DAYANAND PRASAD YADAV v. THE STATE OF BIHAR

Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 3 jkT; ljdkj@foHkkx }kjk le;&le; ij cukbZ xbZ gS vFkok cukbZ tk;sxhA …M-½ r`rh; oxhZ; f”k{kdsrj deZpkfj;ksa dk ftyk lEoxZ gksxk vkSj ftyk f”k{kk inkf/kdkjh ftyk Lrj ij fu;a=h inkf/kdkjh gksaxsA …2‰ prqFkZ oxhZ; deZpkjh dh fu;qfDr %& …d‰ prqFkZ oxhZ; deZpkfj;ksa dh fu;qfDr 16441 fnukad 3-12-80 esa fofgr izko/kkuksa ds vkyksd esa jkT; ljdkj }kjk le;&le; ij tkjh vkns”kksa ds v/khu ¼ns[ksa dkfeZd foHkkx dk i=kad 16441 fnukad 3-12-80 ifjf”k’V&4½ rS;kj fd;s x;s iSuy ls iz/kkuk/;kid }kjk dh tk;sxhA prqFkZ oxhZ; deZpkjh dh fu;qfDr ds fy, U;wure ;ksX;rk v/kksfyf[kr gksxh%& …i‰ mEehnokj LoLFk gksA …ii‰ mEehnokj lkbZfdy pykuk tkurk gksA …iii‰ mEehnokj i<+uk&fy[kuk tkurk gksA ¼[k½ prqFkZ oxhZ; deZpkfj;ksa dk ftyk lEcxZ gksxkA ftyk f”k{kk inkf/kdkjh buds fu;a=h inkf/kdkjh gksaxsA izoj dksfV esa ;fn dksbZ in gks] rks ftyk f”k{kk inkf/kdkjh }kjk izksUufr mDr lEoxZ ls nh tk ldsxhA ¼3½ f”k{kdsŸkj deZpkfj;ksa dh fu;qfDr ds fy, U;wure vk;q ,oa lsok ls fuo`fŸk dh mez ogh gksxh tks ,sls vU; led{k ljdkjh lsodksa ds fy, fu/kkZfjr gksxhA ljdkjh lsok esa fu;qfDr dh vf/kdre vk;q {kkafr dk vf/kdkj lEoxZ ds fu;a=h inkf/kdkjh dks gksxkA …4‰ fu;qfDr@izksUufr esa vkj{k.k %& f”k{kdsŸkj deZpkfj;ksa dh fu;qfDr@izksUufr esa vkj{k.k laca/kh ljdkjh uhfr ykxw gksxh …ns[ksa dkfeZd foHkkx dh ladYi la[;k 11601 fnukad 22-10-82 ,oa la[;k 516 fnukad 15-12-82 ifjf”k’V& 1 ,oa 2‰ As would be evident in the statutory Rules that there is a provision of making appointment as per the Government resolution no. 16441 dated 03.12.1980, which was made part of statutory rule being Appendix-IV to such Rules. Therefore, appointment of the petitioner made by the Headmaster of the School by holding his own Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 4 interview and without advertising the post in the newspaper cannot clothe petitioner with any benefit much less make his appointment legal. As a matter of fact, the petitioner’s such illegal appointment made on 28.01.1991 under an appointment letter reading as follows:- iz/kkuk/;kid usg: mPp fo|ky; <ksycTtk …Hkkxyiqj‰ dk;kZy; vkns’k ekuuh; ftyk f’k{kk inkf/kdkjh] Hkkxyiqj ds i=kad&30 fnukad 1-1-91 ds vkyksd esa xfBr p;u lfefr }kjk vuq’kaflr vH;FkhZ Jh n;kuUn izlkn ;kno dks jkT; ljdkj }kjk fofgr osrueku 775&12&955&14&1025 :i;s esa vkns”kiky ds in ij fu;qDr djrs gq, fo|ky; esa ;ksxnku dh frfFk ls inLFkkfir fd;k tkrk gSA tu izek.k i=ksa ds vk/kkj ij fu;qfDr dh xbZ gS ;fn fu;qfDr ds ckn os xyr izekf.kr gksaxs rks fu;qfDr lekIr dj nh tk;sxhA fu;qfDr i= izkfIr ds 7 fnuksa ds vUnj ;ksxnku ugha djus ij