IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.8925 of 2005
KESHAW PRASAD SINGH, SON OF SRI JANARDAN
PRASAD SINGH, RESIDENT OF VILLAGE-
PANCHGACHHIA, P.S. BIHRA, DISTRICT-
SAHARSA, PRESENTLY POSTED AS ASSISTANT IN
THE OFFICE OF SUB-DIVISIONAL EDUCATION
OFFICER, BIRPUR, SUPAUL, DISTRICT- SUPAUL.
... PETITIONER.
Versus
1. THE STATE OF BIHAR.
2. THE SECRETARY-CUM-COMMISSIONER,
HUMAN RESOURCES, DEVELOPMENT
DEPARTMENT, GOVERNMENT OF BIHAR,
PATNA.
3. THE DIRECTOR, SECONDARY EDUCATION-
CUM-SPECIAL SECRETARY, GOVERNMENT
OF BIHAR, PATNA.
4. THE DEPUTY DIRECTOR, SECONDARY
EDUCATION, GOVERNMENT OF BIHAR, NEW
SECRETARIAT, PATNA.
5. THE REGIONAL DEPUTY DIRECTOR OF
EDUCATION, KOSHI DIVISION, SAHARSA.
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12. 06.04.2011 Heard learned counsel for the petitioner and the
State.
2. This application was filed by the petitioner
initially for quashing of an order contained in letter dated
21.9.2004 issued by the Deputy Director Secondary
Education, Government of Bihar, contained in memo
no.1531, whereby he was directed to appear before the
respondent no.3 with all connected documents relating to
his appointment, so that genuiness of his appointment can
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be examined. During the pendency of the writ application,
the inquiry regarding genuineness of petitioner’s
appointment completed and order dated 6.3.2006
contained in memo no.394 was issued by the Director
Secondary Education, Government of Bihar terminating
the petitioner from his service. The impugned orders have
been challenged by the petitioner on the ground that it is
completely, unreasonable, illegal and discriminatory.
3. Initially, the petitioner was appointed against
leave vacancy on 7.9.1987 and worked on the post of clerk
at Nationalised High School, Jamhara, for three months.
Thereafter he was re-appointed against leave vacancy post
and continued up to 30.6.1988. A notice was published
relating to vacancies existing on Class-III posts in Koshi
Division by Regional Deputy Director of Education,
Saharsa on 6.1.1989. The petitioner also applied for the
post in response to this notice of vacancies. Petitioner was
asked to appear for interview before the Divisional
Establishment committee vide memo no. 7572 dated
25.6.1989 and the interview was held on 17.7.1989. The
Establishment committee resolved to pass necessary
orders relating to appointment of interviewed candidates in
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its next meeting but it was not done till 1991, as such
petitioner has to file C.W.J.C. No.10387 of 1992 in the
High Court for a direction to the respondents to issue
appointment letter in his favour. The writ application was
disposed of with an observation that in the event their
exists any vacancy and if the State thinks to fill up those
vacancies, the case of the petitioner shall be considered on
its merit, alongwith other eligible candidates, in terms of
aforementioned rules i.e. Bihar National Secondary
Education Rule-1983. The direction was also there to
consider the case of the petitioner sympathitically, giving
relaxation of age. In the light of the observation/direction
issued in the writ application the Regional Deputy
Director of Education made a correspondence with the
Director Secondary Education regarding re-appointmnent
of the petitioner as a retrenched employee. The Director
Secondary Education, vide letter contained in memo no.
417 dated 29.6.1993, directed for re-appointment of the
petitioner, as a special case, against any available
sanctioned vacancy in any of the offices of Human
Resources Development Department or in any educational
institution in the District. It was also specificaly mentioned
4
in this letter that the petitioner’s appointment will not be
considered as a precedence and his previous service will
not be counted for the continuity in service, and no
benefits accruing from the previous appointment will be
available to the petitioner. In the light of the direction of
the Director, Primary Secondary Education, an
appointment letter was issued in favour of the petitioner
and he joined in the office of Sub-divisional Education
Officer, Birpur, Supaul. The post on which the petitioner
joined was a sanctioned post and it was vacant.
