Binod Kumar Sinha v. The State of Bihar & Ors

For the petitioner :- Mr. Chandra Bhushan Das, Advocate For the State :- Mr. Ajay Kumar Sharma A.C. to A.A.G.III With CWJC No.3925 of 2006 Surendra Yadav, S/o Late Nasib Lal Yadav, resident of Village-Daharia, Chakla, P.S.-Chhatapur, District-Supaul terminated employee of the Bihar Rashtrabhasa Parishad Research Library, Patna from the post of Cataloguer. ………..Petitioner. Versus - 2 -

1. The State of Bihar 2. The Secretary-cum-Commissioner, Higher Education, Department, Government of Bihar, Patna.-1.

3. The Director, Higher Education Department, Govt. of Bihar, Patna-1. 4. The Director, Bihar Rashtrabhasha Parishad, Acharya Shivpujan Sahay Lane, Saidpur, Patna-4. ………………………………..Respondents. For the Petitioner :- Mr. C. B. Das. Advocate For the State :- Mr. Ramchandra Pd. Bharti, S.C.14 and Mr. Ajay Kumar, A.C. to S.C. 14. -----------

20. 03. 09. Heard learned counsel for the petitioners and the State, in all these cases. Petitioners were appointed on various posts pursuant to local notice (advertisement) inviting applications for appointment to various posts under Bihar Rashtrabhasha Parishad (hereinafter referred to as ‘Parishad’) which is an institution under the Higher Education Department of Government of Bihar. The Notice (advertisement) dated 24. 2. 1997 has been annexed as Annexure 1 in the first writ petition. For sake of convenience, facts are mostly from that writ petition. By order dated 20th September, 1997, appointment of the petitioners were cancelled by the order of the Government as appearing from letter of the Joint Secretary, Higher Education Department, contained in Memo No. 540, dated 16. 10. 1997, in Annexure-5. Petitioners preferred writ petitions against cancellation of their appointment and those were allowed by judgment and order dated 31. 08. 2004, as contained in Annexure-8. This Court interfered with the cancellation of petitioners’ appointment on the ground that termination should not have been done - 3 - without giving opportunity to the petitioners of being heard. The Secretary of the Higher Education Department was directed to give opportunity by issuing notice to the petitioners without reinstating them, indicating grounds for proposed cancellation of appointment. After hearing the petitioners, the Secretary has passed impugned order contained in Annexure-11, dated 8. 8. 2005. From the order of the Secretary dated 8. 8. 2005, it transpires that the Parishad admitted that in the past also all the appointments in the Parishad were made through local advertisement after interview without any newspaper publication. The Secretary has held that such process of appointment did not have any authority of law. The Secretary has formulated the important issue as to whether the procedure of appointment followed by the Parishad should be granted recognition or not and then answered in negative by holding that such procedure can not be treated to be legal because it was different from procedure for appointment prescribed by Department of Personnel and Administrative Reforms of State Government. On such reasoning, it has further been held by the Secretary that since all earlier appointments in the Parishad are contrary to the procedure of appointment prescribed by Government Office, Director of the Parishad should take steps for terminating the services of all earlier employees in a phased manner after giving them opportunity of hearing. He did not direct for terminating the services of all employees at one point, because it would affect the working of the Parishad. He has also directed to decide the issue whether pension - 4 - and gratuity to all such employees will be payable or not on termination of their services, it should be determined after taking opinion of the Personnel and Administrative Reforms Department as well as Law Department of the State Government. It has further been observed that if the Parishad requires the services of the concerned employees and if they fulfil the minimum qualification and rules of reservation, then their services may be retained on contract basis, till regular appointments are made on sanctioned posts. He has further clarified that such employees who were appointed without advertisement and without following even the procedure followed by the Parishad should not be reinstated even on contractual basis. It has further been observed that if regular appointments are made then terminated employees will be entitled to be considered for appointment and separate order may be issued to relax the age requirement for such candidates. The order of the Secretary mentions at the end that since the issue relates to policy matter, hence necessary order should be issued to the Director of the Parishad after obtaining the order of the State Government. On behalf of the petitioners it has been submitted that procedure of appointment adopted by the Parishad was same as has been adopted in the past and, therefore, appointment of the petitioners should not face termination and only future appointments may be governed by fresh policy decision that may be taken by the State Government in the light of the recommendation made by the Secretary in the impugned order dated 8. 8. 05. - 5 - The Secretary has upheld earlier order terminating petitioners’ services which was based on the ground that appointments had been made without prior permission of the State Government and they were without any regard to reservation policy and procedure of appointment prescribed by the State Government. The Parishad is an institution created by the Higher Education Department of the State Government through Rules dated

