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2008 DIGILAW 1116 (PAT)

Raj Kishore Kumar v. State Of Bihar

2008-08-08

BARIN GHOSH, C.M.PRASAD

body2008
Judgment Barin Ghosh and C.M.Prasad JJ. 1. The appellant filed a writ petition, registered as C.W.J.C. No. 8442 of 2001,.inspired by the success of the petitioners in C.W.J.C. No. 6665 of 1998. which was concluded by an order dated 7th October, 1999. As the petitioners in C.W.J.C. No. 6665 of 1998 were initially appointed on daily wage basis, so was the appellant and they after having had worked for sometime were selected by a Selection Committee for being appointed or regularized on the post of Progressive Assistant, a Class- Ill post. Soon thereafter, they were appointed as such by the Regional Directors. 2. While they were working, a show cause was issued to them i.e., to the appellant and the petitioners in the said writ petition, registered as C.W.J.C. No. 6665 of 1998, wherein it was stated that the Regional Directors were not authorized to give the subject appointments. After replies were given to such show causes, petitioners in the said writ petition and the appellant too lost their engagement. Petitioners in the said writ petition then approached this Court and brought on record of this Court that since 18" March, 1980. the power of the Director remained delegated with the Regional Directors and the same was withdrawn with effect from 28th October, 1991 in respect- to Class-IV employees and with effect from 21th February, 1992 in respect to Class-III employees. It was contended by the petitioners in the said writ petition that inasmuch as they were appointed by the Regional Directors prior to withdrawal of the powers of the Director from the Regional Directors, their appointments cannot be said to be illegal from the very inception as had been held out in the show cause. By the said order dated 7th October, 1999, the said contention was accepted and the orders terminating the services of the petitioners in the said writ petition were quashed. 3. The appellant in the present writ petition contended that his case on facts being similar he should also be dealt with in the same manner. The State contended that the post in question was a cadre post and the appellant could only be appointed in such post provided he had been selected by the Staff Selection Commission. 3. The appellant in the present writ petition contended that his case on facts being similar he should also be dealt with in the same manner. The State contended that the post in question was a cadre post and the appellant could only be appointed in such post provided he had been selected by the Staff Selection Commission. The appellant contended that in the.show cause such a contention had not been disclosed and accordingly, the order of termination cannot be supported on thestrength of a contention which had not been taken in the show cause. However, the appellant lost before the Writ Court inasmuch as it was an undisputed fact that the appointment to the said post required a recommendation by the Staff Selection Commission. 4. Before us, the learned counsel for the appellant contended that in the show cause, appellant was only asked to establish the authority of the Regional Director to appoint and in the facts and circumstances of the case, it is an admitted fact that as on the date of appoimment of the appellant. Regional Director was authorized to appoint and as such the matter ought to have been concluded thus and the same having not been concluded in that fashion, we should conclude the matter thus. 5. The show cause said that the Regional Director had no authority to give the appointment in question. The authority does not mean competence to appoint only. The authority to appoint means giving of appointment, which is legally sustainable, in 1991, when the appointment was given, assuming at that time, the Regional Director had competence to appoint, but the question was not whether he was competent to appoint, the question was whether the appointment given by him was a competent appointment or not. The fact remains that at or before the appointment was given there was no policy of the State to regularize any daily wage worker and accordingly, for, the purpose to giving any substantive appointment, the Regional Director was legally bound to adopt the known procedure of inviting applications by putting up advertisement and thereupon to select through the Commission, which in the instant case was admittedly not done. Further more, the appointment of the appellant as a daily wage worker was on the teeth of a decision of the Government taken in 1985 whereby and under all future daily wage appointments had been stopped. Further more, the appointment of the appellant as a daily wage worker was on the teeth of a decision of the Government taken in 1985 whereby and under all future daily wage appointments had been stopped. In such circumstances, the logical conclusion would be that the Regional Director even if he had authority to sign an appointment letter the appointment given to the appellant was not authorized and he was not competent to give that appointment. In those circumstances, we dismiss the appeal.