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2007 DIGILAW 189 (PAT)

Gautam Pandit v. State Of Bihar

2007-01-29

V.N.SINHA

body2007
Judgment V.N.Sinha, J. 1. Heard learned Counsel for the Petitioner, the Respondents and the Intervener. 2. Petitioner, who earlier served as clerk in the office of the District Mines Officer, Muzaffarpur, has filed this writ application for quashing the office order, bearing Memo. No. 115 dated 10.2.2005, Annexure-1, passed by the Joint Secretary, Department of Mines and Geology, Government of Bihar, Patna, whereunder he has been reverted to the post of peon on the ground that his appointment as clerk was made without undergoing any selection process and roster clearance and is void ab initio. 3. Petitioner has assailed the impugned order on the ground that the Director, Mines under his Memo. No. 5418 dated 15.10.1993, Annexure-10A granted him first time bound promotion in the scale of Rs. 1320-2040.00 on provisional basis in anticipation of the approval from the competent authority with further stipulation that in the event provisional time bound promotion is found erroneous then the amount paid in lieu of such promotion shall be recovered, which promotion was confirmed by the Secretary, Mines & Geology Department in the light of the instruction of the Finance Department contained in letter No. 4179 dated 12.8.1992 under office order, bearing Memo. No. 3971 dated 31.8.1995, Annexure-10B and according to the counsel for the petitioner once the promotion granted to the petitioner is confirmed by the competent authority, namely the Secretary, Mines & Geology Department, whatever illegalities were there in the initial appointment on the post of clerk stood removed/condoned and the authorities are ill-advised to wreck up the same matter after about 21 years when they issued notice dated 15.9.2004, Annexure-9 to cancel such appointment and passed the impugned order dated 10.2.2005, Annexure-1. 4. In support of the aforesaid submission, learned Counsel for the petitioner has placed reliance on the judgment of the Hon ble Supreme Court in the case of Narender Chadha and Ors. V/s. Union of India and Ors. reported in - , paragraph 14, in the case of Akhilesh Kumar Sinha and Ors. V/s. State of Bihar and Ors. reported in 2002 (1) PLJR 391 , paragraphs 5 and 7 and in the case of Sanjay Rai and Ors. V/s. State of Bihar and Ors. reported in 2003 (1) PLJR 159 . 5. reported in - , paragraph 14, in the case of Akhilesh Kumar Sinha and Ors. V/s. State of Bihar and Ors. reported in 2002 (1) PLJR 391 , paragraphs 5 and 7 and in the case of Sanjay Rai and Ors. V/s. State of Bihar and Ors. reported in 2003 (1) PLJR 159 . 5. Learned Counsel for the Mines Department of the State Government has submitted that the writ petition is fit to be dismissed as petitioner was appointed on the post of clerk without undergoing any selection process and he has rightly been reverted to the post of peon and the reversion has been made after hearing him. In the circumstances, there is no scope for this Court to interfere in the matter. In this connection, he referred to the initial office order No. 1061 dated 5.10.1983, Annexure-2 whereunder the petitioner who was earlier serving as peon was appointed as clerk on ad hoc basis to meet the exigencies of the situation on account of failure of Sri Ram Krishna Gope to join the post with clear instruction that no sooner, Sri Gope joins the post, his appointment as clerk shall automatically stand terminated. Learned Counsel for the Respondents further submitted that the initial appointment being void ab initio, the first time bound promotion granted on the post of clerk and its subsequent confirmation by the Secretary of the Department shall not condone the error made in the initial appointment of the petitioner on the post of clerk and the authorities rightly took action against the petitioner no sooner it transpired that his appointment on the post of clerk was void ab initio. 6. In support of the aforesaid submission, learned Counsel for the Respondents has relied upon the judgment in the case of State of U.P. and Ors. V/s. U.P. State Law Officers Association and Ors. reported in -, paragraphs 17 and 19, in the case of State of M.P. and Anr. V/s. Dharambir reported in - , paragraphs 31 and 32, in the case of Secretary, State of Karnataka and Ors. V/s. Uma Devi and Ors. reported in 2006 (2) PLJR 363 (S.C), in the case of Surendra Prasad Tewari V/s. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Ors. reported in 2006 AIR SCW 4738. 7. V/s. Dharambir reported in - , paragraphs 31 and 32, in the case of Secretary, State of Karnataka and Ors. V/s. Uma Devi and Ors. reported in 2006 (2) PLJR 363 (S.C), in the case of Surendra Prasad Tewari V/s. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Ors. reported in 2006 AIR SCW 4738. 7. Learned Counsel for the Intervener - respondent submitted that the petitioner was appointed as a clerk ignoring the seniority of the Intervener and when the Intervener came to learn about his illegal appointment, he took up the matter with the authorities and then petitioner was noticed and after hearing him reversion order has been passed, as such, this Court should not interfere in the matter as interference by this Court shall jeopardize the interest of the intervener. In the alternative it was further submitted that on account of delay caused in the reversion of the petitioner if the Court wishes to interfere in the matter then at least the interest of the intervener be protected by directing the State to create supernumerary post for the accommodation of the intervener. 