21.11.59 and those rules have been included in Section 5 of the Bihar Education Code. On perusal of the Rules it is found that the State Government has pervasive control over entire policy decision and functioning of the Parishad and all such decisions and determinations are subject to approval or policy of the Government. Prior approval of the Bihar Government is necessary for giving effect to such decisions. This is clear from Rule 6 under Article 767 of the Bihar Education Code. Under the Rules, there is no separate provision as to how the staff and employees of the Parishad shall be created and appointed. But the Director of the Parishad under Rule 21 is required to be a Government servant appointed by the Bihar Government who exercises only such duties and powers as may be entrusted and delegated to him by the Government. Ordinarily, he shall have the same administrative and financial duties and powers as are exercised by the Regional Director of Education (previously known as Inspector of School). Considering the discussions made by the Secretary in the - 6 - impugned order and the provisions in the Rules, it is clear that Parishad had no authority to formulate a different policy and procedure contrary to that of State Government in the matter of regular recruitment to posts created by the Parishad and if such decision or determination was ever taken, the same could not be made effective without approval and permission of the State Government. It is clear that the State Government never granted approval or permission to any decision relating to recruitment of employees of Parishad in a manner contrary to that of the State Government. However, it is also clear from the stand of the Parishad before the Secretary that in fact Parishad was treated as an autonomous institution, having power to appoint its employees and such appointments were made in the past on the basis of local notice (advertisement) and interview. The State Government clearly consented to such state of affairs in the past and therefore, the employees who are selected and recruited in the past as per prevalent practice of the Parishad may not be held responsible for lapses on the part of the Parishad and the State Government. To that extent, general observations and directions of the Secretary in the impugned order dated 8. 8. 05, appear to be contrary to justice and equity. So far as appointment of the petitioners in the year 1997 are concerned, from the counter affidavit of Respondent Nos. 5 and 6, it transpires that the State Government in the Department of Higher Education took conscious policy decision dated 15th November, 1996, - 7 - in respect of appointment in the Parishad and other similar Institutes under the Education Department (copy of that has been annexed as Annexure-B to the said counter affidavit.) That decision clarified that State Government had gathered knowledge that different Institutes under the Department at the level of the Director made appointments in the past without prior approval of the State Government and without following the rules of recruitment. Hence, the State Government has decided that without clear prior approval of the State Government no appointment to any post shall be made in such institutions even on temporary, ad hoc or daily wages. As contained in para 2 of the said policy decision, further direction was given to all the Controlling Authorities of such institutions that without clear prior approval of the State Government and without following rules of reservation and prescribed procedure of appointment, no appointment of any kind shall be made on any post. Yet further direction was given that if such appointments had been made in the past in a manner contrary to the direction, then a list of such appointee should be furnished and steps should be taken to terminate such appointments. Theretggggggg is no need in this case to decide the legality of the last direction contained in Annexure-B for terminating the service of past employees in the Parishad, more so when legal position has already been indicated above. But in respect of the petitioners who have been allegedly appointed pursuant to a local Notice Board advertisement dated 24. 2. 97, much after the positive clarification and - 8 - direction of the State Government dated 15th November, 1996, there can be no doubt that the concerned officials and Director of the Parishad have exceeded their jurisdiction and power in making such appointments without clear prior approval of the State Government and without following the prescribed procedure for recruitment, which must refer to and mean the procedure prescribed for recruitment for similar employees under the State Government. Hence, appointment of the petitioners are found to be contrary to law and the reasons assigned for termination of services of the petitioners in the order dated 24. 2. 97, can not be faulted. For that reason this Court is unable to interfere with the impugned order and hence this writ petition is dismissed. It is made clear that if any of the petitioners have claim to their wages for the period they had worked, then they shall be at liberty to file representation and if such claim is found correct, they should be paid their lawful dues without delay. Further, as per policy decision indicated in the decision of the Secretary, age relaxation shall be made available to them as and when the Parishad decides to engage employees on contract basis. Their cases may also be considered as per law for regular appointment by giving relaxation of age. If contention is correct that 50% posts are vacant and if the Parishad needs to fill up the vacant posts, then steps for regular appointment should be taken expeditiously as per rules and such process should be initiated, within four months. m.p. (Shiva Kirti Singh, J.) - 9 -