4. Records connected with the appointment of
petitioner has been produced by the counsel apearing for
State, a letter issued by Regional Deputy Director, Saharsa
is the part of this record from which it transpires that
payment of salary started to the petitioner, subsequent to
the inquiry and verification of the legality of the
petitioner’s appointment and only on approval by the
Director (Secondary) Education.. Petitioner, thereafter,
continued on his post till 1997. The then Director
(Secondary) Education, while examining the genuiness
and legality of the appointment of another person also
examined the legality of petitioner’s appointment and
5
found that his appointment had been made on the post of
clerk in Sub-divisional Education Office, Birpur, without
following the proper prescribed procedure of appointment.
As the prescribed procedure of appointment in the circular
of Personal and Administrative Reforms Department had
not been followed, as such treating the appointment as
illegal, petitioner was terminated from his service, even
without issuing any show cause notice. The termination
order also challenged by the petitioner in C.W.J.C. No.
2541 of 1997, and the termination order was quashed vide
order dated 23.10.1997. The respondents were directed to
pass fresh order after a show cause notice to the petitioner.
The show cause notice was issued to the petitioner in the
light of the order passed in the writ applicaton and
thereafter the final order was passed, challenging which,
present writ application has been filed.
5. A counter affidavit filed on behalf of the State
is specific on this point that since the procedure prescribed
in the Personal and Administrative Reforms Department
circular was not followed in the appointment of the
petitioner as such his appointment was illegal. The
procedure as laid down in the Personal and Administrative
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Reforms Department letter no. 16441 dated 3.12.1980 is
that the vacancies must be advertised, panel be prepared,
following the rule of reservation only appointment letters
can be issued against the post advertised. Since, the
petitioner was appointed without following the procedure,
it was an illegal appointment and termination order passed.
6. Counsel for the petitioner, on the other hand,
submits that so far circular contained in letter no. 16441
dated 6.12.1980 of Personal and Administrative Reforms
Department is concerned, that has no application in the
matters of appointment, in the Regional offices of the
Education Department for valid appointments.
Appointments in the Regional offices of Education
Department has to be made following the statutory rules
framed by the State Government. The Rule prescribed that
a committee will be constituted under the statutory rules,
and on recommendation of such committee, appointment
is to be made. In the case of petitioner, admittedly the
Regional Level Establishment Committee had
recommended for issuance of appointment letter in favour
of the petitioner as well as others. They were interviewed
and subsequently as per the direction of the Director
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Secondary Education appointment letter was issued in
favour of the petitioner. Counsel for the petitioner further
submits that there is nothing to show that the appointment
letter issued in favour of the petitioner was a forged letter.
It is also not the case of the respondent that existing
vacancies were not available, and petitioners were not
interviewed. An advertisement was issued at the instance
of the Regional Deputy Director candidates were
interviewed by Establishment Committee, and resolution
had been taken for issuing necessary orders for
appointment of interviewed candidates. Since it was not
done, the petitioner moved before the High Court and the
writ application was disposed of with an observation that
the case of the petitioner should be considered
compoassionately. That compassion was shown by the
Director (Secondary) Education and as per his direction
his appointment letter had been issued. In this
circumstance, there was no reason for holding that
petitioner was appointed illegally, as procedures
mentioned in the circular of Personal and Administrative
Reforms Department were not observed.. This circular has
no application in appointments in the Regional Office of
8
the Education Department.
7. The petitioner has also alleged discrimination
on the ground that vide Annexure-16 petitioner as well as
Pancham Singh both were directed to be terminated from
the post of clerks. Petitioner and Pancham Singh both
challenged the termination order. Termination order of
Pancham Singh was quashed and he was re-instated on his
post. He died in harness and after the death of Pancham
Singh, his son was appointed on compassionate ground.
Since, Pancham Singh was reinstated, there was no reason
for coming to a different conclusion in the case of the
petitioner.
8. I find that procedure for legal appointment had
been followed halfway in the case of the petitioner.
However, there is nothing to show that any panel was
prepared, subsequent to the interview, but petitioner was
appointed as a special case by the Director Secondary
Education, in the light of the observation made in the writ
application. In this circumstance, after remaining of
service for so many years, there was no reason for
terminating the petitioner from his post. Petitioner is also
entitled for similar treatment as given to a similarly
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situated employee Pancham Singh. That aspect was also
not considered by the respondents while issuing of
termination order against the petitioner.
9. For all these reasons, I find that the impugned
order contained in Annexure-30 issued by the Director
Primary Secondary Education contained in memo no.394
dated 6.3.2006 is quashed.
10. This writ application is allowed. The
respondents are directed to reinstate the petitioner with all
consequential benefits.
Ibrar/- ( Mridula Mishra, J.)