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2007 DIGILAW 1555 (PAT)

Mahesh Kumar Ojha v. State Of Bihar

2007-09-20

S.K.KATRIAR

body2007
Judgment 1. Heard Mr. Ganesh Prasad Singh for the petitioner, and Mr. Sunil Kumar Mandal, learned Standing Counsel No.15 for the respondents. This writ petition is directed against the order bearing Memo No. 787, dated 12.6.2000 (Annexure-1), issued under the signature of respondent No.3 (Regional Deputy Director of Education, Tirhut Division, Muzaffarpur), whereby the services of the petitioner as a Class-IV employee in Project School of the State Government has been declared invalid, and the entire salary is sought to be recovered. The respondents have placed on record their counter affidavit and have supported the impugned order. 2. I have perused the materials on record and considered the submissions of learned counsel for the parties. The State Government had formulated a scheme known as Project School Scheme, wherein the schools were set up in different Blocks/ Villages exclusively for imparting education to girls. The Project Girls High School, Subhadra Jamunia, West Champaran, Bettiah, was one such project girls high school. Respondent No.3 had called for names from the Employment Exchange, East Champaran, Motihari, for appointment of a Class-IV employee in the project school In question. Three names were recommended by the Employment Exchange, East Champaran, Motihari, by its communication dated 5.6.1993 (Annexure-2). The petitioner was one of the recommended persons. Consequently the Divisional Establishment Committee met on 23.12.1993 and recommended, amongst others (not relevant in the present case), the petitioners name for appointment as a Class-IV employee. A copy of the minutes of 23.12.1993 is marked Annexure-3 to the writ petition. The petitioners service book was opened, extracts of which are marked Annexure-4 to the writ petition. This was followed by a show-cause notice to the petitioner to explain the validity of his appointment. On a consideration of the materials on record, the impugned order was passed. 3. While assailing the impugned order, learned counsel for the petitioner submits that the petitioners appointment was validly made after calling for names from the Employment Exchange. The matter was fully considered by the Divisional Establishment Committee. No fraud, misrepresentation or the like is attributable to the petitioner. The order for recovery of the entire salary paid to the petitioner is also unwarranted. He also submits that in view of the judgment of the Supreme Court reported in (2006)4 S.C.C. 1 [Secretary, State of Karnataka & Others Vs. Uma Devi (3) and others], his case may be considered for reguiarisation. The order for recovery of the entire salary paid to the petitioner is also unwarranted. He also submits that in view of the judgment of the Supreme Court reported in (2006)4 S.C.C. 1 [Secretary, State of Karnataka & Others Vs. Uma Devi (3) and others], his case may be considered for reguiarisation. He also relies on a few orders of this Court. 4. The learned Government Counsel has supported the impugned action and has also placed his counter affidavit. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. Law is well settled that all public employment in this country is a national wealth and every citizen should have unrestricted access to the same, which is possible only after the vacancies are advertised and given wide publicity, so that every eligible candidate becomes aware of the same and is ln a position to apply for consideration of his candidature. The admitted position in the present case is that no such step was taken. The petitioner was never an applicant and was undoubtedly employed through the back-door. This is wholly impermissible in law and goes to the root of the appointment. Making appointment on the basis of names received from the employment exchange is not even a poor substitute for advertisement of vacancies. The impugned order says that the petitioners appointment was not only in serious violation of the prescribed procedure but was wholly illegal and was also done in a premeditated manner, which takes the bottom out of the petitioners case. The impugned order cannot be faulted. 6. I must consider the petitioners submission that his case may be directed to be considered for regularisation. The learned Government Counsel has rightly relied on the judgment of the Supreme Court reported in (2007)1 S.C.C. 575 (State of M.P. and Others Vs. Lalit Kumar Verma), wherein it has been held that the distinction between "irregular appointment" and "illegal appointment" is apparent. The learned Government Counsel has rightly relied on the judgment of the Supreme Court reported in (2007)1 S.C.C. 575 (State of M.P. and Others Vs. Lalit Kumar Verma), wherein it has been held that the distinction between "irregular appointment" and "illegal appointment" is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is a part of the "State" within the meaning of Article 12 of the Constitution, the recruitment would be an illegal one; whereas there may be cases where, although substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of rules might not have been strictly adhered to. 7. In view of the authoritative pronouncement of the Supreme Court, it is not possible to accede to the petitioners submission for consideration of his case for the purpose of regularisation, inter alia, for the reason that the petitioners appointment was illegal and void ab-initio. 8. The writ petition is dismissed.