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2014 DIGILAW 1044 (PAT)

Sudhir Kumar Singh v. State of Bihar

2014-10-09

BIRENDRA PRASAD VERMA

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Order The petitioner has filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of the order contained in Memo No. 560 dated 01.06.1998 (Annexure-1 to the writ petition) passed by respondent No. 3, whereby and whereunder services of about 25 Class III & IV employees including that of the petitioner were terminated on the ground that their initial appointments itself were illegal and were made by an officer, who was not legally authorized to make such appointments. The petitioner has further prayed for a direction to the respondents for his re-instatement in service, or alternatively, for issuance of a direction to the respondents for regularization of his service, after setting aside the decision of the Inquiry Committee dated 28.12.2010 communicated vide letter dated 19.05.2011 (Annexure-13), whereby the State authorities have refused to take back the petitioner in service, as his initial appointment itself was illegal. 2. Shorn of unnecessary details, indisputably, the petitioner was appointed on the post of Chainman, a Class-IV post, by an office order dated 09.02.1985 purely on provisional basis only for a period of three months by the Rehabilitation Officer, Medium Irrigation Project, Ranchi vide Annexure-2 to the writ petition. As per the case of the petitioner, after joining the aforesaid post of Chainman, his service was extended from time to time by the competent authority and after about 7 years, services of altogether 16 employees including that of the petitioner were terminated by an order contained in Memo No. 2043 dated 06.07.1992 issued by the respondent no. 3 vide Annexure-4 to the writ petition on the ground that their appointments were illegal and irregular. Validity of the aforesaid order dated 06.07.1992 was challenged before this Court in C.W.J.C. No. 5871 of 1992, which was finally disposed of by an order dated 23.12.1992 (Annexure-5 to the writ petition), whereby respondent no. 3 was directed to issue a proper show cause notice to the petitioner within a period of three weeks and pass a fresh order after giving an opportunity of hearing to the concerned employees including the petitioner. Till fresh decision by the respondent no.3, the order dated 06.07.1992 (Annexure-4) was directed to be kept in abeyance. 3. 3 was directed to issue a proper show cause notice to the petitioner within a period of three weeks and pass a fresh order after giving an opportunity of hearing to the concerned employees including the petitioner. Till fresh decision by the respondent no.3, the order dated 06.07.1992 (Annexure-4) was directed to be kept in abeyance. 3. In the light of the aforesaid order and direction dated 23.12.1992 (Annexure-5 to the writ petition), fresh show cause notice was issued to the petitioner, besides others, and after considering the entire materials, the impugned order dated 1st June, 1998 (Annexure-1 to the writ petition) was passed by the respondent no. 3, declaring the appointment of the petitioner, besides others, to be illegal and having been made by an officer, who was not authorised to make such appointment. Accordingly, his service, besides others, was terminated with immediate effect. 4. It is not under dispute that the petitioner, besides 11 others, being aggrieved by the impugned order of termination dated 01.06.1998 (Annexure-1), filed C.W.J.C. No. 5964 of 1998 before this Court. The aforesaid C.W.J.C. No. 5964 of 1998 was heard along with C.W.J.C. No. 5692 of 1998 and both the writ petitions were allowed by a common judgment and order dated 14th October, 1999 (Annexure-8 to the writ petition) by a learned Single Judge of this Court. By the aforesaid order dated 14th October, 1999, learned Single Judge of this Court had set aside the impugned order of termination dated 01.06.1998 (Annexure-1). The respondent State of Bihar and its functionaries, being aggrieved by the aforesaid judgment and order dated 14th October, 1999 passed by a learned Single Judge of this Court, preferred L.P.A. No. 1505 of 1999. The aforesaid L.P.A. was heard along with L.P.A. No. 1221 of 1999 and its other analogous appeals. All the aforesaid L.P.As. were allowed by a Division Bench of this Court by the judgment and order dated 4th March 2008 (Annexure-9 to the writ petition) and order passed by the learned Single Judge was reversed and the impugned order of termination dated 01.06.1998 (Annexure-1) passed by the respondent no.3 was upheld. 5. All the aforesaid L.P.As. were allowed by a Division Bench of this Court by the judgment and order dated 4th March 2008 (Annexure-9 to the writ petition) and order passed by the learned Single Judge was reversed and the impugned order of termination dated 01.06.1998 (Annexure-1) passed by the respondent no.3 was upheld. 5. The present writ petitioner, besides others, being aggrieved by the aforesaid judgment and order dated 4th March 2008 (Annexure-9) passed by a Division Bench of this Court, filed S.L.P. (Civil) No. 12521 of 2008, which was finally dismissed by the order dated 19.09.2008 by the Hon’ble Apex Court. However, the writ petitioner has tried to mislead this Court by making a wrong and misleading statement in paragraph 14 of the writ petition that the aforesaid S.L.P. was dismissed by the Hon’ble Apex Court due to non-prosecution, which is not a fact. The aforesaid S.L.P. was dismissed on merit after hearing the parties. 