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2006 DIGILAW 702 (PAT)

Anil Kumar v. State of Bihar

2006-08-11

body2006
ORDER 1. All these seven writ petitions shall be governed by this common judgment and order in view of common question of law raised by learned counsel for the petitioners. At the outset, it must be pointed out that detailed arguments were advanced only in CWJC No. 11980 of 2000 and the same has been adopted by counsel for the petitioners in other cases. 2. In all these cases, the issue is whether this Court should issue appropriate writ to quash the impugned orders passed by the Director, Secondary Education, Government of Bihar, whereby and whereunder it has been held that the petitioners, who claim to be occupying class IV or Class III posts in various schools, are not entitled to continue in service because the appointments were made without following the prescribed procedure inasmuch as no advertisements were issued, no panels were prepared and the petitioners were appointed in illegal manner and allowed to continue by concerned District Education Officers till such illegality was detected in an inquiry held after giving opportunity of show cause to the petitioners. 3. On behalf of the petitioners, reliance has been placed upon some judgments given in past by single Bench as well as in Letters Patent Appeal by Division Bench to submit that on consideration of similar facts, several writ petitions have been allowed in the past and denial of similar relief to the petitioners would amount to violation of Article 14 of the Constitution of India. 4. In CWJC No. 11980 of 2000, it was further submitted that case of the petitioner is almost identical to the case of the Abhay Kumar @ Abhay Kumar Singh, whose writ petition bearing CWJC No. 111 of 2001 was allowed by a single Bench of this Court by judgment and order dated 18.7.2003 against which the State preferred LPA No. 328 of 2004 which was dismissed by judgment and order dated 10.3.2004. However, it is noticed that the judgment of the Writ Court dated 18.7.2003 proceeded on the hypothesis that since the employee had worked for about 10 years hence, the issue of legality of appointment cannot be gone into. 5. It was further submitted that the SLP preferred by the State was also dismissed summarily by the Supreme Court on 27.3.2006. However, it is noticed that the judgment of the Writ Court dated 18.7.2003 proceeded on the hypothesis that since the employee had worked for about 10 years hence, the issue of legality of appointment cannot be gone into. 5. It was further submitted that the SLP preferred by the State was also dismissed summarily by the Supreme Court on 27.3.2006. The said order in Special Leave to Appeal (Civil) No. 27412 of 2004 reads as follows : "Heard learned counsel for the parties. The Special Leave Petition is dismissed on the ground of delay as also no merits." 6. It is useful to notice that in the counter affidavit filed in CWJC No. 11747 of 2000 a judgment and order of a single Bench of this Court dated 25.10.2000 passed in CWJC No. 5285 of 1999 has been annexed to show that a similar plea to the effect that out of 14 persons 11 had been granted relief by different orders of this Court and therefore, the petitioner of that case should also be given similar relief, was not accepted on the basis of various judgments of the Apex Court. Of course, that judgment related to the issue of maintainability of the writ petition. But it is relevant to the extent that the plea of passing uniform order in similar cases disregarding materials on merits or maintainability was not accepted because of binding precedent of the Apex Court. 7. Learned counsel for the State has further placed reliance upon a recent Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Others, reported in (2006) 4 SCC 1 , to submit that the said judgment dated 10.4.2006 has discussed large number of judgments of High Court and the Supreme Court on the issue relating to absorption/regularisation or permanent continuance of different types of employees appointed/recruited and continued for long in public employment de hors the constitutional scheme of public employment. After review of all the relevant case laws it has been held in the said judgment that the Supreme Court and the High Court should not issue directions for continuance of such employees unless the recruitment itself was made regularly and in terms of the constitutional scheme. After review of all the relevant case laws it has been held in the said judgment that the Supreme Court and the High Court should not issue directions for continuance of such employees unless the recruitment itself was made regularly and in terms of the constitutional scheme. On careful perusal of said judgment, it is noticed that the Apex Court has clearly declared that long continuance in irregular or illegal public employment cannot sustain a claim to permanence. In paragraph 43 of the said judgment it has been held- 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee." To same effect is the finding in paragraph 49 of the judgment. 8. Paragraphs 15 and 53 of the said judgment point out that in context of public employment regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment where the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, such illegality cannot be regularised. Only in cases which are fit for regularisation as discussed in the said judgment, a direction has been made by the Apex Court to consider regularisation in cases of irregular appointment (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts if the employees have continued to work for ten years or more without help of any litigation leading to orders of the courts or of tribunals. In paragraph 54 of the judgment it has further been clarified that all those decisions which run counter to the principle settled in this decision, or in which directions running counter to what has been held therein, will stand denuded of their status as precedents. Hence, the judgments in the case of Abhay Kumar Singh noticed earlier cannot now be a good precedent. 9. On behalf of the petitioners the only reply to the said judgment was a submission that since similarly situated employees of the said department have received benefits under earlier judgments of single Bench, Division Bench etc. hence, the petitioners should be given same relief otherwise Article 14 would stand violated. 10. On facts, this Court has to difficulty in holding that the appointments given to petitioners were in violation of Articles 14 and 16 of the Constitution of India and since it related to public employment, such appointments in terms of the aforesaid Constitution Bench judgment of the Apex Court would not confer any right on the petitioners. In absence of any right to the public employment being claimed by the petitioners, no writ can be issued in their favour. 11. The writ petitions are, therefore, dismissed. In the facts of the case, there shall be no order as to costs.