Judgment 1. The petitioners in this writ application have challenged the order dated 19.7.2006, as contained in Annexure-20 wherein the services of nineteen persons including the seven petitioners have been terminated. The petitioners are Road Roller Khalasis and were working in sanctioned vacant posts of Road Roller Khalasi in the Road Construction Department of Government of Bihar in various Road Divisions. The facts not being in dispute and being on record, with the consent of parties, this writ application is being disposed of at this stage itself especially as the only consideration is the legal consequence on the facts accepted by the parties. 2. The petitioners and some others were appointed in 1994 as Road Roller Khalasi for a period of three months by the respective Executive Engineers with the approval of Superintending Engineers. This was necessitated because of vacancies and because the work of road repair was suffering in absence of regular appointees. After expiry of three months, the services were not terminated. They were allowed to continue. In 1995, the Department was of the view that their appointments were not properly made that is their appointments had been made without any advertisement, as such, decided to terminate all such Road Roller Khalasies who were more than twenty in number. It is not in dispute that the Association of Workmen represented before the Department requesting that those persons be taken back in service for various reasons. Apparently, it was in order to facilitate the work in the Department. It appears the matter was considered and substantial number of persons so earlier dismissed were taken back and fresh appointment letters were issued in this regard appointing them in November, 1995. 3. It appears a few of such Road Roller Khalasi who had been appointed and dismissed were not taken back. They felt discriminated. They filed writ application before this Court which was CWJC No. 6446 of 1999 which was disposed of on 28.2.2005. This writ petition was filed four years after the petitioners and their like were reinstated. An Hon ble Single Judge of this Court disposed of writ application by directing that the authorities should take a fresh decision with regard to the petitioners keeping in view the fact that other similarly situated were taken back. This writ petition was filed four years after the petitioners and their like were reinstated. An Hon ble Single Judge of this Court disposed of writ application by directing that the authorities should take a fresh decision with regard to the petitioners keeping in view the fact that other similarly situated were taken back. Having disposed of the writ petition, thus, it was observed that in course of enquiry if it is found that the persons who were taken back in service were wrongly taken back then action against those reemployed persons should be taken. It appears that pursuant to such direction, enquiries were made and the Secretary of the Department, while dealing with the case of the four writ petitioners, as abovementioned, held that their initial appointments in the year 1994 was illegal as their had been no advertisement in this regard and, as such, they had no right to be reappointed. While doing so, the Secretary also held that as these writ petitioners and others had been similarly appointed, their services should be terminated after issuing show cause to them and consequently the Superintending Engineer, by the impugned office order dated 19.7.2006, has terminated the services of the petitioners and others totalling nineteen in number retaining the service of one Md. Mustaquim Ansari to whose case, I will refer later. Their services have been terminated with effect from 31.7.2006 and the only ground that is given is that the Commissioner-cum-Secretary of the Road Construction Department had already found the appointments made in such a manner to be illegal and had directed notices to be issued before termination which having been issued, the services of the petitioners were being terminated. 4. The short submission on behalf of petitioners is that the petitioners had been appointed on sanctioned vacant posts as there was urgent need of Road Roller Khalasies. They were permitted to continue. Authorities who were responsible for their appointment found that the posts were neither advertised nor roster clearance taken, as such, their services were immediately terminated in 1995 but notwithstanding the aforesaid, the Department immediately re-employed them in 1995 itself and since 1995 upto 2006, they have been continuously working on regular pay scale. Some of them were even transferred from one place to other place. Some of them were even transferred from one place to other place. It is submitted that the departure from established procedures in matter of appointment was only that the posts had not been advertised and roster clearance was not taken both of which were matters in which petitioners had nothing to do and these matters in the perspective of having already worked for eleven years could at best be termed as irregularities and not illegalities in matter of appointment as now has been judicially determined. The result would be that there being irregularity in their appointment and they having worked for a period of almost eleven years, it would be inequitous to dismiss them in view of the judgments of this Court and those of the Apex Court. It is in view of the aforesaid fact that this Court has to determine whether non-publication of advertisement and non-conformity with roster clearance would render the appointment, in the perspective of eleven years of service thereafter, illegal or irregular, for the consequences are different. It would only be appropriate to caution here, that if the action had been taken by the authorities immediately as was done in 1994 itself then the distinction which is now being sought to be drawn as between illegal and irregular appointment would not be available because there was no long continuous employment thereafter. The dismissals could not have been assailed. The situation changes when an employee has been permitted to work for over a decade. One has to consider equities and the social repercussions on the employee who, by himself, was not at fault. Those rights have to be balanced. 