6. In view of the dismissal of the aforesaid S.L.P. filed by the petitioner, besides others, the matter ought to have rested there, but in view of some other orders passed by a learned Single Judge of the Jharkhand High Court, the petitioner claims to have filed his fresh representation before the State authorities for his re-instatement in service, but a committee constituted for the said purpose, once again rejected his claim vide resolution dated 28.12.2010 on the ground that his initial appointment itself was illegal and was made by an Officer, who was not legally empowered to make such appointment on the said post of Chainman. The aforesaid order of rejection was communicated to the petitioner by letter dated 19.05.2011 under the signature of respondent no. 3 vide Annexure-13 to the writ petition. Hence, this is, though most unwanted, a third round of litigation before this Court at the behest of the petitioner. 7. The aforesaid order of rejection was communicated to the petitioner by letter dated 19.05.2011 under the signature of respondent no. 3 vide Annexure-13 to the writ petition. Hence, this is, though most unwanted, a third round of litigation before this Court at the behest of the petitioner. 7. Learned Senior counsel, appearing on behalf of the petitioner, submitted that though the service of the petitioner was terminated by impugned order dated 01.06.1998 (Annexure-1) and challenge to that order by the writ petitioner was negatived by a Division Bench of this Court as also by the Hon’ble Apex Court, as referred to above, but, in view of certain other orders passed by a learned Single Judge of Jharkhand High Court, which were affirmed by the Hon’ble Apex Court, the case of the petitioner is required to be re-considered for his regularization and he is entitled to be re-instated in service. 8. A counter- affidavit has been filed on behalf of the respondent no.3 wherein it has been reiterated that initial appointment of the writ petitioner on the post of Chainman by order dated 09.02.1985 (Annexure-2 to the writ petition) was made only for a period of three months by the then Rehabilitation Officer, Medium Irrigation Project, Ranchi, who was not competent authority for making such appointment. It has further been pleaded that in view of the aforesaid illegal appointment and in view of the fact that the due procedure for selection as also roster of reservation were not followed, the aforesaid appointment was held to be illegal and consequently, the respondent no. 3 has terminated the service of the petitioner by the impugned order dated 01.06.1998 (Annexure-1 to the writ petition). It has also been pleaded that the order dated 14.10.1999 passed in C.W.J.C. No. 5964 of 1998, by which a learned Single Judge of this Court while setting aside the impugned order dated 01.06.1998 (Annexure-1) had allowed the writ petition filed on behalf of the petitioner and others, was reversed by a Division Bench of this Court by order dated 04.03.2008 passed in L.P.A. No. 1505 of 1999 (Annexure-9 to the writ petition). The challenge to the aforesaid judgment of a Division Bench of this Court before the Hon’ble Apex Court by the petitioner, besides others, was negatived and the S.L.P. filed on their behalf was dismissed on 19.09.2008 by the Hon’ble Apex Court. The challenge to the aforesaid judgment of a Division Bench of this Court before the Hon’ble Apex Court by the petitioner, besides others, was negatived and the S.L.P. filed on their behalf was dismissed on 19.09.2008 by the Hon’ble Apex Court. Therefore, according to the learned State Counsel, the matter has attained its finality and the present writ petition is barred by the principles of res- judicata. It was further highlighted by the learned State Counsel that in view of the law laid by a Constitution Bench of the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others v. Uma Devi (3) and others [ (2006)4 SCC 1 ], and in view of the dismissal of the S.L.P. filed on behalf of the petitioner, besides others, the present writ petition is liable to be dismissed with costs, particularly on the ground that the petitioner has tried to mislead this Court by making a misleading and false statement in paragrasph-14 of the writ petition that S.L.P. filed on his behalf was dismissed due to non-prosecution, which is factually incorrect and, in fact, his S.L.P. was dismissed on merit after hearing the parties. 9. After having heard the parties at great length and on consideration of the entire materials available on the record, this Court finds that this is a most unwanted third round of litigation before this Court at the behest of the writ petitioner. Though the petitioner was appointed on the post of Chainman by an order dated 09.02.1985 purely on provisional basis only for a period of three months, which was extended from time to time, but his service was subsequently terminated by the order dated 06.07.1992 (Annexure-4 to the writ petition) by the respondent no. 3 on the ground that his appointment was illegal and irregular. The aforesaid order of termination dated 06.07.1992 (Annexure-4 to the writ petition) was subject matter of challenge in C.W.J.C. No. 5871 of 1992, which was finally disposed of by order dated 23.12.1992 (Annexure-5 to the writ petition) and the matter was remitted back to the respondent no. 3 with a direction to issue a proper show cause notice and pass a fresh order after giving an opportunity of hearing to the concerned employees including the petitioner. 3 with a direction to issue a proper show cause notice and pass a fresh order after giving an opportunity of hearing to the concerned employees including the petitioner. In the light of the aforesaid order and direction dated 23.12.1992 (Annexure-5 to the writ petition), after issuance of show cause notice and after consideration of the entire materials the impugned order dated 1st June 1998 (Annexure-1 to the writ petition) has been passed by the respondent no. 3 declaring the appointment of the petitioner, besides others, to be illegal and, accordingly, his service has been terminated with immediate effect. 