fu;qfDr Lor% jn~n ekuh tk;sxhA being itself illegal and in teeth of the statutory Rules, the same was cancelled by an order dated 29.11.1997 passed by the Regional Deputy Director Education, Bhagalpur Division, wherein, it was held as follows:- Jh n;kuUn izlkn ;kno] vkns”kiky usg: mPp fo|ky; <ksycTtk …Hkkxyiqj‰ ls bl dk;kZy; ds i=kad 5540 fnukad 4-10-97 ds }kjk dkj.k i‘PNk djrs gq;s fu;qfDr i= ,oa rRlaca/kh dkxtkrksa dh ekax dh x;hA buds laca/k esa lefiZr dkxtkrksa ,oa fu;qfDr dh tkap ls Li’V gksrk gS fd Jh ;kno dh fu;qfDr voS/k ,oa tkylkth ds :i esa fcuk dkfeZd ,oa iz”kklfud lq/kkj foHkkx ds fu;eksa dks ikyu fd;s fu;qDr fd;k x;k gSA lkFk gh Jh ;kno u rks fu;ekuqlkj ftyk inkf/kdkjh }kjk la/kkfjr if={kd lwph esa vkSj u rks vUrohZ{kk esa lfEefyr gq;s vkSj u rks LFkkiuk lfefr }kjk gh fu;qDr fd;k x;k gSA vr,o budh fu;qfDr izFke n`’V voS/k ,oa tkylkth ds rgr izekf.kr gksus ds QyLo:i rRdkyhu izHkko ls budh lsok lekIr dh tkrh gSA Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 5 The said order of termination of service of the petitioner dated 29.11.1997 was assailed by the petitioner before this Court, in C.W.J.C No. 8213 of 1999 and the writ application was allowed in the following terms:- “The order (Annexure-1) shows non-application of mind and as it records a finding into the alleged forgery of the documents without undergoing a detailed enquiry, the order cannot be allowed to stand. It deserves to and is accordingly quashed. Govt./Personnel enquiry The respondents are, however, given liberty to issue further notice to the petitioner that they propose enquiry/a detailed appointment of the petitioner and that whether the circulars of the & State Administrative Reforms Department were observed or not. The petitioner would be entitled to submit his show cause, inform the authorities that on the date of his appointment circulars issued by the Personnel & Administrative Reforms Department applicable appointment was genuine. In case the petitioner raises his disputes then a regular enquiry into the matter would be made, proper opportunity would be given to the petitioner and after hearing him, a final finding authorities. recorded The petitioner, to extent indicated above, is allowed. As the petitioner has been terminated from services, he is hereby directed to be reinstated. The salary for the period between date of termination till date, shall be subject to the final outcome of the enquiry, if the same is proposed within four months from today. Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 6 Thereafter the impugned order was passed after giving show cause notice to the petitioner on

