JUDGMENT
Aftab Alam, J.
1. Heard Mr. Siya Ram Shahi, earned Counsel appearing in support of this writ petition and Mr. Shyama Prasad Mukherjee, learned Senior Counsel appearing for the respondent-Corporation.
2. The petitioner seeks to challenge an office order dated 17.1.2002 (Annexure-13) issued by the Administrator of the Bihar State Scheduled Caste Co-operative Development Corporation Ltd. By the impugned order two earlier orders are recalled; one of the two recalled orders is dated 25.2.1999 (Annexure 9-A) issued by the Secretary of the Corporation by which the services of the petitioner were regularized as Accounts Assistant in the Engineering Cell of the Corporation, retrospectively with effect from 6.2.1985. The other recalled order is dated 6.4.1999 (Annexure-10) issued by the Administrator, then in Office by which the petitioner was given promotion as Accountant and was posted in the Engineering Cell, South Bihar Division, Ranchi. As a result of the recall of these two orders, the petitioner reverts back to his earlier position of Accounts clerk in the work-charged establishment.
3. The facts of this case present a sorry state of affairs and it appears that some officials in the Corporation repeatedly acted in a manner not only expressly prohibited by law but also contrary to the orders passed by this Court. Facts of this case which are not in dispute are simple and can be stated as follows.
4. The petitioner was engaged to work as a daily wage clerk on 24.5.1983. A statement to this effect is made in the writ petition but no order of appointment or engagement is produced before the Court. Needless to say that the appointment was made without following the normal rules of recruitment. It is further stated by the petitioner that on 3.9.1983 an advertisement was issued by the Corporation for appointment of Accounts Assistants. In response to that advertisement, the petitioner made an application on 5.9.1983 but no appointment was ever made on the basis of that advertisement. On 6.2.1985, the petitioner was appointed as Accounts Assistant in the work-charged establishment and on 17.11.1990 an office order was issued (Annexure-4) by which the services of the petitioner were regularized and he was given promotion as Accountant.
5. It may be noted here that earlier to this on 9.2.1981 the State Government had issued a notification under Section 66-B of the Bihar Co-operative Societies Act, 1935 constituting a recruitment committee and laying down the mode of recruitment of personnel in the State level Co-operative Societies. It is thus evident that the order, dated 17.11.1990 regularizing the petitioner in service and giving him promotion as Accountant was issued by the Corporation in complete disregard of the notification, dated 9.2.1989 and in contravention of the provision of Section 66-B of the Act.
6. At this stage, it will be appropriate to have a look at Section 66-B of the Bihar Co-operative Societies Act, 1935 which is as follows:
66-B (1) Notwithstanding anything contained m this Act or Rules and bye-laws made thereunder, the State Government may, from time to time, by special or general order, determine the nature and number of posts to be created and the mode of recruitment of personnel by Co-operative Societies and prescribed among other things:
(1) The qualifications, age and experience,
(2) The pay scale and other other emoluments,
(3) The method of recruitment,
(4) The conditions of service, and
(5) The disciplinary procedure to be followed.
(2)Any appointment made in contravention of the order of the State Government under Sub-section (1) shall be void as if no such appointment ever existed and salary and other allowances paid if any, shall be recoverable under Section 40.
(Emphasis added)
7. It may also be noted here that the validity of the notification, dated 9.2.1989 was challenged before this Court in a batch of writ petition in which the constitutional vires of Section 66-B of the Act also came under question. A Bench of this Court of which I happened to be a member in Teja Prasad and Ors. v. The State of Bihar and Ors. 1992 (2) PLJR 568, found and held that the provisions of Section 66-B of the Act were constitutionally valid and the notification dated 9.2.1989 issued by the State Government under Section 66-B was also legal and valid.
8. It is in the light of this legal position that further developments in this case are to be viewed.
9. It appears that a number of employees of the Corporation were removed from service on the ground that their engagement/appointment was made in violation of the provisions of the notification, dated 9.2.1989. Some of the employees thus removed came to this Court in C.W.J.C. No. 4802 of 1991, challenging the Corporation’s decision to remove them from service. One of the grounds on which the action of the Corporation was assailed was that persons engaged much later than the petitioners in that case were retained in service while they were being thrown out. Though that writ petition failed, the submission made on behalf of those petitioners prompted this Court to direct the Corporation to terminate all appointments which were illegal and remove all persons whose case stood on the same footing as that of the petitioners in that case. The relevant portion of the order, dated 19.8.1993, passed in C.W.J.C. No. 4802 of 1991 is reproduced below.
Mr. Sahi, Counsel for the Corporation submitted that the Corporation has terminated the services of all the persons who had been appointed/regularised after the relevant date in breach of the rules. However, it is possible that some such cases may have been left out by inadvertence. If that be so, he states that services of such persons will also be terminated.