5. The first case in this regard to be noticed is the case of Abhay Kumar Pandey vs. State of Bihar & Others since reported in 2000(2) Bihar Law Judgment 686 [: 2000(2) PLJR 115 ] wherein this Court noticed that the appointment of the person in question was without advertisement yet referring to decisions of Apex Court, it held that as the employee had been permitted to work and continued to work for over nine years, it would be inequitous to permit the authorities to turn around and dismiss him now. The writ application was allowed and the dismissal order was quashed with a direction for reinstatement and all consequential benefits. It appears the State preferred Letters Patent Appeal. The writ application was allowed and the dismissal order was quashed with a direction for reinstatement and all consequential benefits. It appears the State preferred Letters Patent Appeal. In the Letters Patent Appeal, the writ petition was dismissed apparently holding that as the appointment was without following due procedure, it was illegal and equities could not flow in favour of such an appointee. The writ petitioner then approached the Apex Court. The Apex Court by order dated 8th August 2003, as passed in Civil Appeal No. 6297 of 2003, allowed the appeal, with only difference that it did not allow back wages consequent to reinstatement. It specifically set aside the order made by the Division Bench and restored the order made by the learned Single Judge clearly holding that the Division Bench should have upheld the order of the learned Single Judge when the appellant had continued in service for over nine years. 6. In the case of Shanta Bendit Subiru Barla @ Shanta Barla vs. State of Bihar & Others since reported in 2001(2) PLJR 583 , the petitioners services were terminated alleging irregularity in initial appointment after putting in more that ten years of continuous service. Such termination was set aside by this Court holding as no fraud had been practised by the petitioner and the petitioner had been found fit and allowed to continue in service for over ten years, it was not a case in which the services could be terminated. In this case also, it is apparent that the petitioner was appointed without any advertisement and immediately before circular imposing ban on appointment of daily wagers. There is yet another precedent being the case of Sanjay Rai & Others vs. State of Bihar & Others since reported in 2003(1) PLJR 159 wherein again the question of constitutionality of such appointments without advertisement and consequential dismissal was considered in the perspective of the person being permitted to continue to work for ten years. After noticing various judgments of the Apex Court and this Court, it was held that the termination in the facts aforesaid could not be sustained. 7. After noticing various judgments of the Apex Court and this Court, it was held that the termination in the facts aforesaid could not be sustained. 7. Lastly, the recent decision of the Apex Court in the case of Secretary, State of Karnataka & Others vs. Uma Devi (3) & Others being (2006)4 Supreme Court Cases 1 [: 2006(2) PLJR (SC)363] [hereinafter referred to as Uma Devi (3)] has been pressed into service by both the petitioners and the respondents. The petitioners, referring to the said judgment, have submitted that if the appointments were irregular and they were allowed to continue in service for a fairly long period of time then such appointees could not be terminated and/or thrown out but if the appointment was illegal then there is no question of retaining them in service as their continuance in service has to be ignored. In my view, a distinction has been drawn by the Apex Court between rank illegality in appointment and a procedural irregularity therein, in case of a rank illegality, the appointment does not exist in eye of law and, as such, merely because the appointee continued for a long period, it would not confer any right on him to continue as such. His appointment being void ab initio, he could be terminated at any time. But this is not a case where there has been a procedural infirmity in appointment and the person has been permitted to work for a considerable period without rectifying the situation expecially when the irregularity was also within the knowledge of the authorities. If no immediate steps to terminate is taken then by passage of time, the equities change and later the authorities could be estopped from exercising the right to dismiss the appointees. The immediate question, as raised by the learned counsel for the respondentState, is whether in the facts of the present case, the appointment was illegal or irregular. He submitted that appointment having been made without advertisement would be per se illegal and, as such, by operation of the judgment of the Apex Court in the case of Uma Devi (3), dismissal of such appointees could not be interferred. 