25.05.2004, and in the impugned order it was held that the prescribed procedure for selection and appointment on the post of Peon in nationalized High School was not followed and as such his appointment was illegal. This order of termination of service of the petitioner dated

11.12.2004 was assailed before this court in C.W.J.C No. 4461 of 2005 and the counsel for the petitioner had withdrawn the writ application after some arguments in order to enable the petitioner to file statutory appeal. Thus in view of the order of this Court dated 27.06.2006 passed in C.W.J.C No. 4461 of 2005 when the petitioner had filed an appeal before the Director of Secondary Education, has passed the appellate impugned order dated 03.11.2006, wherein, it has been held as follows:- fcgkj jktdh;d`r ek/;fed fo|ky; ¼lsok “krZ½ fu;ekoyh 1983 dh dafMdk&8 esa ;g izko/kku gS fd jktdh;d‘r ek/;fed fo|ky;ksa esa prqFkZ oxhZ; deZpkfj;ksa dh fu;qfDr dkfeZd foHkkx ds i= la[;k 16441 fnukad 2-12-90 esa fofgr izko/kkuksa ds vkyksd esa jkT; ljdkj }kjk le; le; ij tkjh vkns”k ds v/khu rS;kj iSuy ls iz/kkuk/;kid ds }kjk dh tk;sxhA dkfeZd foHkkx ds mDr ifji= esa ;g izko/kku gS fd prqFkZ oxhZ; inksa ij fu;qfDr gsrq mEehnokjksa dh lwph ftyk Lrj ij ,d lfefr xfBr gksxh ftlds v/;{k ftyk inkf/kdkjh ls fu;qfDr inkf/kdkjh }kjk fu;qfDr fd;s tkus dk izko/kku gSA vkosnd dh lquokbZ ,oa buds }kjk izLrqr vH;kosnu rFkk lk{;ksa ,oa vU; i{kksa }kjk miLFkkfir rF;ksa ls Li’V gksrk gS fd dkfeZd ,oa iz”kklfud lq/kkj foHkkx ds mDr ifji= esa fd;s x;s izko/kkuksa ds foijhr iz/kkuk/;kid }kjk p;u dh izfdz;k iwjh dh x;h ftlds vk/kkj ij vkosnd fu;qDr gq, Fks] dks fu;ekUrxZr ugha ekuk tk ldkA vkosnd dh fu;qfDr ,oa dh x;h dkjZokbZ iz/kkuk/;kid }kjk Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 7 vfu;fer ,oa vukf/kd`r :i ls dh xbZ Fkh ftls ftyk f”k{kk inkf/kdkjh ds }kjk vuqeksfnr djuk Hkh vfu;fer gksus ds dkj.k vkosnd dk iwoZinLFkkiu dk nkok dk vkSfpR; ugha gSA vr% mDr foospuk ls Li’V gS fd vkosnd dh fu;qfDr fof/kor izfdz;k dk ikyu dj iwjh ugha gqbZ Fkh] ds dkj.k fu;qfDr vfu;fer ekurs gq, iquZLFkkiu ds nkos dks vLohd‘r fd;k tkrk gS vxj rRdkyhu ftyk f”k{kk inkf/kdkjh ,oa iz/kkuk/;kid lsok esa gS rks muds fo:) Hkh dkjZokbZ dh tk;A g0- ¼funs”kd ek-f”k-‰ fcgkj 3-11-2006 Kkikad 931 fof/k iVuk fnukad Counsel for the petitioner does not dispute all these facts but he is of the view that as this Court in few cases has interfered with the order of termination made in the Bhagalpur district itself, even when those appointments were illegal, the petitioner will be entitled for the same relief of reinstatement in service. In this regard, he has referred to the order dated 11.01.2000 passed in C.W.J.C No.5332 of 1998 (Arbind Kumar vs The State of Bihar & Ors). From the reading of the text of the order in the case of Arbind Kumar(supra), it would be clear that Arbind Kumar was a class-III employee and his appointment therefore, was cancelled on the ground of misappropriation of Government fund as also his appointment being illegal and forged. That order will not be applicable in the case of the petitioner, who is a class-IV employee and governed by the statutory Rules i.e Sewa Sart Niyamawali 1983. Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 8 The reliance placed by learned counsel for the petitioner on an order passed in L.P.A No. 1560 of 2000(Bipin Kumar Baidya vs The State of Bihar & Ors) is also wholly misplaced. In the case of Bipin Kumar Baidya, number of persons were terminated by a common order dated 14.05.1997 and the same was quashed in C.W.J.C No. 6183 of 1997 in cases of other persons, but in the case of Bipin Kumar Baidya that order was not followed and in fact Bipin Kumar Baidya had withdrawn his writ application on the assurance of the concerned District Education Officer that if he would withdraw his writ application, he would be reinstated in service. It is said that Bipin Kumar Baidya withdrew the writ application and approached the District Education Officer but he was not reinstated in service. Thereafter, another application C.W.J.C No. 5825 of 1999 assailing the order dated 14.05.1997, which was dismissed by the learned Single Judge and also by a Division Bench of this Court in its order dated

