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2006 DIGILAW 1039 (JHR)

Bikramendra Kumar Magan v. State Of Bihar Through Secretary, Department Of Animal Husbandry And Fisheries

2006-08-09

AMARESHWAR SAHAY

body2006
JUDGMENT Amareshwar Sahay, J. 1. The prayer of the petitioners in this writ application is to quash Annexure-8 dated 23/10/1998, issued under the signature of the Deputy Secretary to the Government of Bihar, Department of Animal Husbandry and Fisheries, whereby the Director, Animal Husbandry, Bihar, Patna, was informed that the matter regarding appointment and promotion of Technical Assistants of South Chhotanagpur and Santhal Parganas Division was thoroughly enquired into and after an enquiry it was found that the appointments and promotions of all the Technical Assistants were illegal because of the 10 reasons mentioned in the said letter and, thereby, the Government took the decisions that: Notice to show cause may be asked from those Technical Assistants, who were still working, and were appointed directly, to show cause as to why their services be not terminated and. thereafter, their services may be terminated. They may however, be given liberty to make fresh application when regular appointments are made for the said post and their applications shall not be rejected on the ground of over age. It was further decided that those persons, who were promoted to the post of Technical Assistants from Grade-IV, their promotion be also cancelled after issuing show cause notice to them and, thereafter, they be reverted back to the category of Class-IV. 2. The petitioners were appointed on purely temporary basis as Technical Assistants vide Annexure-1 series by issue of the order of Regional Joint Director, Animal Husbandry, South Chhotanagpur Division, Ranchi. On the basis of the appointment letters, issued to them they were working in the said capacity at different places. In the appointment letters it was specifically mentioned that their services were liable to be cancelled without any prior notice. According to the petitioners, the services of all of them were extended from time to time and ultimately, by issue of Annexure-4 dated 04/05/1995 an order was passed that till the Directorate of Animal Husbandry, Government of Bihar, Patna, does not take any decision, their services were extended until further orders. 3. The grievance of the petitioners is that, ultimately by issue of Annexure-8, all of them were disengaged and their appointment were cancelled on the ground that the same was held to be illegal after due enquiry. 4. 3. The grievance of the petitioners is that, ultimately by issue of Annexure-8, all of them were disengaged and their appointment were cancelled on the ground that the same was held to be illegal after due enquiry. 4. By filing supplementary affidavit the petitioners have stated that during the pendency of the present writ application similarly situated persons moved before this Court by filing C.W.J.C. No. 3509/1998 (R), which was dismissed on 18/07/2001 and even the L.P.A. was also dismissed by a Division Bench of this Court. Against the said orders, those aggrieved persons moved the Supreme Court in Civil Appeal No. 5343/2003, in which the Supreme Court made observations and directions to the State of Jharkhand to consider to fill-up the existing vacancies within a period of three months by constituting a Selection Committee and the appellant before the Supreme Court, whose services were terminated, were given liberty to apply against the said vacancies and they were also directed to give weightage of their experience by giving relaxation of age. A photocopy of the order of the Supreme Court has been annexed as Annexure-10 to the supplementary affidavit. 5. On the other hand, by filing counter affidavit, the stands of the petitioners were controverted and it was stated that the petitioners were appointed unauthorizedly on the post of Technical Assistants, which was a State cadre post of Class-III category and the power to appoint on the said post was exclusively with the Director, Animal Husbandry only and, therefore, the appointment of the petitioners made by the Regional Director or any other Joint Directors, was absolutely illegal and without jurisdiction. It was further stated in the counter affidavit that by issue of letter No. 262 dated 21/02/1992, the appointment of Class-III and Class-IV posts were completely banned. It was further stated in the counter affidavit that by issue of letter No. 262 dated 21/02/1992, the appointment of Class-III and Class-IV posts were completely banned. Accordingly, after thorough enquiry, by issue of Annexure-8 to the writ application, the services of the petitioners were rightly cancelled for the following grounds that: (I) The Regional Director had no power to appoint on the post, because the power was xclusively vested with the Director, Animal Husbandry; (II) The appointments were made without any recommendation of the Subordinate Service Selection Board; (III) There was complete ban on ad-hoc appointment since 01.08.1985 vide order No. 7639 dated 11.06.1986 of Personnel Department, Government of Bihar, Patna (copy attached); (IV) No advertisement was issued; (V) Reservation Rules were not followed; (VI) No rules and norms of appointment was followed; (VII) Appointment were made in excess of sanctioned strength; (VIII) Equal opportunity to all eligible candidates were not given and the failure of the same tantamount of violation of Articles 14 and 16 of the Constitution of India. 6. In course of argument Mr. V. Shivnath, learned senior counsel appearing for the petitioners produced before me a copy of the order dated 10/04/2006of the Supreme Court, passed in Civil Appeal No. 2018/2006 with Civil Appeal No. 2034/2006 and submitted that similarly situated persons had move the Supreme Court for the similar relief and the Supreme Court by the aforesaid order dated 10/04/2006 gave certain directions to the respondents. It is submitted that the case of the petitioners is fully covered by the order and directions of the Supreme Court in the aforesaid civil appeals. 7. From perusal of the order dated 10/04/2006 of the Supreme Court, passed in the aforesaid appeals in the case of Abhay Kumar And Ors. v. Stale of Bihar (Now Jharkhand) and Ors. , it appears that the said two civil appeals arose out of S.L.P. (Civil) No. 23221-23222/2005 and S.L.P. (Civil) No. 24156/2005. In the said two appeals the Supreme Court observed that issue should not be kept pending indefinitely and, thereby, directed as follows: (1) That the respondent Authority shall advertise in the local newspapers having wide circulation of the holding of selections for the purpose of filling of those vacancies which according to the Rules are to be filled by direct appointment. (2) Applications should be asked for from those ad-hoc employees who were appointed in the Frozen Semen Bank Project between 1988 to 1992 and whose services were terminated in 1988. No such employee who has already been considered by the Selection Committee under the order dated 23/07/2003 shall apply. (3) No appointment already made either in the normal course or pursuant to the earlier order of this Court shall be disturbed. (4) The advertisement shall specify the last date with which the candidate concerned shall apply for consideration including thereon proof that the candidate had served with the authorities. (5) The selection shall be made by the Selection Committee only against the available vacancies. Preference shall be given to those who have longer tenure of service over those who have shorter tenure of service, other things being equal. (6) All other conditions in the order dated 23/07/2003 shall he operative as far as the procedure to be followed by the Selection Committee to be set up pursuant to this order is concerned. 8. From the above orders and directions, it is apparent that such directions were made to those applicants, who were appointed in between 1988-1992 and not for any other applicants. In the present case all the petitioners were appointed vide Annexure-1 series on 08/01/1994, therefore, the said order of the Supreme Court cannot be made applicable so far as the present petitioners are concerned Even the order as contained in Annexure 10 to the supplementary affidavit, which has been noticed above, it appears that the Supreme Court has clearly stated in the order while disposing of those appeals that the said appeals were decided purely on the facts and in the peculiar circumstances of that case and the same shall not be treated as precedent, therefore, the petitioners are also not entitled to any benefit out of the order of the Supreme Court contained in Annexure-10. 9. In such a situation, I hold that the petitioners are not entitled to any relief as prayed for in this writ petition. 10. Accordingly, having found no merit, this application is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.