JUDGMENT : I.A. No.9684 of 2018: 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity. 2. The instant interlocutory application is under Section 5 of the Limitation Act for condoning the delay of 123 days in preferring the instant appeal. 3. This Court, after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay of 123 days in filing the appeal, is condoned. 4. In the result, the instant interlocutory application is disposed of. L.P.A. No.639 of 2018: 5. The is an appeal under Clause 10 of the Letter Patent directed against the order/judgment dated 17.04.2018 passed by learned Single Judge of this Court in W.P.(S) No.250 of 2015 by which the order dated 08.01.2015 and the consequential order dated 16.01.2015, terminating the writ-petitioner from service, has been quashed with a direction to reinstate the writ-petitioner in service on the post from which he was terminated from service, however, with the liberty to initiate a departmental proceeding, if so advised, against the writ-petitioner for unauthorized retention of Rs.11,10,276/-. 6. The brief facts of the case which requires to be referred herein reads hereunder as: The writ-petitioner was appointed as daily wager against the sanctioned and vacant post of junior engineer vide memo No.600 dated 18.11.2002, started discharging his duty with utmost sincerity and with the satisfaction of the competent authority, Special Officer, Municipality, being satisfied with the performance of the work rendered by the writ-petitioner has made a recommendation with a request addressed to the Under Secretary, Urban Development, State of Jharkhand, Ranchi for regularization of the service of the writ-petitioner vide memo No.156 dated 13.03.2003 on the ground that the post upon which the writ-petitioner is rendering his service is sanctioned and vacant, in pursuance thereto, the Under Secretary, Urban Development, State of Jharkhand, Ranchi wrote a letter as contained in Letter No.780 dated 25.03.2003 stating therein that if the post of junior engineer is sanctioned and vacant, being the competent authority to appoint/promote/regularize the service of the writ-petitioner, proper decision may be taken. The competent authority has regularized the services of the writ-petitioner vide decision as contained in Memo No.185 dated 28.03.2003. The writ-petitioner has been disbursed with the salary of the regular employee but all of a sudden since the Month of June, 2008 the salary of the writ-petitioner was stopped, in consequence thereof, the writ-petitioner has filed representations before the Secretary, Urban Development Department, Jharkhand, Ranchi, in response to the said representation, the Under Secretary, Urban Development, State of Jharkhand, Ranchi has written a letter as contained in letter No.3129 dated 12.09.2011 making therein the request to make payment according to law and after payment, the same may be communicated to the department within the period of 15 days. The writ-petitioner in course of discharge of his duty has been handed over advance of Rs.57,10,000/-for construction of residential houses, cost of construction comes to Rs.45,99,724/-and for the remaining amount of Rs.11,10,276/-further construction of 32 residences have been directed to be made. One Abid Raza Khan made a complaint against the writ-petitioner before the Secretary, Urban Development Department, Jharkhand, Ranchi raising therein the illegality committed in the matter of regularization of the service of the writ-petitioner, in pursuance to the aforesaid complaint, the Urban Development Department wrote a letter to the Executive Officer, Giridih Municipal Board for cancellation of appointment of the writ-petitioner and for conducting an enquiry of alleged irregularity of Rs.65,00,000/-and to submit a report in this regard before the Department. The Executive Officer, Municipal Board on receipt of such decision and vide order dated 08.01.2015 cancelled the appointment of the writ-petitioner with immediate effect without providing any opportunity of hearing. The writ-petitioner being aggrieved with such arbitrary decision approached to this Court by filing writ petition being W.P.(S) No.250 of 2015 by invoking the jurisdiction conferred under Article 226 of the Constitution of India. 7. The writ-petitioner being aggrieved with such arbitrary decision approached to this Court by filing writ petition being W.P.(S) No.250 of 2015 by invoking the jurisdiction conferred under Article 226 of the Constitution of India. 