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2012 DIGILAW 462 (PAT)

Ashok Kumar Singh v. State Of Bihar

2012-03-15

S.N.HUSSAIN

body2012
ORDER Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging order dated 30.01.2012 passed by the Town Commissioner, Ara Municipal Corporation (hereinafter referred to as the Corporation’ for the sake of brevity) vide his memo no. 227 refusing to accept the joining of the petitioner and rejecting his joining application filed on 23.01.2012 in consequence of order dated 16.01.2012 passed by a Bench of this Court in C.W.J.C. No. 19958 of 2011 and C.W.J.C. No. 20599 of 2011. 3. Learned counsel for the petitioner states that the petitioner had worked for 28 long years on the sanctioned post of Koshpal (Cashier) in the Corporation on the wages sanctioned by the State Government. He further states that his appointment was made by the Appointment Committee after following due process of law on a duly sanctioned and vacant post having requisite qualification for the post and hence in compliance of appointment letter dated 11.03.1983 the petitioner joined the said sanctioned post on 01.04.1983. 4. Learned counsel for the petitioner further states that the petitioner, thereafter, worked regularly for much more than two decades, but all of a sudden on 04.12.2009 the District Magistrate, Ara wrote a letter to the Town Commissioner of the Corporation that the petitioner’s appointment was illegal as it was made without any advertisement by two members of Three Man Appointment Committee and hence his service be terminated and action be taken against the concerned officers. In view of the aforesaid letter of the District Magistrate, the service of the petitioner was terminated on 12.11.2011 vide memo no. 7437. 5. Learned counsel for the petitioner further avers that against the said order he filed C.W.J.C. No. 20599 of 2011, which was heard by a Bench of this Court along with another writ petition bearing C.W.J.C. No. 19958 of 2011 filed by similarly situated employees and vide order dated 16.01.2012 a Bench of this Court disposed of the said writ petitions quashing the impugned orders dated 21.09.2011 and 12.11.2011 after arriving at the following conclusion :- “In view of the aforesaid factual matrix of the case, this Court is of the view that the impugned orders terminating the services of the petitioners could not have been passed without first considering their cases in terms of the decision in Uma Devi’s case (supra) and M.L.Keshari’s case (supra). The impugned orders dated 21.9.2011 and 12.11.2011 are accordingly set aside and the respondents are directed to consider the cases of the petitioners and other similarly situated employees of the Ara Municipal Corporation for regularization, as a one-time measure in terms of the directions given in Uma Devi’s case (supra) as reiterated in M. L. Keshari’s case (supra). For the said purpose, a Three-Member Committee consisting of the District Magistrate, Bhojpur at Ara as its Chairman, the Deputy Development Commissioner, Bhojpur at Ara and the Municipal Commissioner, Ara Municipal Corporation shall be constituted which shall look into the cases of all such employees and after giving opportunity of hearing to the concerned employees, decide the matter within a period of four months from the date of receipt/production of a copy of this order.” 6. Learned counsel for the petitioner further states that after setting side of the order of his termination by the said order, he approached the authorities of the Corporation on 23.01.2012 by way of filing a joining application, but the said application was rejected by the Town Commissioner of the Corporation vide the impugned order dated 30.01.2012 on the basis that the appointment of the petitioner was illegal as per the report of the District Magistrate dated 04.12.2009 and hence he cannot be appointed until the decision of the Three-Member Committee appointed for that purpose on the directions of this Court. Hence learned counsel for the petitioner states that when the order of the petitioner’s termination was set aside, there was no occasion for the authorities to reject his application for joining. 7. On the other hand learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that in compliance of the order of this Court a Three-Member Committee has been constituted by the authorities concerned headed by the District Magistrate, Ara as per the directions of a Bench of this Court vide order dated 16.01.2012 passed in C.W.J.C. No. 20599 of 2011 and the next date in the meeting is fixed on 16.03.2012. He further submits that this Court has granted four months’ time vide order dated 16.01.2012 and hence the period granted for the said Committee to take a decision in the matter of regularization expires on 15.05.2012. He further submits that this Court has granted four months’ time vide order dated 16.01.2012 and hence the period granted for the said Committee to take a decision in the matter of regularization expires on 15.05.2012. Therefore, he submits that until the Three Member Committee takes a decision, there is no occasion for allowing the petitioner to join. 8. Learned counsel for the respondents further avers that as per the order of District Magistrate dated 04.12.2009 petitioner’s appointment was found to be illegal as it was made without advertisement by two Members of the Appointment Committee of the Corporation although the coram of the said Committee was of three Members and hence the service of the petitioner was terminated legally by the impugned order dated 12.11.2011 following the report of the District Magistrate. 