IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3405 of 2004
SACHIDA NAND SHARMA S/O LATE JAGANATH RAI
R/O VILL- JABADAUL, PO-ASHRAM BRINDABAN,
PS- CHANPATIA, DISTT- CHAMPARAN--PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE DIRECTOR, SECONDARY EDUCATION, GOVT. OF BIHAR,
PATNA
3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION TIRHUT
DIVISION, DISTT-MUZAFFARPUR
4. THE DISTRICT EDUCATION OFFICER, WEST CHAMPARAN,
BETTIAH-----------------------RESPONDENTS.
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For the Petitioner: Mr. Rajendra Pd. Singh,
Senior Advocate, &
M/s R.K.Singh, & Navjot Yeshu
Advocates
For the Respondents: Mr. G.A.-5
———
6 30 /8/2010 Vide order dated 30.5.2001 issued by the Regional
Deputy Director of Education, Tirhut Division at Muzaffarpur
petitioner was removed from the post of clerk who was working in
the office of Sub-Divisional Education Officer, Bagaha in the
district of West Champaran. He has also directed recovery of
salary paid to the petitioner because his appointment was found to
be illegal, if not fraudulent as would be evident from annexure-1
to the writ application which is the impugned order.
The history behind the present litigation as per the
narration given in the writ application is that an advertisement was
issued in the news paper on 31.12.1992 by the Regional Deputy
Director of Education (R.D.D.E) inviting applications for
appointment on the post of clerk. As per the advertisement the
applications of only such persons was to be considered who were
registered with the Employment Exchange. Petitioner was an
applicant in response to the said advertisement which has been
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annexed as annexure-2 to the writ application.
As per a notice issued on the Notice Board of
the office of the R.D.D.E. all the applicants who fulfilled the
criteria of the advertisement were asked to appear for interview on
15.4.1993. Petitioner was selected and appointed as a clerk in
Government Teachers Training College, Dariyapur in the district
of West Champaran. Appointment letter dated 26.6.1995 has been
annexed as annexure-4.
Petitioner went to give his joining at the said
Teachers Training College but his joining was not accepted as
there was no vacancy in the said office. R.D.D.E adjusted and
posted the petitioner in the office of the Assistant Inspector, Basic
Education, Compact Area at Brindaban situated in the district of
West Champaran. The office order of such posting is annexure-5
to the writ application. Petitioner joined the office of Assistant
Inspector on 30.6.1995 and started working in the said institution.
According to the petitioner his service book was opened and
benefit like GPF, GLI etc. was extended to him and deduction
from his salary was being made.
On 8.8.1996 petitioner came to be transferred
again and was posted in the office of Sub-Divisional Education
Officer, Bagaha. He joined the transferred post at Bagaha on
17.8.1996 and started working at his new place of posting.
However from August, 1997 payment of his salary was stopped
according to the petitioner without any rhyme or reason. When the
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concerned respondents did not respond to his request and
representations he decided to file CWJC No. 11098 of 1998. That
writ was for a direction of payment of his salary. Before any order
could be passed in the writ application an office order no. 234
dated 18.5.1999 came to be issued by the District Education
Officer, West Champaran by virtue of which not only the
petitioner but some other persons similarly appointed came to be
removed from service on the ground that they were illegally
appointed. This order is annexure-8 to the writ application. The
order of removal however came to be stayed by the Director,
Primary Education, Bihar with a direction to the R.D.D.E.,
Muzaffarpur to enquire into the matter with regard to the so called
illegal appointment of the persons who were removed by the office
order contained in annexure-8. Earlier writ application filed by the
petitioner for payment of salary was withdrawn with liberty to the
petitioner that in case any kind of adverse order on the enquiry
conducted by R.D.D.E is passed, petitioners of that writ may move
this Court in accordance of law. Thereafter the impugned order
dated 30th May, 2001 has come to be passed which is annexure-1
to this writ application and under is challenge.
Submission of learned Senior counsel representing
the petitioner is that the appointment of the petitioner was made by
following the procedure and there was no legal infirmity as the
required process was followed by R.D.D.E. The letters of
appointment and transfer orders supports the petitioner. It is a
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circumstance to show that the petitioner had been appointed by the
authority by following the guidelines. He even worked at the
various places of transfer satisfactorily and salary was being paid
to him by the respondents till for the first time the order contained
in annexure-8 came to be passed. Raising doubts against the said
appointment now is misplaced.
It is also his case that in similar circumstance yet
another employee, namely, Ravindra Kumar Tiwary moved the
High Court and the High Court quashed the order of termination
as the respondents failed to satisfy the Court that there was any
wrong doing in appointment or the requisite rules were not
followed. The said order came to be affirmed by the Division
Bench in LPA as well as by the Hon’ble Supreme Court in SLA
(Civil) No. 6077 of 2001. Based on the reasoning given by the
learned Single Judge in the case of Ravindra Kumar Tiwary yet
another writ application was allowed which was the case of Anil
Kumar Jha & others (CWJC No. 4815 of 1999) and the same was
upheld by the Division Bench in LPA No. 371 of 2001, a copy of
the said order is annexure- 12 to the writ application. Petitioner
pleads that he should be similarly treated.
