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2007 DIGILAW 1836 (PAT)

Bachcha Rai v. State Of Bihar

2007-11-29

V.N.SINHA

body2007
Judgment V.N.Sinha, J. 1. Heard learned Counsel for the Petitioner and the State. Petitioner has challenged office Order No. 877 dated, 4.04.2006, Annexure-11, whereunder Secretary, Personnel and Administrative Reforms Department of the State Government, Respondent No. 2 has cancelled his appointment on the post of Assistant with effect from the date of initial appointment with observation that emoluments already received by the Petitioner during the period of employment shall not be recovered. The ground taken in support of cancellation is that Petitioner was not eligible for being appointed as Assistant pursuant to Advertisement No. 13 of 1987 published in Hindustan newspaper dated, 7.08.1987, as contained in Annexure-2. Perusal of Advertisement No. 13 of 1987 dated, 7.08.1987, Annexure-2 would indicate that thereunder ministerial employees of the Secretariat and attached offices as also of the Mufassil offices of the State Government were offered employment on the post of Secretariat Assistant through a limited competitive examination. Petitioner was appointed as a routine Clerk in the establishment of the Vice Chairman, Bihar State Complaint and Vigilance Board under office Order bearing Memo No. 3849 dated, 4.10.1986, Annexure-1. Perusal of the said office Order, Annexure-1 would, however, indicate that he was appointed as an outsider on the post of routine Clerk and the tenure of his appointment was coterminous with the tenure of appointment of the Vice Chairman of the Bihar State Complaint and Vigilance Board. Petitioner having noticed Advertisement No. 13 of 1987 dated, 7.08.1987, Annexure-2 applied for being considered for the post of Secretariat Assistant and after receipt of the admit card appeared in the examination and became successful, whereafter recommendations were made by the Bihar State Subordinate Service Selection Board on the basis of which Order appointing him and others bearing Memo No. 9797 dated, 27.07.1989, Annexure-4 was issued and Petitioner was posted as Assistant in the Cane Department of the State Government where he was allotted work under office Order bearing Memo No. 3106 dated, 22.08.1989, Annexure-13 and thereafter his pay was fixed in the revised scale on provisional basis under office Order bearing Memo No. 395 dated, 30.01.1990, Annexure-14 vide Serial No. 67 of the chart appended with the said office Order and at the bottom of the chart it was clearly indicated that the persons mentioned at Serial No. 61 to 67 were newly appointed persons and their salary was not required to be fixed with effect from 1.01.1986. Petitioner while serving as Assistant in the Cane Department also passed hindi noting and drafting examination, as is evident from Order bearing Memo No, 103 dated, 21.02.1992 issued by the Rajbhasha Department of the State Government, Annexure-15. Cane Commissioner under office Order bearing No. 312 dated, 31.01.1994, Annexure-16 returned the services of the Petitioner to the Personnel and Administrative Reforms Department, whereafter his services were placed at the disposal of the Water Resources Department under office Order No. 227 dated, 2.05.1994, Annexure-5 and 17 whereafter the period between 1.02.1994 to 2.05.1994 during which he awaited for posting was regularized by the Personal and Administrative Reforms Department vide their instructions contained in Letter bearing Memo No. 163 dated, 5.05.1995, Annexure-18. Petitioner was, however, placed under suspension under office Order No. 548 dated, 23.08.1997, Annexure-6 in contemplation of a departmental enquiry on the ground that he was not qualified to appear in the Limited Departmental examination conducted pursuant to Advertisement No. 13 of 1987, Annexure-2 as he was an outsider routine Clerk in the establishment of the Vice Chairman of the Bihar State Complaint and Vigilance Board and was not qualified to appear in the Limited Departmental examination meant for ministerial staff of the Secretariat, attached office and Muffasil office. Later, charge sheet dated, 22.05.1999, Annexure-7 spelling out the aforesaid charge was also served on him. Petitioner continued under suspension for about one and half year whereafter under office Order bearing Memo No. 357 dated, 24.04.2000, Annexure-21 his suspension was revoked and he submitted his joining in the headquarters of the Water Resources Department on 24.04.2000, as is evident from joining report, Annexure-22, whereafter he was posted in the office of the Chief Engineer, Water Resources Department, Siwan under office Order No. 222 dated, 25.09.2000, Annexure-23 and his last pay-slip was forwarded to the Chief Engineer under Memo No. 2449 dated, 26.09.2000, Annexure-24. Later, the departmental proceeding itself was closed under office Order No. 05 dated, 3.12.2005, Annexure-8 with stipulation that separate show cause about the illegality in his appointment on the post of Assistant pursuant to Advertisement No. 13 of 1987, Annexure-2 has already been asked for which is contained in Memo No. 03 dated, 2.12.2005, Annexure-9 in compliance whereto Petitioner