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2006 DIGILAW 648 (PAT)

Kamal Chandra Sah v. State of Bihar

2006-07-27

body2006
ORDER On 1st November, 1994 petitioner was appointed as Constable. There is no dispute that before the petitioner was appointed as Constable no advertisement was published and, accordingly, he did not offer himself as a candidate to be selected for being appointed. The appointment letter of the petitioner itself shows that the petitioner was treated as a Hero for he defeated an attempt made by armed dacoits, who came for looting, and in course thereof he executed four notorious armed dacoits. This appointment of the petitioner has been revoked by the impugned order dated 3rd February, 2003 on the ground that the appointment of the petitioner was irregular. How and to what extent the appointment of the petitioner was irregular had not been indicated in the order terminating the appointment of the petitioner-Petitioner preferred an appeal. The appellate authority found as a fact that the bravery of the petitioner was reported by the Superintendent of Police, District Magistrate, Inspector General of Police and, ultimately, by the Director General of Police to the Government through the Home Secretary and there-upon the matter was brought to the notice of the then Chief Minister as well as Personnel Department of the State and there-upon as a reward for the bravery petitioner was given the special appointment. The appellate authority, however, felt that although such an appointment had been given but since the said appointment is contrary to the procedure laid down in Rule 661B of the Police Manual the appointment is irregular. Petitioner has challenged the said decisions in the present writ petition. 2. In paragraph 4 of the counter affidavit it has been stated that the petitioner was appointed by the Superintendent of Police, Katihar vide Katihar District D.O. No. 1757/94 dated 1.11.1994 as per order of Government of Bihar (Home) Special Memo No. 1410 Patna dated 19.8.1994 and under the Order of the Director General and Inspector General of Police, Bihar Memo No. 4574 dated 25.10.2004 A.I.G. (Karmik). Bihar Patna as a special case for showing bravery. In such view of the matter, it is an admitted position that the petitioner was given an appointment on the orders of Government of Bihar. 3. Bihar Patna as a special case for showing bravery. In such view of the matter, it is an admitted position that the petitioner was given an appointment on the orders of Government of Bihar. 3. It is true that the Government of Bihar, by making the Manual and by providing therein Rule 661B has directed all its Officers including the Director General of Police to recruit constables in the manner as has been provided for in the said Rule. It is the Government of Bihar who has created that Rule and it is, therefore, open to the Government of Bihar to make a departure from that Rule in appropriate cases and the same was done in the instant case by the Government of Bihar for the purpose of rewarding the petitioner for his bravery. It was unjust on the part of the Police Department of the State to think that Government of Bihar cannot make a departure in an appropriate case. It is true that no Officer of the Government of Bihar is capable of acting contrary to the said rule and, accordingly, no Officer, of the Government can give an appointment contrary to what has been prescribed in Rule 661B of the Manual. However, the Government of Bihar itself could make an exception and the same was done in the instant case: It, must be kept in mind that the Manual as it stands, is a creation of the Government of Bihar in its executive side and not of the Government of Bihar in its legislative side and, accordingly, executive Government of Bihar can always make an exception to Rule 661B of the Manual in deserving cases, but such exception must be made consciously and the same must be apparent on the face of the records. 4. In those circumstances, the writ petition is allowed and the impugned order dated 3rd February, 2003 as well as the appellate order dated 4th July, 2003 are quashed. Petitioner shall be deemed to be on service all throughout despite the orders dated 3rd February, 2003 and 4th July, 2003 but shall only be entitled to, in the facts and circumstances of the case, remuneration on and from today. Let the petitioner be reinstated forthwith and not later than one month from today.