Counter affidavit on behalf of the respondents
State has come to be filed by R.D.D.E of Tirhut Division of
Muzaffarpur (respondent no.3). His stand in the counter affidavit
is that large scale illegal appointments came to be made on Class
III and Class IV posts at a given time frame without following the
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procedure for recruitment and in an illegal manner. When this fact
came to the knowledge of the Director, Secondary Education,
Bihar he ordered an enquiry into the bona fide of such
appointments and it was during the course of enquiry that the case
of the petitioner also came to be looked into. Appointments made
in the year 1995 by the then so called R.D.D.E. which included the
petitioner was without any advertisement, the so called interview,
preparation of a panel and so called roster clearance based on
reservation policy. The procedure for appointment has been laid
down in detail by the department of Personnel and Administrative
Reforms in its circular dated 3.12.1980.
Petitioner and some other persons were appointees
of one Bhola Ram who was the District Education Officer at
Muzaffarpur. For brief period of one and half months he was
made the Incharge R.D.D.E, with no formal posting as R.D.D.E.
and taking advantage of the short time frame, all these illegal
appointments came to be made by the said District Education
Officer.
It is the contention of the State that the so called
advertisement issued in annexure-2 is a sham because the said
advertisement was issued by the then R.D.D.E., Muzaffarpur,
namely, Sri Keshev Tripathi inviting applications for preparation
of a panel for appointment on the post of clerk against future
vacancies which were to occur in subordinate offices and
Government Project High Schools. But taking advantage of the so
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called advertisement which had been issued in some local news
paper, not even having any circulation worth the name, that too
published on 31.12.1992, the appointments in the year 1995 came
to be hurriedly made by said Bhola Ram. There are neither any
records available in the office of the deponent which would show
the process or the procedure followed in making such
appointments or any chit of paper to support the story of the
petitioner with regard to advertisement, interview, preparation of a
panel etc. etc. The stand of the petitioner that a notice in the local
office was fixed on 25.3.1993 fixing 15.4.1993 as the date of
interview makes the claim of the petitioner suspicious because if
the interview was held and panel prepared in the year 1993 then
how come the petitioner came to be appointed only on 26.6.1995
after lapse of more than two years of the said interview. The
validity of a panel is for a year. Therefore the claim of the
petitioner that the appointment made in the year 1995 was based
on the interview held in the year 1993 is also a circumstance
which casts serious doubt about the validity of the appointment. In
fact, taking advantage of the earlier advertisement made for
Project Schools the said Bhola Ram had made these appointments
illegally when he was asked to officiate as R.D.D.E. for a month
and half.
It was in this circumstance that the petitioner was
issued notice and he was directed to produce all supporting
evidence and materials before the R.D.D.E. on various dates fixed.
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Petitioner avoided appearing before the authority from May 2000
to October 2000. Finally 6.11.2000 was fixed on the request of the
petitioner to place his case but even on this date he chose not to
show up. Based on the show cause and the documents annexed by
him the respondents came to a considered opinion that the
petitioner was not legally appointed on the post and therefore the
order of termination contained in annexure-1 came to be issued.
The respondents have done no wrong in removing an employee
who has been illegally appointed by a person not even competent
to do so.
Learned counsel for the State has relied on the
order passed in LPA No. 74 of 2006 which is dated 31.8.2009. In
identical situation the matter was gone into deeply by learned
Division Bench and taking note of various orders passed by the
High Court in some of the cases including the case of Ravindra
Kumar Tiwary it held that the order of dismissal by the
respondents was not worthy of interference as there is
circumstance to show that the appointments were made illegally
by fraudulent means and order of dismissal passed in such
circumstance did not merit interference.
Instances of illegal appointments having been
made by certain persons working in the Education Department and
posted in the field, is not new in the State of Bihar. There are
many instances of such kind which had come to the notice of the
High Court in the litigations brought before it. Such appointments
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have been made for consideration and by giving complete go bye
to all procedures established in this regard. There have been
instances where based on pleadings of such cases Courts have
intervened but the question which still remains is whether the
Court ought to take a humanitarian consideration in the matter of
such appointments even when it is prima facie shown that the
method or methodology adopted in such appointments is not
above board. It is not the duty of the High Court to come to the
rescue of such persons who have gained employment in active
league of the persons who make such illegal appointments and
burden the State with such kind of employees by their
continuance.
Further the present writ application is not one of
those cases where the petitioner has worked for many a decades
and the order of removal was sought to be passed on the ground of
illegal appointment at a belated stage. The existence of the
petitioner under the State lasted only between 26.6.1995 till
30.5.2001, besides this the appointment of the petitioner came
under clout when he came to be removed in the year 1999 itself
and when his salary was stopped in the year 1997.
The so called assertion of the petitioner that the
process of selection and appointment was adopted by the erstwhile
R.D.D.E. stands belied in view of the narration of facts and events
made in the counter affidavit of the State. If the above facts are
further read in the light of the decision rendered in LPA No. 74 of
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2006, a copy of which is on record, there is no occasion for this
Court to interfere with annexure-1.
This writ application is dismissed being devoid of
merit.
RPS (Ajay Kumar Tripathi, J.)