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Jharkhand High Court · body

2012 DIGILAW 1161 (JHR)

Hriday Narayan Bhandari v. State of Bihar

2012-08-06

ALOK SINGH

body2012
JUDGMENT Alok Singh, J.-- Petitioners, by way of present petition filed under Article 226 of the Constitution of India, are assailing the order dated 10.05.2000 passed by Chief Director, Information & Public Relations Department, Government of Bihar, (Annexure8 to the writ petition), whereby representation of he petitioners against the cancellation of their appointment was rejected, and are also seeking the writ of Mandamus commanding the respondents to consider the case of the petitioners for absorbing them on the post of 'Driver' in the Department of Information and Public Relations. 2. The facts, inter alia, giving rise to present petition are that petitioner No. 1 was appointed on 27.03.1991 while petitioner No. 2 was appointed on 12.12.1990 on purely temporary basis as drivers with the stipulation that their services may be terminated without any prior notice, vide appointment letters, Annexure Nos.1 and 1/1 respectively. Vide order dated 04.04.1997 (Annexure5) appointment of the petitioners were cancelled having observed that appointments were granted without following the procedure provided for the appointment and Joint Director was not competent to grant appointment. Feeling aggrieved, petitioners have preferred writ petition, C.W.J.C. No. 1877 of 1997 (R), before the Ranchi Bench of Patna High Court. Writ petition was dismissed, vide order dated 02.11.1998. An L.P.A. No. 3 of 1999(R) was filed against the judgment of the learned single Judge. However, L.P.A. No. 3 of 1999 (R) was withdrawn by petitionersappellants with liberty to file representation before the concerned authorities for redressal of their grievances. Thereafter, petitioners have made representation before the Respondent No. 2The Chief Director, Information & Public Relations Department, Government of Bihar, and representation of the petitioners was rejected, vide impugned order dated 10.05.2000. In the impugned order, Respondent No. 2 has observed that Joint Director, Public Relations Department has given appointment to the petitioners without following the procedure and Joint Director, Public Relations Department, was not the competent officer to issue the appointment letter. Feeling aggrieved, petitioners have approached this Court by way of this writ petition. 3. However, during the pendency of present writ petition, vide order dated 09.05.2001, Annexure9, petitioners along with Birsa Munda (not party to the petition) were given fresh appointment on purely temporary basis, allegedly in compliance of the order dated 04.12.1999 passed in L.P.A. No. 3 of 1999. 4. I have heard learned counsel for the parties and have carefully perused the record. 5. Mr. 4. I have heard learned counsel for the parties and have carefully perused the record. 5. Mr. V. Shivnath, learned senior Advocate, has vehemently argued that since petitioners were given appointment, vide order dated 09.05.2001 (Annexure9 filed along with supplementary affidavit), during the pendency of the present petition, therefore, respondents have agreed not to give effect to the earlier order dated 04.04.1997 as well as order dated 10.05.2000. He has further contended that since petitioners are working right from 1990 and 1991 respectively, therefore, they have completed 10 years of service, hence, are entitled for regularisation. 6. Hon'ble Apex Court in the case of Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Ors., reported in 2006 (2) SCC 482 , has observed as under: “Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words employment or appointment cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.” 7. Hon'ble Apex Court in the case of Dr. D.C. Wadhwa & Ors. Vs. State of Bihar & Ors. Hon'ble Apex Court in the case of Dr. D.C. Wadhwa & Ors. Vs. State of Bihar & Ors. reported in 1987 (1) SCC 378 has observed as under : “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.” 8. Hon'ble Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in (2006) 4 SCC 1 , in paragraph No. 47 has observed as under : “When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The state cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 9. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The state cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 9. Thus, law is now well settled that if employment is provided to some of the employees on pick and choose basis without following the principle of right to equality of opportunity, such employment shall be in violation of Article 14 and 16 of the Constitution of India and employees so appointed shall have absolutely no right, nor shall have any reasonable expectation for regularisation. 10. Undisputedly, petitioners' appointment was cancelled, vide order dated 04.04.1997. Order dated 04.04.1997 was challenged before this Court in C.W.J.C. No. 1877 of 1997 (R), which was dismissed, vide order dated 02.11.1998. An L.P.A. No. 3 of 1999 (R) arising therefrom, was also dismissed as withdrawn. Order of L.P.A. Bench dated 04.12.1999, nowhere reads that petitioners shall be given temporary appointment afresh. In fact, after the dismissal of the writ petition and L.P.A. No. 3 of 1999, order dated 04.04.1997, cancelling appointment of the petitioners, has attained finality. Moreover, representation filed by the petitioners was also dismissed, vide order dated 10.05.2000, which is impugned in the present writ petition. This Court fails to understand under what circumstances, during the pendency of the present petition, a fresh temporary appointments were given to the petitioners as well as to one Shri Birsa Munda, vide order dated 09.05.2001. Order dated 09.05.2001 reads that petitioners and Birsa Munda are being appointed temporarily as daily wagers drivers, in the light of the judgments passed by this Court in C.W.J.C. No. 3381 of 2000 (R) and L.P.A. No. 3 of 1999 (R). While in fact, in C.W.J.C. No. 3381 of 2000 (R) or in L.P.A. No. 3 of 1999 (R), there was no direction to consider the case of the petitioners for fresh appointment as daily wager. Consequently, I find that Annexure9 dated 09.05.2001, is totally without jurisdiction. 11. In the considered opinion of this Court, role of Secretary, who has issued fresh appointment letter dated 09.05.2001 must be enquired into. 12. At this state, Mr. V. Shivnath, Sr. Consequently, I find that Annexure9 dated 09.05.2001, is totally without jurisdiction. 11. In the considered opinion of this Court, role of Secretary, who has issued fresh appointment letter dated 09.05.2001 must be enquired into. 12. At this state, Mr. V. Shivnath, Sr. Advocate, appearing for the petitioners has argued that order dated 09.05.2001 is not under challenge, therefore, no adverse comments against the order dated 09.05.2001 would be desirable. 13. I am not inclined to accept this argument for the simple reason that while exercising jurisdiction Article 226 of the Constitution of India, if some proceeding or orders per se illegal, without jurisdiction and in gross violation of the Constitution of India are noticed by this Court, which otherwise have direct bearing in the case in hand, this Court cannot keep its eyes closed to permit such illegality to continue. Settled principle of law that those who come by the back door have to go by the same door, is fully applicable in the present case. 14. Therefore, order dated 09.05.2001 cannot stand in the scrutiny of law, therefore, hereby quashed. 15. In the firm opinion of this Court, petitioners are not entitled for any relief sought. 16. As such, Present petition is dismissed with exemplary cost of Rs. 20,000/to be paid in favour of High Court Legal Aid Committee. Petition dismissed.