10. We dismiss this writ application with a direction to the respondent-Corporation to terminate all appointments which are illegal and whose cases stand on the same footing as that of the petitioners. This should be done within a period of six weeks from today. We may also clarify that we have not considered the illegal appointments, if any, made before the relevant dated i.e. 9.2.1989, since that is not the subject matter of controversy before us.
On the basis of the direction given by this Court the Corporation made a review of all cases of regular appointments and promotions, etc. In course of review it transpired that the regularisation in service of the petitioner and the promotion given to him as Accountant were also in violation of the resolution dated 9.2.1989. An order was then passed on 4.10.1993 by which the order dated 17.11.1990 was recalled. The petitioners and two others who were similarly affected by the order dated 4.10.1993 challenged it before this Court in C.W.J.C. No. 679 of 1994. That writ petition was dismissed by me by order, dated 7.12.1995, a copy whereof is brought on record as Annexure-A to the counter-affidavit filed on behalf of the Corporation. As a result, the petitioner was reverted as Accounts Assistant in the Work-charged establishment.
11. The action of the Corporation in regularizing the service of the petitioner and promoting him as Accountant, till this stage may be viewed and explained away as a result of mistake by the officials of the Corporation and their ignorance of the correct legal position. But, what followed after this stage would be difficult to explain away even on those grounds.
12. The petitioner having been reverted as Accounts Assistant in the work-charged establishment made a representation for regularisation and promotion. The representation is not on record and, therefore, it is not known what was said therein but it seems to have been suggested that the resolutions dated 9.8.1989 had remained a dead letter; that the committee constituted under that resolution never became functional and it did not consider the case for regularisation or promotion of the employees of the Corporation. On the petitioner’s representation, an order dated 25.2.1999 was issued by the Secretary, then in the office of the Corporation, by which the services of the petitioner were regularized on the post of Accounts Assistant retrospectively with effect from 6.2.1985. Shortly thereafter, the Administrator, then in the Office, issued orders, dated 6.4.1999 giving promotion to the petitioner as Accountant and posting him in the Engineering Cell, South Bihar, Ranchi. Whatever might be said about the earlier orders, these two orders i.e. the orders dated 25.2.1999 & 6.4.1999 appear to this Court to be completely unjustified. Before the orders were issued it had come to light, in the case of the petitioner himself, that his earlier regularisation in service and promotion were violative of the express prohibition imposed by Section 66-B of the Act and the consequent recall of the earlier orders was upheld by this Court. In those circumstances, this Court can see no justification for the issuance of the orders dated 25.9.1999 and 6.4.1999 respectively by the Secretary and the Administrator of the Corporation, then in the Office and to this Court it appears that each of them is liable to be proceeded against under Section 66-B(2) of the Act for recovery of the differential salary and allowances paid to the petitioner on the basis of those two orders.
13. It may be noted here that Mr. Siya Ram Shahi, earned Counsel for the petitioner tried to take a similar line before this Court. Mr. Shahi submitted that the Committee constituted under the notification, dated 9.2.1989 never functioned and never considered any case for recruitment regularisation or promotion of any employee of the Corporation. Therefore, he submitted, the notification, dated 9.2.1989 must be deemed to be a dead letter and in that view of the orders by which the service of the petitioner was regularized and he was given promotion as Accountant may not be interfered with. To my mind, the submission is misconceived. It was not for the Committee constituted by the resolution, dated 9.2.1989 to go all over the State making recruitment/promotions in the different State level Co-operative Societies. On the contrary, it was for the Corporation concerned to identify the posts needed to be filled up either by recruitment or by promotion and then to approach the officials/officers constituting the Committee in order to convene a meeting so that necessary recruitment, regularizations and promotions could be made. Instead of following this procedure, the previous Secretary and the Administrator of the Corporation tried to bye-pass the Committee and issued orders of regularisation and promotion on their own. These orders were, therefore, plainly in contravention of Section 66-B of the Act.
14. For all these reasons, I am of the view that the orders, dated 25.2.1999 and 6.4.1999 by which the service of the petitioner was regularized and he was given promotion were completely illegal and were rightly recalled by order dated 17.1.2000. This Court endorses and upholds the impugned order dated 17.1.2002 coming under challenge in this writ petition.
15. This, however, is not the end of the matter. A number of cases keep coming to this Court from the Corporation from which it appears that a large number of regularizations and promotions are made by one Administrators only to be undone by the successor Administrator. This naturally causes much heart burn to the employees concerned and gives raise to a lot of unnecessary and avoidable litigation. This Court feels that it is high time that the Administor should identify the need based posts in the Corporation and take steps to make suitable and valid appointments either by the direct recruitment or by regularisation or promotion of the earlier incumbents, as the case may be. The Administrator will undoubtedly do so in accordance with law and in the light of the resolution dated 9.2.1989. It is expected that all the need-based posts in the Corporation will be duly filled up expeditiously and preferably by the end of this year.
16. In the result, this writ petition is dismissed with the aforesaid observations and directions, but with no order as to costs.