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2007 DIGILAW 444 (PAT)

Md. Javed Khan v. State Of Bihar

2007-02-28

AFTAB ALAM

body2007
Judgment 1. There are three petitioners in CWJC No. 12160 of 2003 and a single one in CWJC No. 12695 of 2003. All of them seek to challenge identical office orders, dated 14.8.2003 (under different memos in respect of each of them) issued by the Regional Deputy Director of Education, Patna Division, Patna. By the impugned orders issued in pursuance of the decision of the Establishment Committee the services of the four petitioners were terminated with immediate effect on the ground that their appointments were illegal. 2. The material facts on record leave no room for doubt that each of the four petitioner was appointed on the Class III post of Clerk in a thoroughly illegal manner. The appointments of the three, petitioners in CWJC No. 12160 of 2003 were made by identical office orders, dated 22.10.1992 (Annexure 3 series) issued by the Regional Dy. Director of Education, Patna Division, Patna. In the office orders it was stated that the three petitioners, who were not in Government employment, were appointed till further orders as clerks in the office of the Subdivisional Education Officer, Bhabua in light of the letter, dated 26.3.1992 from the Chief Ministers Secretariat and on the basis of the direction of the Dy. Secretary in the Chief Ministers Secretariat. Following their "appointments", petitioners 1 and 2 were transferred to different offices. The services of the three petitioners, alongwith seven others, including the single petitioner in the other case, were regularised by an order, dated 5.6.1995 issued by the Dy, Director, Secondary Education. The petitioners were working when they were given notice, dated 17.2.2003 to show cause why they should not be terminated for their appointments being illegal. On 10.3.2003 the Director, Secondary Education wrote to the Regional Dy. Director of Education intimating him about the direction to terminate the services of five people, including the four petitioners, in the two cases. Apparently no action was taken on his letter and on 17.6.2003 the Director, Secondary Education sent another letter to the Regional Dy. Director stating that no response was received to his earlier letter and asking him to terminate the services of the five people in question without any further delay so that the direction of the Chief Minister should be complied with, failing which the Government would be informed about the role of the Dy. Director himself in that connection. 3. Director stating that no response was received to his earlier letter and asking him to terminate the services of the five people in question without any further delay so that the direction of the Chief Minister should be complied with, failing which the Government would be informed about the role of the Dy. Director himself in that connection. 3. All the four petitioners were then given show cause notices, dated 21.6.2003. The petitioners were given another notice, dated 3.7.2003 asking them to file their reply within a week failing which it would be presumed that they had nothing to say in the matter. The petitioners filed their respective replies to the show cause notices. The matter was considered in the meeting of the Establishment Committee on 13.8.2003 when their respective explanations were also examined. The petitioners replies to the show cause were found unsatisfactory and the decision was taken to terminate their services. Following the decision of the Establishment Committee the Regional Dy. Director of Education issued the impugned orders of termination on 14.8.2003. 4. The case of the single petitioner in CWJC No. 12695 of 2003 is no different. His appointment was first made by office order, dated 12.2.1992 issued by the Regional Dy. Director of Education, Patna Division. In his appointment letter though there is no reference to any direction from the Chief Ministers Secretariat, it appears to be equally illegal. His appointment oh the Class III post of Clerk in the office of the Subdivisional Education Officer, Bhabua was made on a purely temporary basis for a period of three months. The period of appointment was extended by different orders. Then there is a letter from the Regional Dy. Director of Education to the Dist. Education Officer, Rohtas asking as to how the service of the petitioner could be regularised. The Dist. Education Officer gave his reply (27.9.1992) stating that in the office of the Subdivisional Education Officer, Bhabua one post of Clerk was vacant and the petitioner could be regularised against that post. An office order was then issued on 16.10.1992 by the Regional Dy. Director of Education, Patna Division regularising the petitioners service from the date of his appointment. The rest of the facts are identical to the case of the three petitioners in the other case. 5. An office order was then issued on 16.10.1992 by the Regional Dy. Director of Education, Patna Division regularising the petitioners service from the date of his appointment. The rest of the facts are identical to the case of the three petitioners in the other case. 5. From the materials on record, it is evident that all the four petitioners were appointed without any advertisement or following a process of selection from amongst the eligible candidates. In other words, the appointments were made in complete violation of the twin constitutional guarantees of equality and equal opportunity in public employment. In CWJC No. 12695 of 2003 no effort is made to show that the appointment was made following any advertisement or selection etc. But in CWJC No. 12160 of 2003 a feeble attempt is made in that regard. It is stated that for the appointment an advertisement notice, dated 13.6.1992 was put up on the notice board in the office of the Regional Dy. Director of Education, Patna Division, Patna. It is further stated that the petitioners were registered with the local employment exchange. 6. In the counter affidavit filed on behalf of the respondents, it is stated that in the office there was no trace of any advertisement or any notice issued for the appointments in question. Moreover, the plain language of the appointment orders of the three petitioners belies their claim and makes it obvious that the three petitioners were appointed not on the basis of any advertisement or selection but otherwise. 7. Mr. Tej Bahadur Singh, counsel appearing for the petitioner in CWJC No. 12695 of 2003 assailed the termination order on the plea that the decision was taken following the direction of the Director, Secondary Education, that in turn referred to some direction by the Chief Minister himself. Mr. Singh submitted that the decision of termination of the petitioners service was, thus, taken on the dictate of the superior authorities and it was not an independent decision of the Establishment Committee. 8. Having regard to the manner in which the petitioner was appointed, I find no substance in the submission. If an illegal appointment comes to the notice of the Director, Secondary Education or the Chief Minister of the State, I see no reason why they should not ask the concerned authorities to examine the matter and to take proper corrective action, in accordance with the rules. 9. If an illegal appointment comes to the notice of the Director, Secondary Education or the Chief Minister of the State, I see no reason why they should not ask the concerned authorities to examine the matter and to take proper corrective action, in accordance with the rules. 9. Both Mr. Ganesh Pd. Singh, Sr. Advocate appearing for the petitioners in CWJC No. 12160 of 2003 and Mr. Tej Bahadur Singh appearing in CWJC No. 12695 of 2003 submitted that the petitioners were appointed on sanctioned posts and their appointment/regularisation was made by the competent authority. The petitioners had worked for more than ten years. They submitted that the court should, therefore, ask the concerned authorities to consider the petitioners regularisation in service in light of the Supreme Court decision in the case of Secretary, State of Karnataka and Ors. V/s. Uma Devi and Others, 2006 4 SCC 1 Reliance was placed on para 53 of the decision. 10. In my view the submission is quite misconceived because a distinction is made in the opening sentence of the paragraph. That reads as follows: "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Narayanappa and B.N. Nagarajan and referred to in para 15 above....." 11. Paragraph 15 of the decision reads as follows: "15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of. Mysore V/s. S.V. Narayanappa this Court stated that it was misconception to consider that regularisation meant permanence. In R.N. Nanjundappa V/s. T Thimmiah this court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This Court stated : (SCC pp. 416-17, para 26): "Counsel, on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Art. 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." 12. From the facts narrated above, it is evident that the appointments of the petitioners were not only irregular but were completely illegal being in violation of Arts. 14 and 16 of the Constitution. There is, therefore, no question of any regularisation of their services as per the Supreme Court decision in Uma Devi (supra). 13. On hearing counsel for the parties and on going through the materials on record, I find no merit in these writ petitions. These are accordingly dismissed.