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2014 DIGILAW 1161 (PAT)

Sashibhushan Kumar v. State of Bihar

2014-11-25

ASHWANI KUMAR SINGH, R.M.DOSHIT, RAKESH KUMAR

body2014
C.A.V. JUDGMENT This group of writ petitions and the Letters Patent Appeal have landed before the Full Bench pursuant to the reference made by the learned single Judge under order dated 21st July 2009. 2. The matter at issue is the legality of the appointment of each petitioner in Class III service in Intensive Artificial Insemination Programme made by the Regional Director in Animal Husbandry Department of the State of Bihar. 3. According to the State Government, concerned posts were of State Cadre; the Regional Director of Animal Husbandry did not have power or authority to make appointment; the appointment of the writ petitioners was made without the authority of law; was illegal and void ab initio. In the above view of the State Government, the State Government issued direction to the Regional Directors of Animal Husbandry to take steps to terminate the service of each such employee. It is the said direction issued by the State Government and the consequent action of termination of service taken by the Regional Director of Animal Husbandry which are the subject matter of challenge in each writ petition. 4. The learned single Judge has, under the reference dated 21st July 2009, traced the history of the appointment and termination of service of the writ petitioners. The learned single Judge has noted that there were diverse opinion of several benches of this Court. A Division Bench of this Court had, under order dated 11th October 1993 made in CWJC No.7162 of 1993, upheld the action of the State Government. However, that view was questioned by another bench under its order dated 29th August 2008 made pending CWJC No.4402 of 2000. The learned single Judge has also noted various orders made by the Benches of the learned single Judge in several writ petitions; the orders of the Division Bench dated 26th November 1999, 6th December 1999 and 25th January 2005 which upheld the action of the State Government and also the judgment of the Hon’ble Supreme Court in the matter of State of Bihar vs. Upendra Narayan Singh & others [ (2009) 5 SCC 65 ]. The learned single Judge also noted that while making the aforesaid order dated 29th August 2008 the Bench had not noticed the above referred Division Bench judgments dated 26th November 1999; 6th December 1999; and 25th January 2005. The learned single Judge also noted that while making the aforesaid order dated 29th August 2008 the Bench had not noticed the above referred Division Bench judgments dated 26th November 1999; 6th December 1999; and 25th January 2005. Nevertheless, the learned single Judge instead of following the binding precedent in the matter of Upendra Narayan Singh (supra) preferred to refer the matter to the Full Bench. 5. We have heard the learned advocates appearing for the writ petitioners. More or less the facts are common. Each writ petitioner was initially appointed as casual worker in Intensive Artificial Insemination Programme under the Regional Director, Animal Husbandry, Patna Barauni/ Darbhanga in 1988/1989. After working as casual worker for around a year, under the orders made by the Regional Director of Animal Husbandry, Patna/Barauni/Darbhanga each writ petitioner was “in view of his long service for years” appointed as “Progressive Assistant” or “Computer/ Enumerator” in Class III service in 1989/1990. The series of such appointments made by the Regional Directors came to the notice of the State Government. The State Government, therefore, in 1997 directed the Regional Directors, Animal Husbandry to examine all such appointments and to take steps to cancel the illegal appointments. Pursuant to the said direction, after giving opportunity to each petitioner to show cause, their service has been terminated under the respective orders. 6. According to the learned advocates appearing for the writ petitioners, the action taken by the State Government and the consequential orders made by the Regional Director of Animal Husbandry are not justified. 7. The first submission is that the Regional Director of Animal Husbandry was authorized to make appointments. As held by this Court under order dated 25th September 1999 made in CWJC No.10785 of 1997, the Regional Director enjoyed the said authority until 28th October 1991. Each appointment in question was made by the concerned Regional Director in 1989/1990 in exercise of the power conferred upon him. The very basis that the Regional Director had no authority is erroneous. Each petitioner was validly appointed on a sanctioned vacant post by the competent authority. 8. The second submission is that even if the appointment of the writ petitioners/appellant were not legal and regular, the order of termination of their service made without holding enquiry envisaged by Article 311 (2) of the Constitution was not sustainable. 9. Each petitioner was validly appointed on a sanctioned vacant post by the competent authority. 8. The second submission is that even if the appointment of the writ petitioners/appellant were not legal and regular, the order of termination of their service made without holding enquiry envisaged by Article 311 (2) of the Constitution was not sustainable. 9. The third limb of the submission is that in any view of the matter the appointment of the writ petitioners was made on sanctioned vacant posts. All the petitioners having rendered about 10 years’ service, their service was liable to be regularised as held by the Hon’ble Supreme Court in the matters of State of Karnataka & Ors. Vs. Uma Devi (3) [ (2006) 4 SCC 1 ] and of State of Karnatka & Ors. Vs. M.L. Keshari [ (2010) 9 SCC 247 ]. 