Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 406 (PAT)

Shailendra Kumar v. State Of Bihar

2007-02-22

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner and the State. 2. Initially the writ application was filed by the petitioner for quashing the report of the Joint Director, Handloom and Resham, Industry Department, Government of Bihar, Patna, (respondent no. 6) whereby the petitioners appointment was found to be invalid and also for quashing letter no. 1110 dated 9.7.2004 whereby the Director approved the report and directed the respondent no. 5 for cancelling petitioners appointment. I.A. No. 6002 of 2005 was filed, since during the pendency of the writ application final order terminating petitioners service was issued on 4.10.2004. Amended prayer of the petitioner is for quashing the order dated 4.10.2004 whereby he has been terminated from his service with immediate effect. Petitioner has also prayed for a direction to the respondents to give all consequential reliefs on account of quashing of the order of termination. 3. Petitioner was initially appointed by General Manager, Industries Centre, Dumka on the post of Cashier-cum-Bill clerk in the pay scale of Rs. 535-765/- on ad hoc basis. Thereafter the appointment of the petitioner was converted into the temporary regular appointment by order dated 25.10.1984. He was transferred from Dumka to Resham Seva Kendra, Muzaffarpur by order dated 31.12.1990, passed by the Director, Industries. The Director, Handloom and Resham, Bihar circulated seniority list of the clerks working under the directorate and the petitioners name was at SI. No. 120 in the seniority list. The Directorate published another seniority list in which also the petitioners name was there. The petitioner in the mean time passed departmental Accounts examination. The Director of Industries Resham Division wrote to the Accountant General for granting monetary benefits to the petitioner with effect from 30.10.1994 on account of petitioners having passed the accounts examination. Everything was going on in the right direction, but in the year 2000 a notice was issued to the petitioner and two other persons that they have been illegally appointed by an authority who was not competent to make appointment. Petitioner submitted his show cause in reply to such notice. An enquiry was also conducted regarding three illegal appointments in which one was of the petitioner and other two appointments were of Bhavesh Kant Jha and Subhash Chandra Yadav. All three persons were appointed by General Manager and not by the Director of Industries. Petitioner submitted his show cause in reply to such notice. An enquiry was also conducted regarding three illegal appointments in which one was of the petitioner and other two appointments were of Bhavesh Kant Jha and Subhash Chandra Yadav. All three persons were appointed by General Manager and not by the Director of Industries. The enquiry report (Annexure-11) indicates that while the appointment of the petitioner and Bhavesh Kumar Jha for similar reason was found to be illegal different consideration has been made in case of Subhash Chandra Yadav, who was also appointed by General Manager, Resham Division in which enquiry was still going on the mean-time in terms of the provisions of Bihar Reorganisation Act, 2000 the petitioner was allocated the cadre of State of Jharkhand. Subsequently by the impugned order, petitioners service has been terminated in spite of the fact that the services of the petitioner has already been transferred to the State of Jharkhand. 4. In the counter affidavit filed by the respondents all statement made by the petitioner has been admitted, but it has been stated that since the General Manager was not competent to make any appointment on Class-Ill posts, petitioners appointment was illegal. There is no reply in the counter affidavit regarding different stand taken by the authorities in case of the appointment of Subhash Chandra Yadav, who was also appointed by the General Manager. There is no whisper in the counter affidavit as to why two sets of consideration were applied while enquiring the legality of appointments of the petitioner as well as Subhash Chandra Yadav. 5. Counsel for the petitioner has submitted that so far the initial appointment of the petitioner made by the General Manager is concerned that was subsequently approved by the Director, which is indicated from subsequent orders passed by the Director. The Director issued an order of transfer of the petitioner from Dumka to Muzaffarpur. Respondent No. 2 also issued the seniority list. He recommended for giving monetary benefit to the petitioner on account of his passing Accounts examination. These orders were passed by the Director knowing that petitioner has been appointed by the General Manager. Subsequently orders passed by Director, amounts to his approval to the appointment made by General Manager. Respondent No. 2 also issued the seniority list. He recommended for giving monetary benefit to the petitioner on account of his passing Accounts examination. These orders were passed by the Director knowing that petitioner has been appointed by the General Manager. Subsequently orders passed by Director, amounts to his approval to the appointment made by General Manager. In the given circumstances there was no reason for termination of petitioners service on the ground that appointment was illegal as it was made by a competent authority. The order of termination was passed, when service of the petitioner was transferred to the State of Jharkhand. At the relevant time there was no reason for conducting enquiry and passing order of termination, ignoring the fact that the petitioners service has been transferred to the State of Jharkhand. 6. Considering different orders passed by respondent no. 2 which indicates his approval to the appointment of petitioner. There was no additional reason for termination of petitioners service specially when Subhash Chandra Yadavs appointment in similar circumstances has been found legal. Accordingly the impugned order (Annexure-15) dated 4.10. 2004 issued by the Director, Handloom, Government of Bihar is quashed, this application is allowed. The respondents are directed to pass an order for giving all consequential benefits to the petitioner for which petitioner is entitled on account of quashing of the impugned order.