10. Thereafter, for the second time, the petitioner, besides others, filed C.W.J.C. No. 5964 of 1998, which was allowed by the judgment and order dated 14th October, 1999 (Annexure-8 to the writ petition) by a learned Single Judge of this Court. The aforesaid order passed by a learned Single Judge was not approved by the Division Bench of this Court in L.P.A. No. 1505 of 1999. The order passed by the learned Single Judge was reversed and the impugned order dated 01.06.1998 (Annexure-1 to the writ petition) passed by the respondent no.3 was upheld. The aforesaid order dated 4th March 2008 (Annexure-9 to the writ petition) passed by a Division Bench of this Court was assailed by the writ petitioner, besides others, in S.L.P. (Civil) No. 12521 of 2008, which was finally dismissed by the Hon’ble Apex Court by order dated 19.09.2008. In view of the decision dated 4th March 2008 (Annexure-9 to the writ petition) by a Division Bench, duly affirmed by the Hon’ble Apex Court vide order dated 19.09.2008, the present writ petition filed on behalf of the petitioner assailing the validity of the original order of termination dated 01.06.1998 (Annexure-1 to the writ petition) is hit by the principles of res judicata and on that ground alone, the present writ petition is liable to be dismissed with costs. 11. 11. Secondly, the claim for regularization of his service made on behalf of the petitioner on the ground that he was allowed to continue in service for quite a long time on the basis of entry in service by order dated 09.02.1985 (Annexure-2 to the writ petition) is untenable and has to be rejected in view of the principles enunciated by a constitution Bench of the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others v. Uma Devi (3) and others (Supra). In paragraph-43 of the aforesaid judgment it has been held as under:- “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 the 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 the qualified persons, the same would not confer any right on the appointee.” The Hon’ble Apex Court further went on to say in the same paragraph that :- “The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme. Merely because an employee had continued under cover of an order of the Court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service.” 12. So far the present case is concerned, admittedly, appointment of the writ petitioner was not made after following the procedures mandated under Articles 14 and 16 of the Constitution of India. In fact, his appointment was made purely on provisional basis for a period of three months only and that too by an officer who was not legally authorised to make such appointment. Hence, his appointment has rightly been held to be illegal and his service has been terminated by the impugned order dated 01.06.1998 (Annexure-1 to the writ petition). In fact, his appointment was made purely on provisional basis for a period of three months only and that too by an officer who was not legally authorised to make such appointment. Hence, his appointment has rightly been held to be illegal and his service has been terminated by the impugned order dated 01.06.1998 (Annexure-1 to the writ petition). Therefore, there is no question of issuance of any direction to the respondents for consideration of his case for his regularization in service. The relief sought for on his behalf is completely misconceived and has to be rejected in view of the law laid down by the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others v. Uma Devi (3) and others (Supra). 13. Thirdly, the identical issues came up for consideration recently before a Full Bench of our own High Court in the case of Ram Sevak Yadav vs. The State of Bihar [ 2013(1) PLJR 964 ]. In paragraph-17 of the aforesaid judgment, the Full Bench has observed as under:- “A person appointed in rank illegality cannot complain that the termination procedure was arbitrary. Those who came in through the back door must go out through the same door.” The Full Bench has summarized the principles enunciated by it in paragraph-43 of the aforesaid judgment. Apparently, the appointment of the petitioner was made without following the procedures prescribed under the law and it was, in fact, a back door entry on the basis of an order passed by an officer having absolutely no authority to pass such order. In above view of the matter and applying the principles enunciated by the Full Bench of our own High Court, the petitioner is not entitled to any relief sought for in the present writ petition. 14. Lastly, this Court finds that this is not only a most unwanted litigation at the behest of the writ petitioner, but he has also tried to mislead this Court about the S.L.P. filed before the Hon’ble Apex Court against the judgment and order dated 4th March, 2008 (Annexure-9 to the writ petition) by a Division Bench of this Court. 14. Lastly, this Court finds that this is not only a most unwanted litigation at the behest of the writ petitioner, but he has also tried to mislead this Court about the S.L.P. filed before the Hon’ble Apex Court against the judgment and order dated 4th March, 2008 (Annexure-9 to the writ petition) by a Division Bench of this Court. Though S.L.P. filed on behalf of the petitioner, besides others, was dismissed by order dated 19.09.2008 by the Hon’ble Apex Court after hearing the parties, but he has made a palpably false and misleading statement in paragraph-14 of the writ petition that the aforesaid S.L.P. was dismissed due to non-prosecution, which is not a fact. 15. For the reasons recorded above, the present writ petition has to fail and is, accordingly, dismissed, but with costs assessed to be Rs. 10,000/- (Rs. Ten thousand), which shall be realized from the petitioner by the State authorities in accordance with law.