8. Perusal of the case law relied on by the counsel for the petitioner will indicate that the judgments have been rendered in the special facts of those cases. In the case of Narender Chadha (Supra), the Hon ble Supreme Court was considering the scope of promotion made under Indian Economic Services Rules, 1961, which authorized the government in consultation with the Commission for reasons to be recorded in writing to relax any of the provisions of the Rules. No such Rule was referred to by the counsel for the petitioner in the instant case, as such, in the opinion of this Court the case of Narender Chadha (Supra) has no similarity to the case of the petitioner. Perusal of the judgment of this Court in the case of Akhilesh Kumar Sinha and Sanjay Rai (Supra) relied on by the counsel for the petitioner would indicate that the applicants of those cases were terminated and they had assailed their termination order and considering the fact that the illegalities in the process of appointment were noticed belatedly, the High Court set aside their termination order. Petitioner of the case at hand has not been terminated from the service and the aforesaid two cases setting aside the termination order have no application to the facts of the present case. 9. The judgment of the Hon ble Supreme Court rendered in the case of State of U.P. and Ors (Supra) relied on by the counsel for the Respondents also has no application to the facts of this case as thereunder the Hon ble Supreme Court was considering the case of the Law Officers, who were removed after working for a long time and in that connection Hon ble Supreme Court having appreciated the relationship between the lawyer and his client noticed the provisions of Chapter V of the Legal Remembrancers Manual and then observed that the Law Officers are appointed/engaged as per the discretion of the State Government and their appointment is purely professional engagement till they last. Petitioner may have been appointed as clerk on ad hoc basis under order dated 5.10.1983, Annexure-2 but thereafter he was granted time bound promotion in the higher scale on provisional basis under Memo. No. 5418 dated 15.10.1993, Annexure-10A with stipulation that in the event at the time of confirmation of the said promotion if it is detected that the promotion was erroneous then he will have to refund the amount paid in lieu of such promotion. Later the said promotion was even confirmed by the Secretary of the Department in the light of the instructions of the Finance Department contained in circular letter No. 4179 dated 12.8.1992, under Memo. No. 3971 dated 31.8.1995, Annexure-10B. It appears the authorities not only failed to notice the illegalities made in the initial appointment of the petitioner at the time of grant of first time bound promotion but also at the time of its confirmation and in the circumstances in the opinion of this Court they should not be allowed to wreck up the same illegalities after about 21 years when the confirmation of the first time bound promotion was made with the approval of the Secretary of the Department and at the time of grant/confirmation the authorities should have examined the profile of the petitioner in detail and having failed to do so at that stage it is highly arbitrary on the part of the State authorities to wreck up the same issue at this belated stage. The case of State of M.P. & another (Supra) relied on by the counsel for the Respondents also has no application to the facts of this case as from paragraph 31 itself, it will appear that the Respondents of the said case had worked on the post in question for quite a long time but it was only in ad hoc capacity. In the present case, petitioners appointment on the post of clerk may be ad hoc/stop gap but after grant of time bound promotion and its confirmation the same stood confirmed and in the circumstances, the reported case has no application to the facts of the present case. The two other case laws relied on by the counsel for the Respondents, namely, the Secretary, State of Karnataka and Ors. (Supra) and Surendra Prasad Tewari (Supra) have also no application to the facts of the present case as perusal of those judgment would indicates that those judgment have been rendered in the case of those employees who desired their regularization. 10. In view of my discussions above, I set aside the impugned reversion order dated 10.2.2005, Annexure-1 as also the show cause notice dated 15.9.2004, Annexure-9 and hold that whatever illegalities were made in the initial appointment of the petitioner on the post of clerk, vide order dated 5.10.1983, Annexure-2 stood condoned no sooner the Secretary of the Department confirmed his first time bound promotion in the light of the instructions of the Finance Department dated 12.8.1992 referred to in the order, bearing Memo. No. 3971 dated 31.8.1995, Annexure-10B. It is further observed that the authorities are at liberty to create supernumerary post to accommodate the intervener. 11. This application is, accordingly, disposed of. No cost.