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2025 DIGILAW 489 (PAT)

Guru Bishnu Sharma v. State of Bihar

2025-05-05

P.B.BAJANTHRI, S.B.PD.SINGH

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P. B. Bajanthri, J. – The appellant has assailed the order of learned Single Judge dated 02.03.2017 passed in CWJC No. 12749 of 2010. The appellant was appointed as a Clerk in the Project Girls School, Saidpur, District Bhagalpur in the year 1988. His services were terminated on 26.06.1990 and he was taken back to duty on 22.11.1990. Advertisement No. 38 of 1980 dated 06.12.1990 was notified insofar as appointment of Class-III & Class-IV posts. District Establishment Committee recommended the name of the appellant – Guru Bishnu Sharma for the purpose of regularization vide Memo No. 937 dated 31.01.1997. His services were terminated by 4th Respondent on 27.05.1997 and it was stayed by the Respondent No. 3 on 19.04.2000. Thereafter, a show-cause notice was issued on 05.06.2003 by the 5th Respondent. Respondent No. 3 issued a general direction on 06.09.2013 to all the Regional Deputy Directors of Education and District Education Officers to terminate services of all such employees whose appointment has been found irregular. In the light of such general circular, 5th Respondent issued a show-cause notice on 29.10.2003 to the appellant sought his explanation. Explanation was not found satisfactory, resultantly termination order was passed on 10.12.2003 and it was subject matter of CWJC No. 1952 of 2004, which was withdrawn by the appellant and preferred representation before the 4th Respondent. Respondent No. 4 set aside the order of termination dated 22.04.2006 but once again Respondent No. 3 terminated the services of the appellant on 26.03.2008 which was the subject matter before Respondent No. 2 and appellant suffered an order by 06.07.2009. Hence, the present CWJC No. 12749 of 2010. 2. The learned Single Judge proceeded on the premises that appellants initial appointment is not in order and so also he has relied on Full Bench decision on Ram Sevak Yadav vs. State of Bihar reported in 2013(1) PLJR 964 . It is necessary to reproduce relevant portion of the learned Single Judge order and it reads as under: – “Having considered the rival contentions, this Court finds substance in the contentions of learned counsel for the State. It is necessary to reproduce relevant portion of the learned Single Judge order and it reads as under: – “Having considered the rival contentions, this Court finds substance in the contentions of learned counsel for the State. Once, admittedly, when the petitioner was not initially appointed in accordance with the scheme of the Constitution and the relevant circulars, and later, by a specific show cause calling upon him to satisfy the authorities and the same not eliciting any satisfactory explanation, the service of the petitioner which was regularized, is clearly not permissible in light of the Full Bench decision of this Court in the case of Ram Sevak Yadav (supra). In view thereof, the writ petition stands dismissed.” 3. Learned counsel for the appellant submitted that the learned Single Judge should have restricted its decision in respect of termination dated 26.03.2008 read with the order dated 06.07.2009 of Respondent Nos. 2 & 3 respectively. On the other hand, learned Single Judge has taken note of Ram Sevak Yadav (supra) judgment and proceeded to hold initial appointment of appellant itself is not in order. 4. Learned counsel for the appellant submitted that question for consideration is whether termination of the appellant is in order or not? He has pointed out that appellant has been appointed against particular pay-scale at Rs. 580-10-620-15-770- 15-860 this is evident from the Annexure –4 to the writ petition. Therefore, one has to draw inference that he is regular holder of the post. In Government services pay-scale would be extended to such of those regularly appointed. Therefore, question of his initial appointment is required to be examined only after resorting to initiation of disciplinary proceedings under the relevant disciplinary regulations and opportunity is required to be provided. 5. Assuming that appellant was initial appointed on Ad hoc basis thereafter his services were regularised while extending particular pay-scale attached to the post. In such circumstances, the same cannot be re-opened in the light of Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1 in Para 53, which reads as under: – “53. One aspect needs to be clarified. In such circumstances, the same cannot be re-opened in the light of Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1 in Para 53, which reads as under: – “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ (1967) 1 SCR 128 : AIR 1967 SC 1071 ], R.N. Nanjundappa [ (1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [ (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 6. In the light of these factual aspects of the matter the learned Single Judge has committed error insofar as holding that appellant’s initial appointment itself is not in order read with the Full Bench decision in the case of Ram Sevak Yadav (supra). In the light of these factual aspects of the matter the learned Single Judge has committed error insofar as holding that appellant’s initial appointment itself is not in order read with the Full Bench decision in the case of Ram Sevak Yadav (supra). Ram Sevak Yadav (supra) case is not attracted insofar as appellant’s case is concerned, having regard to the fact that his initial appointment may be ad hoc it and it was subsequently regularized as is evident from Annexure-4 to the writ petition to the extent that he has been extended pay-scale attached to a particular post. 7. In the light of these facts and circumstances, appellant has made out a case so as to interfere with the impugned order in CWJC No. 12749 of 2010, order of termination dated 26.03.2008 and its affirmation by order dated 06.07.2009 by Respondent Nos. 2 & 3 are set aside. Consequently, learned Single Judge order dated 02.03.2017 passed in CWJC No. 12749 of 2010 stands set aside. 8. The concerned authorities are hereby directed to extend all service and monetary benefits from the date of termination till reinstatement. The above exercise shall be completed within a period of four months from the date of receipt of this order. Insofar as reinstatement is concerned, the concerned authority is hereby directed to reinstate the appellant within a period of three weeks from the date of receipt of this order. 9. Accordingly, the present LPA No. 587 of 2017 stands allowed.