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2008 DIGILAW 588 (PAT)

Satyendra Narayan Singh v. State Of Bihar

2008-04-11

SHEEMA ALI KHAN

body2008
Judgment 1. This writ petition has come up for hearing after an order of remand passed in L.P.A. No. 1237 of 1999 and analogous cases. 2. This particular case arises out of L.P.A. No. 326 of 2005. This Division Bench while remanding this matter noticed that while allowing the writ petition the learned Single Judge had not given details regarding the facts of the case and allowed the case on the basis of the order passed in CWJC No. 5003 of 1999. 3. The petitioner is aggrieved by order contained in memo no. 772, dated 4.7.2000 passed by respondent Deputy Director, Secondary Education, Bihar whereby the services of the petitioner has been terminated. 4. The petitioner alongwith one Surendra Singh had earlier filed a writ petition in this court vide CWJC No. 338 of 1999 and CWJC No. 403 of 1999 respectively. They had challenged the order, dated 30.11.1989 issued by the Director, Secondary Education wherein a decision was taken that the services of fifty six persons including the petitioner were to be terminated after affording them an opportunity of hearing. The petitioners in the writ petition had contended that their appointment was legal and there was no violation of procedures for appointment, it was also submitted that the petitioners had not been issued a show cause before the order of termination was issued. This court while disposing of the aforesaid writ petitions on 8.3.1999 quashed the order, dated 30.11.1998 and directed that a show cause should be issued to the petitioners before a decision is taken terminating their services. The petitioners after the orders of the court filed a representation before the Regional Deputy Director of Education and also personally appeared before the Regional Deputy Director of Education, Saran Division, Chapra but he could not get any information or report about the orders passed on his representation until 29.6.2000 and in fact the petitioner alleges that the order was not communicated to him till the 1st week of July, 2000. 5. The impugned order at Annexure-15, on one hand, discloses that the records are not available in the office and, on the other hand, gives details regarding the anomalies in making appointment as it has been pointed out that roster was not considered by the Establishment Committee. It appears that the order has been passed without considering the show cause and the documents filed by the petitioner. It appears that the order has been passed without considering the show cause and the documents filed by the petitioner. In fact it appears that the reasons which are required to declare an appointment to be illegal have all been mentioned in the impugned order. 6. At the outset 1 would like to refer to the stand taken in Annexure-15 saying that the documents were not available in the office which appears to be contrary to the stand taken in the counter affidavit wherein at para 7 it has been stated that "the deponent further states and submits that the statement made by the petitioner in his show cause and during the course of hearing and the materials available on the record it was found that the above named procedure for appointment was not followed......" It is further stated that an enquiry was conducted by two Regional Deputy Directors of Education regarding the appointments made. It, therefore, appears that the statements made in para 15 that the records were not available, and prima facie seems to be false. 7. I may point out here that no separate counter affidavit has been filed in this writ petitioner. However, it has been submitted on behalf of the State that the counter affidavit filed in CWJC No. 6609 of 2000 may be treated to be a counter affidavit filed in this case. It appears that the petitioner has filed a rejoinder to the aforesaid counter affidavit filed on behalf of the State in CWJC No. 6609 of 2000. 8. Nevertheless this court has to consider whether the petitioner has been appointed by following the procedures laid down for making appointment of ministerial staff in Education Department. For this purpose, the State Government has framed Rules under Article 309 of the Constitution on 13.8.1974 which deals with appointment, promotion and the transfer of ministerial staff of Education Department. For each Division a Divisional Level Committee has been constituted which is headed by the Regional Deputy Director of Education of the said Division. The petitioner comes within Tirhut Division. 9. The petitioner made an application for his appointment in response to an advertisement issued in the daily newspaper Aaj by letter no. 51, dated 5.7.1989. The petitioner was asked to appear for typing test on 12.7.1989. The petitioner comes within Tirhut Division. 9. The petitioner made an application for his appointment in response to an advertisement issued in the daily newspaper Aaj by letter no. 51, dated 5.7.1989. The petitioner was asked to appear for typing test on 12.7.1989. After successfully passing the typing test, the petitioner faced the interview and finally he was appointed by the Regional Deputy Director of Education on ad hoc basis. The Establishment Committee approved the petitioners appointment on 3.3.1992. Later, by letter no. 112, dated 20.7.1992 the appointments were cancelled. The order of cancellation was set aside by letter no. 1479, dated 18.12.1993 by the Director, Secondary Education, Bihar a copy of which is at Annexure-4. Accordingly, the petitioner rejoined his post and was receiving his salary. 10. The District Magistrate, Siwan vide letter no. 318, dated 23.6.1996 issued a letter to the Director, Secondary Education asking for a report regarding the appointments made by the Regional Deputy Director of Education, Saran Division. The matter was brought to the notice of the Director regarding the enquiry made by the District Magistrate as well as the facts relating to petitioners appointment. Thereafter, the District Magistrate passed an order contained in Annexure-10 in compliance with the orders passed in CWJC Nos. 7863 of 1995 and 1480 of 1996 and lifted the ban that he had earlier imposed by letter no. 2649, dated 27.8.1995 and directed the Treasury Officer, Siwan to pay the salary to such employees including the petitioner. Thereafter, letter, dated 30.11.1998 (Annexure-11) was issued by the Director, Secondary Education in which it was stated that fifty six persons including the petitioner were illegally appointed which led to the filing of CWJC No. 338/1999 and the consequential orders. 