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2007 DIGILAW 1353 (PAT)

Pramod Singh @ Parmod Singh v. State Of Bihar

2007-08-16

J.N.BHATT, KISHORE K.MANDAL

body2007
Judgment 1. In this Letters Patent Appeal under Clause 10 of the Letters Patent of the Patna High Court, the appellant-original writ petitioner, has assailed the judgment, dated 21.6.2006, passed by the learned Single Judge in a writ petition under Article 226 of the Constitution of India, being CWJC No. 6741 of 2003. 2. The appellant-original writ petitioner initiated the legal battle by filing the aforesaid writ petition questioning the legality of issuance removal order from the service, by Memo No.135, dated 26.2.2003, issued by the Superintendent of Police, Railway, Katihar, as also Memo 471, dated 18.3.2003, communicating the dismissal order to the appellant-original writ petitioner, placed at Annexures 1 and 2 to the main writ petition. 3. The father of the appellant-original writ petitioner was working as constable in Bihar Police who made an application on 30.1.1989 to the Inspector General of Police, Railway, contending that his health was not well and on that ground, he is unable to discharge hard duty on the post of constable. Therefore, he sought voluntary retirement from service and requested to appoint his son, the appellant-original writ petitioner, in his place as constable which came to be granted by Memo No. 1200 dated 13.4.1989, issued by the Railway I.G., Bihar, Patna, approving the case of the appellant-original writ petitioner for appointment. 4. The father of the appellant-original writ petitioner was permitted to take voluntary retirement from service on the post of constable and later on, his son, the appellant-original writ petitioner, was appointed who, later on, came to be removed from service on the ground that the appointment was not made on the ground of compassionate basis and, as such, the appointment was made without any authority and without following the procedure of recruitment. 5. The appellant-original writ petitioner by filing the writ petition has claimed his appointment on the ground of equity. He further pleaded that there was no fraud and misrepresentation on his part and, therefore, he cannot be removed. 6. The learned Single Judge did not find favour with this submission, as a result of which the writ petition came to be dismissed as aforesaid. 7. He further pleaded that there was no fraud and misrepresentation on his part and, therefore, he cannot be removed. 6. The learned Single Judge did not find favour with this submission, as a result of which the writ petition came to be dismissed as aforesaid. 7. It is well settled proposition of law that if the appointment is made in a public employment either by an authority who has no such power or if the appointment has been made in violation of the recruitment, rules and the provisions, or such appointment is against the post which is not in existence or has not been sanctioned, such appointment, obviously, creates no right and interest in favour of appointee, much less a right which can be defended with the aid of writ jurisdiction of the Court under Art. 226 of the Constitution of India. 8. In the present case, the appointment could not be said to have been made on compassionate basis as father of the appellant-original writ petitioner had voluntarily retired. The placement or appointment of a son of an employee who seeks voluntary retirement cannot be made on compassionate basis in absence of any provisions thereof in the relevant rules, or in any other benign scheme. No such provision is shown to have been made. Such appointment, thus, cannot be defended on the basis of equity. The submission that appointment of the appellant-original writ petitioner came to be cancelled and removal order came to be passed after a long time is of no avail to the appellant original writ petitioner. The view which we are inclined to take at this juncture, has been, squarely, explored and propounded in a latest Constitutional Bench decision on this point by the Hon ble Apex Court as Secretary, State of Karnataka and Ors. V/s. Uma Devi (3) and Ors., 2006 4 SCC 1 . 9. We, therefore, find no substance and merit in this Letters Patent Appeal which deserves to be rejected at the threshold. 10. Accordingly, this appeal shall stand dismissed. No costs.