KRISHNA PRASAD BHAGAT v. THE STATE OF BIHAR

Learned counsel for the petitioner submits that so far initial entry of the petitioner is concerned, the same was not illegal and void. He submits that, in view of very limited number of vacancies, respondent District Education Officer was authorized in law to issue a notice on the notice board, inviting applications and calling names from the Employment Exchange, and after holding interview of eligible candidates, referred to by the Employment Exchange and others, who submitted the application, he could make an appointment. He submits that this procedure was followed by the then District Education Officer in 1982 prior to his appointment. He submits that initially petitioner was appointed for limited period pending consideration of his regularization, which consideration was never made by the respondents. He submits that petitioner had already appeared before the - 5 - respondents for interview for his regularization and had also applied in response to the advertisement no. 38 of 1990, but the respondents failed in their duty to complete the process and consider the cases of eligible incumbents working in the department for their regularization or absorption. He submits that still petitioner was allowed to continue in services with time bound promotions etc. and, therefore, for all practical purposes, he was treated as regular employee. In this view of the matter, he submits that, the initial appointment of the petitioner can not be treated as illegal and void ab inito and, therefore, his case ought to have been considered in terms of the directions of the Constitution Bench of the Supreme Court as contained in paragraph 44 of State of Karnatka Vs. Uma Devi (3) reported in 2006 (1) SCC 663. Counter affidavit has been filed in the case disputing the claim of the petitioner. Learned counsel for the State submits that clearly the procedure for regular appointment laid down in Government letter no. 16440 dated 3.12.1980 was not followed in the matter of appointment of the petitioner. He submits that the very fact that the petitioner was appointed only for three months shows that it was just an ad hoc appointment by the respondent District Education Officer without following the procedure and, therefore, the petitioner could not be treated as regular appointee. He submits that at best he was required to appear in the - 6 - interview for his regular appointment in which he could claim a consideration on the basis of his long continuance in the department. He submits that the decision of the Hon’ble Supreme Court in the case popularly known as Uma Devi case has been held by the Apex Court in the case of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Ors. reported in 2009 (7) SCC 205 being operative retrospectively. Therefore, in view of illegal appointment of the petitioner, his case could not be considered for regularization in terms of said Constitution Bench judgment also. It is true that in matters of public employment on Class-III & IV posts, letter no. 16440 dated 3.12.1980 was in operation which required advertisement, interview, preparation of panel etc. for regular appointment on vacant sanctioned posts under the Government by a District Level Committee. This is also true that the said procedure was not followed at the time of appointment of the petitioner. However, as pleaded by the petitioner, some semblance of selection procedure was gone into at the time of appointment of the petitioner, inasmuch as in view of the limited number of vacancies, as claimed by the petitioner, a notice was published on the notice board and names were called for from the Employment Exchange. If this fact is true, it does appear that the then District Education Officer had adopted some procedure for appointment on Class-III posts and held some - 7 - interview in which petitioner was selected for his appointment. Learned counsel the petitioner has submitted that, in the event of availability of only a few vacancies, for appointment on Class-III posts, this procedure was in vogue and adopted by the competent authority. From the show cause reply, filed by the petitioner, it appears that, this stand was not taken by him in his reply. Therefore, respondents District Education Officer had no occasion to examine this aspect of the matter and verify it from the records with regard to the correctness of the same. In that view of the matter, this Court is of the view that the matter of appointment and continuance of the petitioner should be reconsidered by the authorities after giving due opportunity to the petitioner to prove his case with regard to process of his initial entry in the service. While considering the same the authorities shall also take into account that in case petitioner’s appointment is found irregular and not illegal and he continued on the basis of same with the respondents for more than 20 years, he deserves to be regularized on the post in terms of the observations of the Constitution Bench in Paragraph 44. In the result, for the purpose as indicated above, Annexure-14 is quashed and the matter is remitted back to the competent authority to examine it afresh in the light of submissions and stand taken by learned counsel for the - 8 - petitioner before this Court. It will be appropriate that petitioner files an application for the purpose before respondent District Education Officer with certified copy of the orders of this Court, upon which he will fix a date in the matter and call for the petitioner to produce all documents and materials in support of his claim. Thereafter the same shall be considered and final orders shall be passed in accordance with law within two months from the date of appearing of the petitioner before him. In the result, this writ application is allowed with above observations and directions. Arvind/ (J. N. Singh, J.)