7. The learned Single Judge of this Court has considered the ground of the writ-petitioner about non-observance of principle of natural justice in the matter of cancellation of the appointment of the writ-petitioner and holding in the impugned order that since the writ petitioner has become a regular employee, he will be protected under the Civil Services (Classification, Control and Appeal) Rules which requires for initiation of a departmental proceeding before taking such decision of cancellation of appointment of any regular employee working under the regular establishment and had quashed the orders dated 08.01.2015 and 16.01.2015 with a direction for reinstatement of the writ-petitioner in service on the post from which he was terminated, however, with the liberty to the departmental authorities to initiate a departmental proceeding, if so advised, against the writ-petitioner for unauthorized retention of Rs.11,10,276/-, the aforesaid order is the subject matter of the present intra-court appeal. 8. Mr. Shailendra Kumar Singh, learned counsel for the Executive Officer, Giridih, Municipal Corporation, the appellant herein, assailed the impugned order inter alia on the ground that the very inception of the writ-petitioner in the service since has been found to be illegal as such there is no question of initiation of departmental proceeding but the learned Single Judge without appreciating this aspect of the matter has quashed the impugned decision taken by the authority which cancelled the appointment of the writ-petitioner. According to him, in the matter of illegal appointment there is no question of observance of principle of natural justice or initiation of a departmental proceeding as required to be initiated under the applicable Classification and Control Rules since the discipline appeal rule is applicable to such an employee whose appointment is in consonance with law/rule. According to him, in the matter of illegal appointment there is no question of observance of principle of natural justice or initiation of a departmental proceeding as required to be initiated under the applicable Classification and Control Rules since the discipline appeal rule is applicable to such an employee whose appointment is in consonance with law/rule. His further contention is that, though the learned Single Judge has given liberty to initiate a departmental proceeding but not with respect to the illegality which has been committed by regularizing the service of the writ-petitioner rather liberty to initiate departmental proceeding has been granted for unauthorized retention of Rs.11,10,276/-, which according to the learned counsel for the appellant, is absolutely improper since the impugned order dated 08.01.2015 speaks about the illegality of the appointment of the writ-petitioner, therefore, submission has been made that even accepting the order of the learned Single Judge to be proper so far it relates to non-observance of principles of natural justice by not initiating a departmental proceeding before cancelling the appointment even in that circumstances, the liberty ought to have been granted for initiation of a departmental proceeding with respect to initiation of a departmental proceeding pertaining to the fact about the nature of process of appointment but having not done so, the impugned order suffers from gross illegality and as such the same is not sustainable in the eye of law. 9. Mr. Manoj Tandon, learned counsel for the respondent-writ petitioner has submitted that there is no infirmity in the impugned order because the writ-petitioner has been regularized in service on 28.03.2003 and the moment the writ-petitioner has been taken into regular establishment by taking decision in this regard even if the authority wants to dispense with the service of the writ-petitioner it was the requirement of law to initiate a departmental proceeding so that the writ-petitioner may have got an opportunity to defend himself, having not done so, the learned Single Judge by appreciating this aspect of the matter has rightly come to conclusion for quashing of the impugned order dated 08.01.2015 and consequential order issued on 16.01.2015, therefore, there is no illegality due to the settled position of law that the cancellation of appointment having civil consequential cannot be passed without providing opportunity of hearing by initiating a regular departmental proceeding, therefore, submission has been made that the impugned order may not be interfered with. 10. Having heard the learned counsel for the parties and on appreciation of their rival submissions as also the finding recorded by the learned Single Judge in the impugned order it requires to refer certain admitted fact in this case which are: The writ-petitioner was initially appointed on 18.11.2002 as Junior Engineer in the capacity of daily wager against the sanctioned and vacant post. After rendering services and finding the service satisfactory correspondences have been made by the competent appointing authority, i.e., Special Officer, Giridih, who has written a letter to the Nodal Department, i.e., Urban Development Department, Government of Jharkhand, Ranchi for regularization of the service of the writ-petitioner upon which the Secretary, Urban Development Department in response to the said letter has asked the authority to