Letters Patent Appeal No. 1516 of 2011 · Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1516 of 2011 In Civil Writ Jurisdiction Case No. 13739 of 2002 With Interlocutory Application No. 7190 of 2011 In Letters Patent Appeal No.1516 of 2011 ====================================================== 1. The Bihar State Social Welfare Advisory Board, Patna through its Chairperson. 2. The Chairperson, Bihar State Social Welfare, Advisory Board, Patna. .... .... Respondents-Appellants Versus 1. Bechu Ray, S/o Sakaldeep Ray, resident of village-Dhamaun, P.O.- Dhamaun, P.S.-Patori, Distt.-Samastipur. …… …..Petitioner/Respondent 2. The State of Bihar. 3. The Commissioner and Secretary, Social Welfare Department, Govt. of Bihar, Patna. ====================================================== .... .... Respondents-Respondents Appearance :
Legal Reasoning
For the Appellants : Mr. Anand Mohan Verma, Advocate For the Respondent No.1: Mr. Suraj Narayan Yadav, Advocate For the Respondent-State: Mr. S.S. Shabbir Hussain, G.P.-4 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 10. 24-10-2013 Feeling aggrieved by the common judgment and order dated 17th September 2010 passed by the learned single 2 Patna High Court LPA No.1516 of 2011 (10) dt.24-10-2013 2 / 4 judge in so far as C.W.J.C No. 13739 of 2002 is allowed, the respondent- Bihar State Social Welfare Advisory Board, Patna (hereinafter referred to as the ‘Board’) has preferred this Appeal under Clause 10 of the Letters Patent. The matter at issue is the termination of service of the respondent no. 1-the writ petitioner on 1st October 2002 on the premise that his appointment was illegal. Learned single
Decision
Judge has allowed the writ petition solely on the ground that the impugned order of termination of service was made at the dictate of the State Government. The Board being an autonomous body was not supposed to act on the dictate of the State Government. The learned single judge has allowed the writ petition and has set aside the order of termination of service and has directed that the writ petitioner be paid salary till the project on which he was appointed was available. Learned advocate Mr. Anand Mohan Verma has appeared for the Board. He has submitted that the writ petitioner in the present matter was not appointed on a particular project but was appointed in the headquarter. His appointment was illegal as the same was not made on the post sanctioned by the Central Board or with prior approval of the Central Board or after following due process. He has submitted that it is not true that the order of termination of service was made at the dictate of the State Government. He has submitted that the Board had independently made enquiry in respect of the illegalities in the appointment of several of its employees. After examining each case, the order of termination of service was made on 5th May 2003. He has submitted that the order of 5th May 2003 is self explanatory. The order of 5th May 2003 had been made by the Board pursuant to the enquiry made by the Board. Mr. 3 Patna High Court LPA No.1516 of 2011 (10) dt.24-10-2013 3 / 4 Anand Mohan Verma has submitted that the learned single judge has made the impugned order on the wrong premise and on the ground not germane to the cause of action. Learned advocate Mr. Suraj Narain Yadav has appeared for the respondent-writ petitioner. He has supported the judgment of the learned single Judge. Mr. Yadav has submitted that pending the writ petition the aforesaid order dated 5th May 2003 was challenged by the writ petitioner under I.A No. 6327 of 2004. At the outset, we may note that although the writ petitioner had filed I.A No. 6327 of 2004 to bring on record the order dated 5th May 2003 and to challenge the same, the said application had not been allowed by the learned single Judge; nor the writ petitioner had amended his pleadings or the prayers. Nevertheless, we have considered the legality of the order dated 5th May 2003 to examine whether the writ petitioner could have been reinstated in service. The order dated 5th May 2003 is self explanatory. The appointment of the writ petitioner was illegal. As submitted by the learned advocate Mr. Anand Mohan Verma, the same could not have been sustained. In the judgment of this Court, (Coram: Hon’ble the CJ and B.P Verma,J) in L.P.A No. 902 of 2011 and other appeals arising judgment and order dated 17th impugned common from September 2010, we have upheld the action of the Board being in consonance with the relevant Rules and Articles 14 and 16 of the Constitution. The same principle shall apply in the present case also. It is not demonstrated before us that the appointment of the petitioner was legal and valid, made under the relevant Rules after following due process. It is now well settled that illegal appointment in public employment made in violation of the relevant Rules or Articles 14 and 16 of the Constitution 4 Patna High Court LPA No.1516 of 2011 (10) dt.24-10-2013 4 / 4 cannot be sustained. We do agree with the learned single judge that the Board being an autonomous body, had to make its own decision. Board could not have blindly followed the direction issued by the Government. Impugned order dated 1st October 2002 made at the instance of the State Government has rightly been set aside. The writ petitioner, therefore, should be entitled to salary for the period from 1st October 2002 till 5th May 2003, the date on which his service was terminated by the Board after an independent enquiry. For the aforesaid reason we allow this Appeal judgment and order dated 17th impugned partially. The September 2010 passed by the learned single Judge in C.W.J.C No. 13739 of 2002 is confirmed to the extent the order dated 1st October 2002 made by the Board is set-aside. The order of termination of service of the writ petitioner dated 5th May 2003 made by the Board is upheld. The appellant will be entitled to salary for the period commencing from 1st October 2002 till 5th May 2003. The amount of salary for the aforesaid period shall be paid to the petitioner within eight weeks from today. Interlocutory Application stands disposed of. Registry will send the writ forthwith. (R.M. Doshit, CJ) Pawan/- (Ashwani Kumar Singh, J)