11. The main contention raised on behalf of the petitioner is that his appointment was not illegal or irregular as he had applied after an advertisement which was published in the daily newspaper. It is further submitted that the Education Department provides the procedure for appointment which is being followed till date. It is further submitted that the petitioner possess the required requisite qualifications and he passed and qualified in the typing test before the appointments were made. Therefore, it cannot be alleged that the petitioners appointment was through back door entry. 12. It is further submitted that the Education Department provides the procedure for appointment which is being followed till date. It is further submitted that the petitioner possess the required requisite qualifications and he passed and qualified in the typing test before the appointments were made. Therefore, it cannot be alleged that the petitioners appointment was through back door entry. 12. The stand taken by the State in its counter affidavit is that the records relating to asking the candidates to appear for an interview and completing the formalities relating to preparation of panel by adopting reservation policy etc. was not available in the office of the respondents and as such the respondents had denied all the facts aforesaid. 13. It is odd that such a stand should be taken in view of the statements made in paragraph 3 of the counter affidavit filed on 18.9.2000 wherein it has been stated that the deponent further craves leave of this court to produce all the relevant documents specifically mentioned in the counter affidavit if and when required by this court. The deponent has passed an order terminating the services and snatching the livelihood of the petitioner alongwith others and has not even thought it proper to bring on record the alleged enquiry report conducted by some senior officers of the department which allegedly shows that the circular of the Personnel & Administrative Reforms Department, dated 3.12.1980 was not followed in asmuch as the reservation policy was not implemented. It is further said that a committee consisting of senior officers of the department had to approve both the merit list and to see whether roster was followed and as these two procedures were not followed, the appointments have been held to be illegal. It has further been alleged that the selection process has not been followed. 14. A rejoinder has been filed on behalf of the petitioner in which it is stated that at the time of swearing of the affidavit the deponent had been transferred and relieved from the post on 16.3.2001 whereas the counter affidavit was signed on 18.9.2000 and as such the petitioner alleges that the deponent did not have access to the records to be placed before the Director, Secondary Education who has passed the impugned order. It is also stated that the petitioner was appointed by the Regional Deputy Director of Education and the Divisional Level Committee approved the appointment in accordance with the rules framed for appointment of ministerial staff in the Education Department. It has further been submitted that the Regional Deputy Director of Education had addressed a letter to the Director of Education, Bihar in connection with the order terminating the services of Surendra Singh (the subject matter of CWJC No. 6609/2000) in which the deponent of the counter affidavit had specifically informed the Director that the records relating to appointment of the petitioner were not available in the office of the deponent and as such the deponent could not explain the factual position and the manner of appointment. 15. In other words the stand of the respondents seems to be that the appointment is illegal but at the same time it has not been alleged that the letters of appointment are fraudulently obtained or that no such appointment was ever made. 16. I find from the facts stated and the tenor of the counter affidavit that in fact the State has taken both the stands. On one hand the case of the State is that merit list was not approved by the Director, Secondary Education and reservation policy was not followed and, on the other hand, it is also alleged that the records are not available and as such proper comments cannot be given with respect to the manner of appointment. Such stand of the State cannot be appreciated by this court. 17. However, considering the reasons given in the impugned order it is quite clear that the termination order has been based on two considerations; first that the merit list was not approved by the Director and the other that the reservation policy was not followed. 18. I find that even if the merit list was not approved by the Director, it did receive the Directors tacit approval by letter no. 112, dated 20.7.1992 by which he cancelled the order terminating the services of the petitioner and others and also passed an order for payment of their salary. 19. 18. I find that even if the merit list was not approved by the Director, it did receive the Directors tacit approval by letter no. 112, dated 20.7.1992 by which he cancelled the order terminating the services of the petitioner and others and also passed an order for payment of their salary. 19. As far as the stand of the State that reservation policy was not followed, it appears a little vague as there are foundational facts not stated in the counter affidavit to show that the appointment of the petitioner and others was made in excess of the quota. I find that the petitioner has been facing extreme hardship since 1992 when he alongwith others were terminated for the first time and since then repeated efforts have been made to terminate the services of the petitioner and others who are similarly situate like the petitioner although the procedure for appointment has been followed. It is not a case whereby a complete go by has been given to the standard procedures known for making appointment and as such it cannot be said that the petitioner was illegally or irregularly appointed. 20. In the circumstances I have no option but to quash the impugned order issued vide memo no. 772, dated 4.7.2000 (Annexure-15). 21. In the result, this writ petition is allowed.