take such decision in the capacity of competent authority if the writ-petitioner is working against the sanctioned and vacant post, in pursuance thereto, the writ-petitioner has been regularized in service vide order dated 28.03.2003 w.e.f. 27.03.2003 and directed to give his joining, in compliance to the said order the writ-petitioner has given his joining and started discharging his duty in the capacity of regular Junior Engineer under the Municipality, Giridih. He has also been assigned with a duty for construction of certain residences for which certain amount was advanced, however, some amount of advance was invested for the purpose for which it was advanced to the writ-petitioner but it has been alleged that some amount has been defaulted by the writ-petitioner to that effect a complaint was made raising therein the illegality committed in the matter of appointment of the writ-petitioner, in pursuance to the said complaint, the Under Secretary issued a communication addressed to the Executive Officer, Giridih, Municipal Board on 08.01.2015 holding the appointment of the writ-petitioner as illegal with a direction to cancel the appointment and conduct an enquiry about the financial irregularity alleged to have been committed with respect to the amount of Rs.65,00,000/-. The Executive Officer, Municipality, Giridih vide order dated 16.01.2015 cancelled the appointment of the writ-petitioner with immediate effect with a direction to hand over the charge of the post in favour of one Shri Sunil Kumar Srivastava, Junior Engineer working therein. The Executive Officer, Municipality, Giridih vide order dated 16.01.2015 cancelled the appointment of the writ-petitioner with immediate effect with a direction to hand over the charge of the post in favour of one Shri Sunil Kumar Srivastava, Junior Engineer working therein. The writ-petitioner approached to this Court questioning the decision of the authority by which the appointment of the writ-petitioner has been cancelled inter alia on the ground that there cannot be any simplicitor cancellation of the appointment of the writ-petitioner since the writ-petitioner has already been regularized under the regular establishment by an order passed by the competent authority vide order dated 28.03.2003 under the information to the Nodal Department, i.e., Urban Development Department of the State of Jharkhand, considering the aforesaid aspect, the learned Single Judge agreeing with the plea of the writ-petitioner has quashed the impugned orders dated 08.01.2015 and 16.01.2015. 11. This Court after considering the rival submissions of the parties is of the considered view on the basis of the admitted fact that although the writ-petitioner has been inducted in service in the capacity of daily rated employee but subsequently the Special Officer claiming to be the competent appointing authority, has regularized the writ-petitioner in service against the sanctioned and vacant post under the due information of the Urban Development Department of the State of Jharkhand. 12. It is the settled position of law that the service of a daily rated employee can be cancelled without issuing even show cause notice what to say about the departmental proceeding as the departmental proceeding is required to be initiated under the applicable discipline and appeal rules against the public servant but the daily rated employee, so long such daily rated employee is not inducted under the regular establishment, cannot be termed as public servant and therefore, there would be no question of application of discipline and appeal rule which contains a provision of imposing major and minor punishment. 13. 13. The admitted position herein is that the writ-petitioner has been regularized in service vide order dated 28.03.2003 which according to the respondent-State of Jharkhand is not proper on the ground that there is no provision to regularize the service of Junior Engineer amongst the employee who are working under the capacity of daily rated employee but the fact remains that rightly or wrongly, the writ-petitioner has been regularized in service on the post as he has also been paid salary up to the Month of May, 2008, however, from the Month of June, 2008 the salary was stopped and further the writ-petitioner was assigned to discharge duty for construction of residential houses for which certain amount was also advanced. 14. In view of such circumstances it cannot be denied and disputed that the capacity of the writ-petitioner has been changed from daily rated employee to that of a regular employee working under the regular establishment of the Municipality, Giridih, therefore, the moment the writ-petitioner was inducted under the regular establishment of the Municipality, Giridih, he will be subject to discipline and appeal rule applicable to the Giridih Municipality and if any action was required to be taken it is under the discipline and appeal rule by initiating a regular departmental proceeding. The day when the service of the writ-petitioner was regularized, his capacity has been changed from the daily rated to that of a regular employee working under the regular establishment. 