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2011 DIGILAW 1458 (PAT)

MAHANTH YADAV v. STATE OF BIHAR

2011-07-15

AHSANUDDIN AMANULLAH, T.MEENA KUMARI

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JUDGMENT : (Per: HONOURABLE Mr. JUSTICE AHSANUDDIN AMANULLAH) Heard Mr. Tej Bahadur Singh, learned senior counsel for the appellant and learned senior counsel for the State. 2. The present Letters Patent Appeal has been filed against the ORDER :dated 27.2.2009 passed in C.W.J.C. No. 2681 of 2009 (Mahanth Yadav Versus The State of Bihar & Others). The grievance of the petitioner in the writ petition was that his service had been terminated by ORDER :dated 5.12.2008 on the ground that his appointment was unsustainable in the eyes of law. The brief facts of the case are that though a show cause was issued to him pursuant to which he also filed his reply but without considering the case the three men committee came to a finding that the appointment of the petitioner was illegal from the very beginning since there was no advertisement and there was no following of any roster point. It appears from the pleadings that show cause was issued to two persons including the petitioner. Against one of them it had also been alleged that his very letter of appointment was doubtful. The learned Single Judge after hearing the parties was of the opinion that since there was a case of forgery and thus this Court would not interfere since the finding of forgery had to be agitated before a competent Civil Court. In that view of the matter, the writ petition came to be dismissed which gave rise to the present Appeal. 3. From the records, it is clear that there was no allegation of any forgery being committed in the appointment relating to the petitioner and the show cause also indicates that with regard to the petitioner there was no allegation of any forgery and he was regularized on existing sanctioned post having the qualification for the same. 4. Learned senior counsel for the appellant has taken us to the appointment letter of the appellant, the show cause as well as his reply. From the same he submits that there was absolutely not even a whisper of any forgery committed in the appointment of the appellant. We find substance in the submission made by leaned senior counsel and to that extent the finding of the learned Single Judge appears to be misplaced. From the same he submits that there was absolutely not even a whisper of any forgery committed in the appointment of the appellant. We find substance in the submission made by leaned senior counsel and to that extent the finding of the learned Single Judge appears to be misplaced. He further submits that the Supreme Court in a JUDGMENT : reported in the case of State of Karnataka and Others Versus M.L. Kesari & Others reported in (2010) 9 SCC 247 has held that such appointment which even though has not been made from the open market, but the person has been requisite qualification and the posts are also available, can be at best categorised irregular and not illegal. The said JUDGMENT : also takes note of the JUDGMENT : passed in the case of Secretary, State of Karnataka Versus Uma Devi (3) reported in (2006) 4 SCC 1 which is a JUDGMENT : of the Constitution Bench of the Hon’ble Apex Court and deals with such types of irregular and illegal appointments. He submits that even on the touchstone of the ratio laid down in the above two JUDGMENT :s of the Hon’ble Apex Court, the irregular appointments have been protected to the extent that they being in service for over 10 years were entitled as a special case to be considered for regularisation and they have also been distinguished from illegal appointments which have been declared to be void ab initio. Since the case of the appellant comes under the category of irregular, we are inclined to interfere in the matter. Accordingly the ORDER :of termination dated 5.12.2008 is hereby set aside. The petitioner shall be entitled for all consequential benefits. 5. The ORDER :of the learned Single Judge is set aside and the Appeal stands allowed to the extent indicated above.