9. Learned counsel for the respondents states that earlier in the year 1985 also the petitioner’s service was terminated and he along with others challenged the said termination in C.W.J.C. No. 3897 of 1985, which was dismissed by a Bench of this Court vide order dated 30.10.1987 observing that “if in future there is vacancies in the categories from which the petitioners’ services have been terminated, the petitioners shall be given preference in view of their experience”. 10. Learned counsel for the petitioner seriously controverts the above statement made by learned counsel for the respondents and submits that no such writ petition had been filed by the petitioner nor he was ever terminated in the year 1985. Furthermore, neither the order of petitioner’s earlier termination in the year 1985 has been brought on record nor the respondents have even cared to file a copy of the order of this Court dated 30.10.1987 to support his contention. In the said circumstances, the aforesaid bald statement of the respondents cannot be relied upon. 11. From the averments made by learned counsel for the parties and the materials on record, it is quite apparent that a Bench of this Court had considered the claim of the parties exhaustively in C.W.J.C. No. 19958 of 2011 and C.W.J.C. No. 20599 of 2011 and disposed of the same vide order dated 16.01.2012 after considering in detail the decisions of the Apex Court in case of Secretary, State of Karnataka & ors. vrs. vrs. Uma Devi (3), reported in (2006) 4 SCC 1 as well as in case of M.L. Keshari and others, reported in (2010) 9 S.C.C. 247 and after finding that right of such persons for regularization has to be considered as one time measure for all the employees, who have put in more than ten years of service continuously and fulfilled the conditions as laid down in Uma Devi’s case (supra) and elaborated in M.L. Keshari’s case (supra). It was also found that no such exercise has been carried out in Ara Municipal Corporation with respect to daily wage/ad hoc/casual employees and, in any case, not so far the petitioner was concerned. 12. So far questions of illegal or irregular appointments are concerned, the Apex Court in paragraph no.7 of its decision in M.L. Keshari’s case (supra) had found that there was an exception to the general principles against “regularization” enunciated in Uma Devi’s case (supra), if the following conditions are fulfilled :--- : (i) The employees concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 13. In the aforesaid facts and circumstances, the petitioner having requisite qualification and having been appointed by Two out of Three Members of the Appointment Committee on a sanctioned post and had continued for more than two and a half decades, it cannot be held to be an illegal appointment even if the authorities had not undergone the prescribed process and it can only be termed as irregular appointment as per the said decisions of the Apex Court. 14. 14. In the said circumstances and considering all the points a Bench of this Court vide its order dated 16.01.2012 disposing of C.W.J.C. No. 19958 of 2011 and C.W.J.C. No. 20599 of 2011 had rightly set aside the order of petitioner’s termination and had directed the authorities to form a Three Member Committee for taking steps for regularization as per the aforesaid decisions of the Apex Court. 15. Since the orders of termination dated 21.09.2011 and 12.11.2011 were passed on the report of the District Magistrate dated 04.12.2009, setting aside of the said termination orders by this Court on 16.01.2012 clearly meant that the report of the District Magistrate dated 04.12.2009 was not legal and proper and no reliance can be placed on the said report for taking any step in future. Hence the authorities were not justified in rejecting the joining application of the petitioner merely on the ground of report of the District Magistrate dated 04.12.2009 as well as on the ground of pendency of the matter before the Three Member Committee. 16. So far the Three Member Committee appointed on the directions of the High Court is concerned, it has to consider the question of regularization of the petitioner and similarly situated other persons in the light of the aforesaid decisions of the Apex Court in case of Uma Devi (supra) as well as in case of M.L. Keshari (supra) and the pendency of the matter before that Committee cannot deprive the petitioner of the fruit of the decision of this Court dated 16.01.2012. Once the order of termination of the petitioner was set aside by a Bench of this Court and the said order of this Court having not been challenged before any higher court, it had attained finality and the authorities were duty bound to allow the joining application of the petitioner immediately. 17. In the said circumstances, this writ petition is allowed, impugned order of the authority dated 30.01.2012 rejecting the joining application of the petitioner is hereby quashed and the Town Commissioner of Ara Municipal Corporation is hereby directed to accept the said joining application of the petitioner and allow him to join the post on which he was working prior to his termination dated 12.11.2011 immediately without any further delay. 18. 18. The said joining of the petitioner will be operative with effect from the date of his application dated 23.01.2012 and he shall be deemed to have continued on the said post irrespective of the order of his termination, which has already been set aside by this Court.