15. The learned Single Judge has considered this aspect of the matter and came to conclusion about applicability of initiation of a departmental proceeding by serving a memo of charge by putting reliance upon the judgment rendered in the case of Canara Bank and Others vs. Debasis Das and Others, reported in (2003) 4 SCC 557 which lays down the proposition that before taking an adverse decision a notice is required to be issued to the authority in order to observe the principles of natural justice, therefore, the order dated 08.01.2015 and consequential order dated 16.01.2015 have been said to be not in accordance with law since have been passed without following the principles of natural justice. 16. 16. This Court, is of the considered view that so far as the aforesaid finding about quashing of the order dated 08.01.2015 and 16.01.2015 are concerned, the same cannot be faulted with for the reason that once the writ-petitioner has been regularized and taken into regular establishment he will have a right to defend himself and that can only be done if a notice be issued for initiation of departmental proceeding and therefore, the said part of the order is not fit to be interfered with. 17. Consequently the order of reinstatement also requires no interference as the moment the orders dated 08.01.2015 and 16.01.2015, by which, the appointment of the writ-petitioner has been cancelled, have been set aside he will be said to be holding the position as he was holding prior to the impugned order but so far as the other part of the order to the effect that the departmental authorities having given liberty to initiate a departmental proceeding against the writ-petitioner for unauthorized retention of Rs.11,10,276/-is concerned, the same according to our considered view requires interference by way of modification for the reason that the impugned order dated 08.01.2015 speaks about the cancellation of the appointment of the writ-petitioner and the order dated 16.01.2015 is a consequence by taking a decision for cancellation of appointment of the writ-petitioner with immediate effect and once the learned Single Judge came to a finding that the appointment of the writ-petitioner cannot be cancelled without providing an opportunity of hearing it was incumbent upon the learned Single Judge also to grant liberty to the authority to initiate a departmental proceeding to come to the conclusion as to whether any illegality has been committed in regularizing the service of the writ-petitioner or not? But, having not done so, according to our considered view, the learned Single Judge is not correct in only granting liberty to initiate departmental proceeding for retention of Rs.11,10,276/-. 18. But, having not done so, according to our considered view, the learned Single Judge is not correct in only granting liberty to initiate departmental proceeding for retention of Rs.11,10,276/-. 18. This Court requires to modify the part of the order on the basis of the settled position of law that on technicality no one can be allowed to take advantage and since in the present case allegation of illegal appointment was made, it requires to be enquired into, which can only be done by initiating a proper proceeding, therefore, this Court deem it fit and proper to modify the part of the order and accordingly hereby modify the order passed by the learned Single Judge to the effect the authorities would also be at liberty to initiate a proper proceeding, if so advised, pertaining to the issue of illegal appointment of the writ-petitioner. However, if any decision to initiate a departmental proceeding about the illegal appointment of the writ-petitioner is to be taken then concerned competent authority will initiate a proceeding against the concerned responsible officers or employees or authority also who in view of the stand taken, were instrumental in alleged illegal appointment or regularization of the writ-petitioner in service as, if any appointment/regularization has been made by the competent authority flouting the law or contrary to Articles 14 and 16 of the Constitution of India, that would also amount to misconduct and when there is misconduct, a departmental proceeding would be required to be initiated for that also. Therefore, we are of the view that if a proceeding will be decided to be initiated against the writ-petitioner on the issue pertaining to illegal appointment, the erring officials, who have appointed the writ-petitioner would also be required to be dealt with in similar manner. 19. With the aforesaid observation and direction, the appeal stands disposed of. 20. Pending interlocutory application(s), if any, also stands disposed of.