submitted his reply dated, 25.01.2006, Annexure-10 and having considered the reply and the eligibility clause of Advertisement No. 13 of 1987, Annexure-2 and the fact that the Petitioner was appointed as routine Clerk in the establishment of the Vice Chairman, Bihar State Complaint and Vigilance Board as an outsider which appointment was coterminous with the tenure of appointment of the Vice Chairman of the Bihar State Complaint and Vigilance Board i.e. until 30.11.1988 under impugned office Order No. 877 dated, 4.04.2006, Annexure-11 it was held that Petitioner being not eligible to be appointed as Assistant pursuant to Advertisement No. 13 of 1987, Annexure-2 his appointment is accordingly terminated with effect from the date of appointment with stipulation that the emoluments paid to the Petitioner during the period of employment shall not be recovered. 2. Petitioner has assailed the said Order on the ground that he may not be a ministerial employee of the Secretariat and attached office or the Mufassil office of the State Government as he was appointed as an outsider on the post of routine Clerk in the establishment of the Vice Chairman, Bihar State Complaint and Vigilance Board and his appointment was coterminous with the tenure of appointment of the Vice Chairman, Bihar State Complaint and Vigilance Board but nonetheless he has successfully competed along with those who were ministerial employees of the Secretariat and attached office/Mufassil office and in the circumstances after having served the two Departments of the State Government, namely, Cane Department and Water Resources Department for sufficiently long period i.e. about 10 years his appointment should not be cancelled as cancellation of his appointment will relegate him and his other family members towards starvation which shall not only be arbitrary but shall also violate his right to life. 3. 3. It has been further submitted that his application form for appearing in the Limited Departmental examination pursuant to Advertisement No. 13 of 1987, Annexure-2 was duly certified by the head of the office i.e. Under Secretary of the Cabinet Vigilance Department and the certified application form was forwarded to the Bihar State Sub-ordinate Service Selection Board by the Secretary of the Vigilance Board, Patna under Letter No. 732 dated, 20.08.1987, Annexure-3 and the Authorities of the Selection Board were all along aware that Petitioner was routine Clerk in the Vigilance Board. In the circumstances, when he has not only successfully competed in the Limited Departmental examination but has also successfully served the two Departments of the State Government for about 10 years then his appointment should not be cancelled. 4. In support of the aforesaid claim learned Counsel for the Petitioner has relied on the Judgment in "the case of Buddhi Nath Chaudhary and Ors. V/s. Abhai Kumar and Ors., AIR 2001 SC 1176 , paragraph 6, It appears in the case of Buddhi Nath Chaudhary (Supra) the appointment of the Appellants as Motor Vehicle Inspector was questioned on the ground that the Appellants did not possess the qualification and experience as provided in the advertisement but during the pendency of the litigation the Appellants continued to serve as Motor Vehicle Inspector and taking into account the service rendered during the period of litigation Hon ble Supreme Court observed as follows: 6. The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise Ordered by the High Court will only lead to anomalous results. Learned Counsel for the Petitioner further relied on the case of Veena Kumari Jha V/s. State of Bihar and Ors., 2002 4 PLJR 601 paragraphs 13 and 14, Binod Kumar Singh and Ors. V/s. State of Bihar and Ors., 2005 4 PLJR 200 paragraphs 5 and 8 and in the case of Sanjay Kumar and Ors. Learned Counsel for the Petitioner further relied on the case of Veena Kumari Jha V/s. State of Bihar and Ors., 2002 4 PLJR 601 paragraphs 13 and 14, Binod Kumar Singh and Ors. V/s. State of Bihar and Ors., 2005 4 PLJR 200 paragraphs 5 and 8 and in the case of Sanjay Kumar and Ors. V/s. State of Bihar and Ors., 2007 4 PLJR 188 for the proposition that Petitioner having served for about ten years the legality of his appointment should not be questioned at this belated stage as he has already spent the prime time of his life serving the two Departments of the Government and at this belated stage it will be very difficult for him to look for another employment securing his livelihood. In this connection he has also relied on the office Order No. 585 dated, 22.07.1999 passed by the Personnel and Administrative Reforms Department of the State Government itself in the case of Sri Ravi Shankarwho was also holding a tenure post of routine Clerk in the Freedom Fighter Advisory Committee which was also coterminous with the tenure of the appointment of the Vice Chairman and ignoring such fact had appeared in the Limited Departmental examination pursuant to the same Advertisement No. 13 of 1987 and when the illegality was detected, after conclusion of the departmental enquiry, was imposed lesser punishment of censure, stoppage of increments and no salary for the suspension period but retained in service and with reference to the said Order it is submitted that the Petitioners case is also similar to that of said Ravi Shankar and he also be allowed the same punishment which has been given to Ravi Shankar under office Order No. 585 dated, 22.07.1999, Annexure-25 but retained in service so that he and his family may continue with their livelihood at this belated stage. 