was made with the Hon ble Inpecting Judge before final selection was made. It may be true that the District Judge considering the urgency to comply the order of the Court made the appointment and it may also be true that post facto consultation could have been done but according to the instruction issued by the High Court, finai selection of the candidates were to be made only after consul-tation of the Hon ble Inspecting Judge. Moreover, in the present case, the Hon ble Inspecting Judge did not approve it and instruction was issued to the District Judge to cancel the appointment. 9. Under such circumstances, this Court does not find any merit in the writ petition and it is, accordingly, dismissed.