8. He submitted that appointment having been made without advertisement would be per se illegal and, as such, by operation of the judgment of the Apex Court in the case of Uma Devi (3), dismissal of such appointees could not be interferred. 8. Having considered the aspects and the judgment of Uma Devi(3) and the judg ments of this Court, as referred to above, it is clear that this Court in the perspective of long standing service and the jurisprudence developed in that regard have held that non-publication of advertisement and such like irregularities are not illegalities and they cannot be used to terminate the services. A caveat is necessary at this point. All these cases are cases where the employees had worked for almost ten years that the authorities were responsible and cognizant of the irregularities. Petitioners/appointees had nothing to do with those irregularities. Those irregularities were not induced by the appointees in all the three decisions of the High Court, referred to above. Undisputedly, appointments were made without advertisement but yet this Court stepped in to save the appointees from dismissal and the only common ground was their long standing continuous service thereafter. 9. In the present case it is not in dispute that the irregularity in appointment was detected as far back as in 1994 itself when for the first time, the petitioners were dismissed but notwithstanding those, the Department re-employed them. The petitioners had nothing to those irregular procedures or infraction of those procedures. They continued in service for over eleven years and now are being told that merely because the officers committed a default in following the procedure, the petitioners had lost a right to continue in employment. In other words, what is said that the State functionary defaulting the private citizen must suffer and not that the citizen must suffer because of his fault. To my mind, such an action is impermissible considering the long period which the petitioners have served. In other words, what is said that the State functionary defaulting the private citizen must suffer and not that the citizen must suffer because of his fault. To my mind, such an action is impermissible considering the long period which the petitioners have served. In such a situation, I have no option but to hold that the dismissal of the petitioners cannot be justified in law and, as such, the impugned order, as contained in Annexure-20, which is nothing but a follow up order of Annexure-16, is quashed and it is directed that the petitioners be reinstated but in the facts and circumstances, it would be without the benefit of back wages as between the period of their recent dismissal and their re-employment. It is being pointed out by the learned counsel for the State that it is possible that the posts on which the petitioners had been working itself have since been abolished after their dismissal. If such is a contingency then it goes without saying that the petitioners cannot be reinstated. However, as the dismissal cannot be sustained and at the time of dismissal the posts existed, the authorities would then be required to proceed on the basis that as on the date of abolition of posts, the petitioners would be deemed to be retrenched and they would be dealt accordingly. 10. Earlier in the judgment, I have noticed the case of one Md. Mustaquim Ansari who was ordered to be retained in service apparently pursuant to orders of this Court as noted in the impugned order (Annexure-20). The learned counsel for the petitioners has drawn my attention to the orders of this Court passed in CWJC No. 13234 of 1992 dated 9.12.1993 in respect of the said person wherein all that was said that the authorities should examine his case for regularisation but had not passed any order to keep him in service. Such a reference in the impugned order in respect of said person is clearly on some misapprehension of facts. But this will not detain this Court any further in view of the orders passed in respect of the petitioners. 11. Such a reference in the impugned order in respect of said person is clearly on some misapprehension of facts. But this will not detain this Court any further in view of the orders passed in respect of the petitioners. 11. Before parting, I would like to observe that on one hand, State takes a stand that the appointments, as made, are illegal for various procedural infirmities and chooses to take drastic action of dismissal of employees on such count but never or rarely identifies the officers who were responsible for such procedural lapses and never ever takes action against those officers who perpetuated the illegality. Those officers are allowed to reap the benefit of illegal appointments and the victims are the job seekers who under compulsive circumstances accept such illegal appointments. This Court feels that wherever actions for terminating such illegal appointments are taken, State would be duty bound to simultaneously take action against the officers concerned involved or connected with making such illegal appointments. It is only if the State acts in such a manner that the process of making illegal appointments would come to an end and justice would be done on all counts and not a justice one way. 12. This writ application is, accordingly, allowed with the aforesaid directions and observations.