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2011 DIGILAW 2049 (PAT)

Mukesh Sharma @ Baban v. State of Bihar

2011-09-23

AJAY KUMAR TRIPATHI

body2011
ORDER Heard learned counsel for the petitioners and learned counsel for the State. 2. There are three petitioners before this Court. They challenge the decision of the respondent authority to terminate their service from the post of constable. The orders are annexures 13, 14 and 15. All the orders are dated 14.3.2005. Reasons indicated therein are identical in the sense that it has been alleged against the petitioners that their appointment was not in accordance with the laid down procedure provided in the Bihar Police Manual. 3. Submission of learned counsel representing the petitioners is that the orders of termination have been passed without any application of mind on a mistaken understanding of fact and by clubbing the cases of these petitioners with those of such appointees who were appointees of the former Director General of Police namely, S.K. Sexena which become rather controversial later. 4. Cases of these petitioners are that the petitioners came to be appointed between 11th July 1988 to 15th July, 1988 on the basis of the orders issued from the headquarters, in the circumstances that these petitioners were victim of extremists’ violence. Certain family members lost their lives when their houses were attacked which led to institution of a criminal case which was registered as Ghosi P.S. Case No. 121 of 1988. The State authority taking into consideration the above fact coupled with courage shown, the State as a measure of sending a strong signal to the extremists decided to appoint these petitioners on the post of a constable. 5. It is widely known that the period in question when the incident happened the district of Jehanabad was a hot bed of extremist activities and many a persons had suffered at the hands of extremists’ belonging to outlawed groups. Appointment of these petitioners therefore was in special circumstance and based on a conscious decision taken at the highest level of the State. After their appointments in the year 1988 they have continued to work till the order of termination came to be passed on 14.3.2005 i.e. almost 17 years. 6. The Court can take judicial notice of the fact that large scale of appointments had been made by one Mr. S.K. Sexena who happened to be a Director General of Police in the late nineties if not early twenties. After retirement of Mr. 6. The Court can take judicial notice of the fact that large scale of appointments had been made by one Mr. S.K. Sexena who happened to be a Director General of Police in the late nineties if not early twenties. After retirement of Mr. Sexena the State received inputs in the manner in which the appointments came to be made by him and a decision was taken to identify such persons who came to be appointed by him and to cull out such persons from service and terminate them. 7. Such terminations generated litigations which travelled to the High Court. Some of those writs were dismissed in the background that such appointments have been made by Mr. Sexena without following any laid down procedure. 8. One glaring fact which emerges from the pleadings and the materials on record is that none of these petitioners were appointees of Mr. Sexena. They had been appointed in a separate set of facts which has already been noticed above in the earlier part of the order. Clubbing the case of these petitioners with that of Mr. Sexena appointees, is a clear indication of non-application of mind on behalf of the respondents. Unequals have been treated as equals and same consequence has visited them even though their entry into service did not have a similar or identical background. This fact has not been denied by the State in the counter affidavit or could not be denied because time frame when these petitioners were appointed and the time frame when Mr. Sexena made the so called illegal appointments have no co-relation and are far distant in time frame. 9. The next limb of argument on behalf of the State is that if there is procedure laid down in the Bihar Police Manual for appointment on the post of constable it has to be followed and made in accordance with the said prescribed procedure. Non adherence to the same, the State has does power to terminate such illegal appointments. Since the procedure was not followed even in the case of present petitioners their removal does not suffer from any vice. 10. The procedure prescribed in the Police Manual is the procedure which has to be followed for general recruitment. Non adherence to the same, the State has does power to terminate such illegal appointments. Since the procedure was not followed even in the case of present petitioners their removal does not suffer from any vice. 10. The procedure prescribed in the Police Manual is the procedure which has to be followed for general recruitment. But if in exceptional circumstances the government decided to relax those rules and make appointment of certain persons whose kith and kin were killed by the extremists and as a matter of measure of a confidence building their case will be dealt with on same parameters and yardstick. Further it is not open to the State to challenge its own decision unless it is a case of fraud or machination of subordinates. Appointment of these petitioners was not only as a confidence building measure but also to compensate them and strengthen them. All these aspects emerge even from the narration made the impugned order. 11. In fact in case of petitioner no.3 her husband was brutally murdered by the extremist and that was the circumstance she was identified for being given benefit of appointment. 12. In yet another similar matter which was the case of Md. Manzoor Alam Vs. the State of Bihar (CWJC No. 12005 of 2006) which was decided on 26.2.2007. Learned Single Judge took note of similar circumstance and held that the power so exercised for removal was per se smacked of arbitrariness and non-application of mind to the issue. Learned Single Judge in the order, a copy of which is at annexure-18, held that exemption or dilution of the rules in an exceptional circumstance and it is not a case that that the State does not have power to relax the rule in such compelling circumstance to meet the hardship of the kind created in a situation of the kind. 13. Since in a similar matter learned Single Judge in the case of Md. Manzoor Alam ordered for reinstatement of the petitioner within a month but with direction that he would not be entitled for salary for the period when he had been terminated till the period of reinstatement, this Court also passes a similar order giving a direction upon the respondents after quashing annexures 13, 14 and 15 that these petitioners shall be reinstated back to their duties within a month. They shall not claim salary for the period of termination till the date of their reinstatement. However it shall not treated as a break in their service. These periods shall be included as qualifying service for pension and other benefits. 14. Writ petition is allowed for the reasons indicated above.