10. The reliance is also placed on Government Communications dated 17th February 1962 and dated 30th April 1966 issued by the Deputy Secretary to the Government addressed to the Accountant General. Under the said Communications, the Accountant General had been informed that the State Government had delegated, inter alia, the power of appointment of Class III ministerial staff to the Range and Sectional Officers of the Animal Husbandry Department and the administrative and financial powers to the Special Officer, Patna and Barauni and Artificial Insemination Officer and Veterinary Officer as per the attachment under communication dated 30th April 1966. On perusal of the said attachment it is apparent that the administrative powers, such as purchase, repairs, production of cattle feed, medicines were delegated to the officers at various level. The Special Officer, Patna and Barauni were, inter alia, delegated full power of appointment of Class III ministerial staff and Class IV staff. 11. According to the State Government, the said delegation was no longer in operation. On 20th April 1981, the Personnel and Administrative Reforms Department had, in supersession of all earlier directions, issued general direction for appointment to various State Cadre posts. The Class III posts under the Regional Director were the State Cadre posts. Consequent upon the instructions issued on 20th April 1981 the power to make appointment on such posts were vested in the State. For the purpose of selection, the State Government had established the Bihar State Subordinate Service Selection Board. The Class III posts under the Regional Director were the State Cadre posts. Consequent upon the instructions issued on 20th April 1981 the power to make appointment on such posts were vested in the State. For the purpose of selection, the State Government had established the Bihar State Subordinate Service Selection Board. In other words, the power to make selection was exclusively vested in the Bihar State Subordinate Service Selection Board and the authority to make appointment was vested in the State Government. Admittedly, each writ petitioner was appointed after 20th April 1981. None of the writ petitioners was appointed after going through due selection procedure. Not one appointment was legal and valid. 12. These are the basic facts and contentions raised before us. We need not delve into the matter further since the matter has already been set at rest by the Hon’ble Supreme Court in the matter of State of Bihar Vs. Upendra Narayan Singh [ (2009) 5 SCC 65 ]. In the said matter an identical issue was raised in respect of the appointment of the respondent Upendra Narain Singh made by the Regional Director of Animal Husbandry. The Hon’ble Judges have discussed the right to equality enshrined under Articles 14 and 16 of the Constitution. The learned Judges of the Hon’ble Supreme Court have relied upon “Framing of India’s Constitution Volume II, edited by B. Shiva Rao” and the parliamentary discussions. The Hon’ble Court has held, “The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination”. After extensive discussion on the basic principle and plethora of judgments on the issue, the Hon’ble Court has upheld the action of the State Government. The Hon’ble Court dismissed the arguments based on right to life protected under Article 21 of the Constitution. 13. In view of the aforesaid judgment of the Hon’ble Supreme Court, the binding precedent, I have but to uphold the action of the State Government. 14. Let me assume for a moment that the Regional Director of Animal Husbandry was empowered to make appointment of Class III ministerial staff and Class IV staff under him. Even in that case, was the Regional Director justified in making the appointments in the manner in which he made the appointments. The power has to be exercised in the manner in which it is directed to be exercised. Even in that case, was the Regional Director justified in making the appointments in the manner in which he made the appointments. The power has to be exercised in the manner in which it is directed to be exercised. Even under 1966 delegation of power, the Regional Director was not empowered to make appointments indiscriminately, at his will or without following due process of selection. 15. In the present case, each petitioner was initially appointed as a casual worker. After serving for a year or so, each writ petitioner was regularised in Class III service on the pretext that each petitioner had rendered “long service”. Evidently, the appointment of the petitioners was made contrary to all canons of service jurisprudence. Admittedly, the Regional Director had not invited applications by public notice. None of the petitioners had to face competition. They were offered the employment on a platter without following due process of law. The appointment of the writ petitioners was ex facie bad and illegal and untenable. The judgments of the Hon’ble Supreme court in the matter of Uma Devi (supra) or M. L. Keshri (supra) cannot be pressed into service to regularise totally illegal service of the writ petitioners. Time and again the Hon’ble Supreme Court has deprecated the illegal appointments made in the State service by adopting dubious measures and the act of regularization of such dubious appointments. 16. In my view, the appointment of the writ petitioners was totally illegal and arbitrary, the least that the State Government could do is to get rid of such employees appointed on extraneous consideration in utter disregard of the principle of equality enshrined in Articles 14 and 16 of the Constitution. 17. For the aforesaid reasons, the writ petitions and the appeal are dismissed. 18. Interim reliefs, if any, stand vacated.