30.11.2000 passed in L.P.A No. 1560 of 2000, Bipin Kumar Baidya had thereafter moved the Apex Court in Civil Appeal No. 2525 of 2002 and the Apex Court had remitted the matter back to this Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 9 Court for reconsidering the grievance of Bipin Kumar Baidya on the special facts that the same impugned order had been quashed in the case of others. As a matter of fact, it was in these circumstances that by an order dated 27.08.2004 in the case of Bipin Kumar Baidya, his L.P.A No. 1560 of 2000 was allowed with a direction for reinstatement in service as also payment of salary from the date of filing of the two writ applications i.e. 03.06.1999. This Court however fails to understand as to how the benefit of this order in the case of Bipin Kumar Baidya can be given to the petitioner who was never terminated by the order dated 14.05.1997. Nothing has been brought on record to show that in what way and in which manner, the appointment of Bipin Kumar Baidya was made and therefore, merely because he was reinstated in service, everyone terminated in the Bhagalpur district can not be reinstated in service. It has to be kept in mind that these two orders which have been now relied on by the learned counsel for the petitioner i.e. the order dated 11.01.2000 passed in the case of Arbind Kumar (supra) and the order dated

27.08.2004 passed in the case of Bipin Kumar Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 10 Baidya (supra) though are prior to the date of impugned orders passed in the case of the petitioner, they were never placed before the fact finding Authority, the District Education Officer and the Director of Secondary Education. Such orders, therefore, cannot be now relied by the petitioner in the first instance before this Court. Learned counsel for the petitioner has also relied on an order of this Court dated

05.07.2007 passed in C.W.J.C No. 8577 of 2001 (Arun Kumar Sah Vs. State of Bihar and others), wherein, the learned Single Judge had followed the ratio in the case of Bipin Kumar Baidya (supra). From a bare reading of the said order it would transpire that the petitioner Arun Kumar Sah was a clerk whose services were terminated initially by the same order dated

04.05.1997 by which the services of Bipin Kumar Baidya was terminated. It was in these circumstances, this Court had followed the decision of the Division Bench in the case of Bipin Kumar Baidya(supra) in the case of Arun Kumar Sah(supra). This Court however has found no parity or similarity in the case of the petitioner with that of Bipin Kumar Baidya and Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 11 thus no useful purpose would be served in referring to the consequential order dated

26.06.2008 passed in L.P.A No. 985 of 2007 in the appeal preferred by the State of Bihar against the order dated 05.07.2007 passed in C.W.J.C No. 8577 of 2001 (Arun Kumar Sah vs The State of Bihar & Ors) nor its affirmance by Apex Court in order dated 27.1.2009 in Special Leave Petition by the Apex Court in C.C No. 733 of 2009 (S.L.P --of 2009). For the same reason, this Court would find no merit in the submission of learned counsel for the petitioner who has relied on the order dated 07.12.2009 passed in C.W.J.C No. 13564 of 2006 (Smt. Anjani Kumari Vs The State of Bihar & Ors), inasmuch as, from the reading of the aforesaid order it becomes clear that she was also terminated by the same order dated 14.05.1997 by which Bipin Kumar Baidya and Arun Kumar Sah and Others were terminated. In those circumstances, the reinstatement of those persons terminated on 14.05.1997, as by different judicial orders referred above cannot be made applicable to the facts of the case of the petitioner. The petitioner was never terminated by order dated 14.05.1997 and as such he would not be entitled to claim such relief. Patna High Court CWJC No.18906 of 2008 (02) dt.25-04-2012 12 That being so, this application is devoid of any merit and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J)