BUDDHI NATH MISHRA v. THE STATE OF BIHAR. & Ors.

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7117 of 2002 BUDDHI NATH MISHRA, S/O SHRI VISHWA NATH MISHRA, R/O VILLAGE-GANGAPATTI, P.O.-LAHERISARAI, P.S.- BAHADURPUR, DISTRICT-DARBHANGA. ……………………PETITIONER. Versus

1. THE STATE OF BIHAR. 2. THE DIRECTOR, SECONDARY EDUCATION, GOVERNMENT OF BIHAR, PATNA.

3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, DARBHANGA DIVISION, DARBHANGA. ……………………RESPONDENTS. FOR THE PETITIONER : MR. PUSHKAR NARAIN SHAHI, ADV.AND MR. SHANKAR KUMAR CHOUDHARY, ADV. FOR THE STATE : SUNIL KUMAR MANDAL, SC-XV AND BIPIN KUMAR, AC TO SC-XV. ----------- 4 27.08.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of Annexure-16 dated 27.03.2002 by which under the orders of the Director, Secondary Education the services of the petitioner were terminated on the ground that his appointment was not made after the following procedure prescribed. In the order, it is mentioned that the petitioner’s appointment was made without due advertisement and interview and he was allowed to continue as such. It appears that against the earlier termination order issued by the Regional Deputy Director, the petitioner had moved this Court through C.W.J.C. No. 9656 of 1998. This Court had - 2 - disposed of the writ application with liberty to the petitioner to file a representation against the said termination and had directed the respondent to consider the same and pass fresh orders. Pursuant to the said direction of this Court, the impugned order has been passed. Learned counsel for the petitioner submits that it is true that at the time of initial appointment in 1989 no selection procedure was gone into and he was appointed on the orders of the Regional Deputy Director of Education, Darbhanga vide Annexure-1. He submits that he continued as such on the post of Clerk on temporary basis. Thereafter, it was decided by the Department that cases of the incumbents continuing in the department on daily wages basis and/or temporary considered appointment on regular basis. Accordingly, a limited advertisement was made and applications were invited for consideration of the services of the petitioner and the like for the purpose. On submission of applications the cases were placed before the Divisional Establishment Committee and after due interview and selection the petitioner’s case was found to be fit for his appointment on - 3 - regular basis. Therefore, Divisional Establishment Committee which was the competent body in its meeting dated 18.12.1990 resolved to make regular appointment of petitioner on a class- III post of Clerk in the office of District Inspectors of School, Madhubani. Learned counsel for the petitioner submits that since the petitioner stood appointed on regular basis on the basis of selection and interview by a competent body i.e. the Divisional Establishment Committee, it is not open to the respondents question initial appointment of the petitioner and terminate his services on the basis of his initial appointment having been made in violation of procedure laid down for appointment on Class-III posts. Counter affidavit and supplementary counter affidavit has been filed in the case on behalf of the respondents. The respondents in their affidavits have admitted that the case of the petitioner was placed before the Divisional Establishment Committee and on the basis of interview and selection petitioner was appointed on regular basis. However, it is contended that since the initial appointment of the petitioner - 4 - was in violation of the procedure prescribed, his appointment on regular basis by the Divisional Establishment Committee was also bad and, therefore, the services of the petitioner has been rightly terminated. In support of his contention, learned counsel for the State relies upon a judgment of the Constitution Bench of the Hon’ble Supreme Court rendered in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors. reported in 2006 (2) PLJR 363 to contend that in paragraph 44 judgment, Constitution Bench has given liberty to the authorities to consider the case of regularization only of those incumbents who may be found to be continued on the basis of irregular appointment (and not illegal appointment). He further submits that since, admittedly, the initial appointment of the petitioner was illegal, his case could not be considered for regular appointment and, therefore, his services were rightly terminated. Learned counsel for the petitioner, in reply, has referred to the concluding part of paragraph 44 of the said judgment itself, which is as follows:- “We regularization, made, already clarify - 5 - subjudice, need not be reopened based on this judgment, but there should be no further bypassing of constitutional requirement regularizing making permanent, those not duly appointed constitutional scheme”. From the observations of the Constitution Bench as quoted above, it is clear that the cases which stood concluded by regularization or by a regular appointment by a competent body were not to be re-open, subject to the condition that the regularization and/or continuance was not on the basis of pendency of matters in the Court. From the observations made by the Constitution Bench as quoted above, it is clear that law laid down by the Constitution Bench had to be applied in cases where the regularization was still pending and it was not meant to be applied retrospectively and in case in which the final decision has already been taken by the authorities. In the present case, it is admitted position that as per the decision of a competent body, after interview and selection petitioner was finally appointed on regular basis. It is not the case of the respondents that by dint of any judgment of any Court of law or due to pendency of - 6 - any matter in Court petitioner was given that benefit or was continued in service. In the circumstances, in view of the said observations made by the Constitution Bench with regard to applicability of the law laid down in the Judgment, this Court has no option than to hold that after regular appointment of the petitioner pursuant to decision by the competent authority i.e. the Divisional Establishment Committee, it is not open to the respondents to terminate the services of petitioner on the ground of illegality in his initial appointment. In the circumstances, this Court finds that the Annexure-16 has been issued in the teeth of said observations of the Constitution Bench and is clearly unsustainable. In the result, this writ application is allowed, Annexure-16 is quashed and the petitioner is directed to be treated as continuing in service from the date of his appointment on regular basis pursuant to the resolution of the Divisional Establishment Committee with all consequential benefits. Arvind/ (J. N. Singh, J.)