Vijay Kumar Prasad v. The State Of Bihar & Ors.

Appearance : For the Petitioner/s : Mr. Prabhakar Singh For the Respondent/s : Mr. Manoj Kr. Ambasta Gp14 CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 4 03-12-2013 Heard learned counsel for the petitioner as well as learned counsel appearing on behalf of the State. The petitioner prays for setting aside the order contained in memo no. 134 „P‟ dated 27.5.2008 whereby the three men high level committee rejected his claim to reinstate him in service. The petitioner was duly registered with Employment Exchange, Gopalganj. He was appointed on Class III post in Education Department in Saran division vide memo no. 138 dated

25.2.1992 which was approved by the Divisional Level Establishment Committee in proceeding held on 2.3.1992. He Patna High Court CWJC No.489 of 2011 (4) dt.03-12-2013 submits that he was duly appointed as per rules framed in 1974 for constitution of cadre, appointment, promotion and transfer of non- gazetted employees framed under Article 309 of the Constitution of India. One Birendra Prasad challenged the appointment of the petitioner and others vide CWJC No. 6456/1992. The writ petition was dismissed on 11.12.1992 with a direction that appointment made vide Annexure 23 series of the writ petition would come to an end within six months and liberty was granted to make regular appointment as per procedure. In the light of the direction of this court, the services of petitioner and others were terminated. The petitioner and others challenged the order of termination vide CWJC No. 4709/1993. In the counter affidavit filed in the said case, the respondents admitted that the service of the petitioner was approved by the Divisional Establishment Committee as per the rules of 1974 and 1980. One Anil Kumar whose service was also terminated in the light of direction of this court noted above, challenged the order of termination vide CWJC No. 6260/1993 successfully. In the light of the order passed in the case of Anil Kumar, the petitioner was also reinstated on the post of Clerk by office order contained in memo no. 3578 dated 19.10.1993 of Regional Deputy Director of Education, Chapra. Patna High Court CWJC No.489 of 2011 (4) dt.03-12-2013 The petitioner‟s service was terminated on 30.1.1999 by Regional Deputy Director of Education, Saran (Annexure 6). The petitioner challenged his termination vide CWJC No. 2787/1999. The other employees whose services were terminated too challenged the same in other writ petitions. The order of termination was set aside by order dated 26.3.1999 in terms of order dated 8.3.1999 passed in CWJC Nos. 328 and 403 of 1998. In the light of order dated 26.3.1999 passed in CWJC No. 2787/1999,the respondents issued show cause and after hearing the petitioner, again terminated his service vide order dated 7.7.2000. The petitioner again challenged the same vide CWJC No. 6707/2000 which was allowed on 31.8.2001. The petitioner contended it was wrongly represented in CWJC No. 4456/1992 that he was employed as an stop gap arrangement. The respondents preferred LPA No. 808/2002 and the matter was remitted to three men high level committee in the light of order passed in State of Karnataka vs. Uma Devi, (2006) 4 SCC

1. The three men committee rejected the claim for regularization vide order dated 27.5.2008 which is impugned in this writ petition. The respondents rejected the claim of the petitioner on the following grounds: (a) There were no roaster clearance and reservation Patna High Court CWJC No.489 of 2011 (4) dt.03-12-2013 rules were not followed in the appointment of petitioner. (b) There were no advertisement against sanctioned post. (c) The appointment of the petitioner was not made according to the circular No. 441 dated 3.12.1980 issued by Personnel and Administrative Department. The petitioner states that his case is similar to that of Anil Kumar whose service was also confirmed by the Divisional Establishment Committee vide proceeding dated 3.3.1992 contained in Annexure 2. Counsel for the petitioner submits that the said Anil Kumar moved this court in CWJC No. 17887/2008 against his termination which was allowed vide order dated

3.8.2010. The relevant extract of the order is quoted here-in-below: “A litigant coming to this court is confronted with issues of constructive res judicata. He is required to raise all issues in one writ application. He cannot be permitted to file successive writ applications each time he realizes that he had missed out a ground. This principle is based on the premise that no one should be vexed more than once for the same thing. This principle shall apply with equal force in converse to the respondents. All objections with regard to an appointment had to be taken by them at the very initial stage. Being the Government, there has to be a finality and certainty to their actions. They cannot be permitted to wake up in any fits and starts from their stupor and claim to be wiser subsequently. The officials of the Government contesting litigation at the tax payers‟ expense cannot subject the petitioner to repeated harassment of successive litigations to be borne by him from his own coffers, especially when he has more than one order in his favour already. “The impugned order dated 19.4.2008 is therefore not sustainable. It is accordingly set aside. Patna High Court CWJC No.489 of 2011 (4) dt.03-12-2013 “The writ application stands allowed.” The L.P.A. No. 332/2011 preferred against the said order was also dismissed vide order dated 22.2.2011. In the said case, the State counsel had argued that the appointment of the petitioner was in contravention of Articles 14 and 16 of the Constitution. The State, however, has tried to controvert the plea of the petitioner that his case is similar to that of Anil Kumar. In the back ground of the facts noted above, I am inclined to remit the matter to the Director, Secondary Education, Bihar, Patna to examine whether the case of the petitioner is similar to that of Anil Kumar, who would consider the same without being influenced by the impugned order of three men committee. In case the Director, Secondary Education finds the case of the petitioner to be similar to that of Anil Kumar, he would be entitled to similar relief as granted to the later in CWJC No. 17887/2008, affirmed in LPA No. 332/2011. This writ petition is, thus, allowed to the extent mentioned above. (Samarendra Pratap Singh, J) haque/-