5. State-Respondents with reference to the averments made in the counter affidavit as also the contents of the impugned Order bearing Memo No. 877 dated, 4.04.2006, Annexure-11 submitted that the relief prayed for is fit to be rejected as Petitioner being a B.Com. 5. State-Respondents with reference to the averments made in the counter affidavit as also the contents of the impugned Order bearing Memo No. 877 dated, 4.04.2006, Annexure-11 submitted that the relief prayed for is fit to be rejected as Petitioner being a B.Com. (Honours) was aware of the contents of Advertisement No. 13 of 1987, Annexure-2 and he knew from day one that he was not qualified to appear in the Limited Departmental examination still he appeared on account of the laches on the part of the Authorities and secured employment that will not create any right in his favour to further continue in employment as lack of qualification for appearing in the Limited Departmental examination shall render subsequent employment a nullity and the Authorities having appreciated the illegality/nullity in the nature of appointment of the Petitioner have cancelled his employment under the impugned Order dated, 4.04.2006, Annexure-11 and this Court should not come to his rescue as that shall tantamount to condoning the illegality which goes to the very root of the matter as the Petitioner was not qualified to appear in the Limited Departmental examination. In this connection he has relied on the Judgment of the Hon ble Supreme Court in the case of Anil Kumar and Ors V/s. The State of Bihar and Ors. 1999 1 PLJR 487 paragraph 6, Smt. Ravinder Sharma and Anr. V/s. State of Punjab and Ors., AIR 1995 SC 277 and in the case of Secretary, State of Karnataka and Ors. V/s. Uma Devi (3) and Ors., 2006 4 SCC 1 , paragraphs 5,13 and 17. 6. With reference to the case of Smt. Ravindra Sharma and Anr.(Supra) it has been submitted that lack of qualification to appear in the Departmental Examination can never be condoned and no sooner the lack of qualification to appear in the Departmental Examination has been discovered the only action which is called for is to terminate the employment. With reference to the Judgment of a Constitution Bench of the Hon ble Supreme Court in the case of Uma Devi (3) and Ors. (Supra) learned Counsel for the State submitted that equity has no consideration when the appointee lacks even the basic qualification for the post and the appointment has been made in clear violation of the constitutional scheme and the statutory rules. In this connection, he relied on paragraphs 13 and 17 of the said Judgment. (Supra) learned Counsel for the State submitted that equity has no consideration when the appointee lacks even the basic qualification for the post and the appointment has been made in clear violation of the constitutional scheme and the statutory rules. In this connection, he relied on paragraphs 13 and 17 of the said Judgment. 7. Having heard Counsel for the parties and having considered the rival submissions, I am of the view that the Petitioner lacked eligibility to appear in the Limited Departmental examination pursuant to Advertisement No. 13 of 1987, Annexure-2 but as he was allowed to appear in the Limited Departmental examination and he successfully competed and was appointed as Assistant and served the two Government Departments for about ten years, he should also be given the same treatment which was given to Sri Ravishankar who was also routine Clerk in the Freedom Fighter Advisory Committee and his appointment was also coterminous with the tenure of appointment of the Vice Chairman of the Committee and he also appeared in the Limited Departmental examination pursuant to Advertisement No. 13 of 1987, Annexure-2 and selected but was imposed lighter punishment under Order bearing Memo No. 585 dated, 22.07.1999, Annexure-25. Two similarly situate persons have been treated differently. In the opinion of this Court, such different treatment in the case of the Petitioner vis-a-vis Sri Ravishankar, under whose case Order bearing Memo No. 585 dated, 22.07.1999, Annexure-25 was passed, "infracts equality clause of the Constitution and thereby violates Art. 14 and 16 and appreciating such position impugned Order bearing Memo No. 877 dated, 4.04.2006, Annexure- 11 is quashed and the matter is remitted back to the Secretary of the Personnel and Administrative Reforms Department of the State Government, Respondent No. 2 to consider the case of the Petitioner in the light of departmental office Order bearing No. 585 dated, 22.07.1999, Annexure-25. For the period between the date of termination till the date of passing of this Order Petitioner shall be entitled for continuity of service for the purposes of pension but without back wages on the principles of "No work no pay". 8. This writ application is, accordingly, disposed of.