IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4553 of 2004
SANJAY KUMAR SON OF SRI RAM PRAVESH THAKUR
OF VILLAGE & P.O. BALHA, P.S. CHAKSHERI, DISTRICT
SAMASTIPUR.
Versus
1. THE STATE OF BIHAR THROUGH THE CHIEF
SECRETARY, GOVT. OF BIHAR, PATNA.
2. THE HOME SECRETARY, GOVT. OF BIHAR, PATNA.
3. THE D.G. CUM I.G. OF POLICE, BIHAR, PATNA.
4. THE D.I.G. OF POLICE, TIRHUT RANGE,
MUZAFFARPUR.
5. THE SUPERINTENDENT OF POLICE, SITAMARHI.
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3 20/07/2010 Heard learned counsel for the petitioner and learned
counsel for the State.
Petitioner has been removed from service by order
dated 28.08.2003 passed by the Superintendent of Police,
Sitamarhi as contained in annexure-8. Background to the
present case is that the petitioner was one of the candidates
who responded to advertisement no. 1/93, participated in the
process of selection but was not appointed to the post. He
approached the then Director General of Police with a claim
that he was an athlete who had represented the State on many
occasions and, therefore, in special circumstance his case
ought to be considered for appointment. Application of the
petitioner made to the Director General of Police was
accepted by then Director General of Police and an
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endorsement was made for his appointment. That is how the
petitioner came to be appointed. Later on it transpired that
the authorities raised objection with regard to the
appointment made of the petitioner by the then Director
General of Police by giving a goby to the procedure and the
rules. He was given an opportunity to show cause as to the
basis of his selection for appointment. Except for what has
been recorded in the earlier part of the order he had nothing
to offer.
Learned counsel for the petitioner submits on the
basis of a decision rendered in the case of Kamal Chandra
Sah Vs. State of Bihar and others reported in 2006(3)
PLJR., 468 that an appointment made by the State
Government under special circumstance cannot be terminated
on the ground of violation of Police Manual.
Stand of the State is that the Director General of
Police has no special power under the Bihar Police Manual to
make appointment of constables. Rule 666(b) lays down the
procedure. It is a case where the petitioner failed to make it
to the list of selected candidates in the recruitment drive and
he came to be appointed on the personal intervention of the
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then Director General of Police on an endorsement made on
his application. It is categorical statement of the respondents
that no person with the height less than 175 cms. had been
appointed in that recruitment. Petitioner was not qualified to
be appointed but had been appointed on the intervention of
the Director General of Police by virtue of the post.
Law on this issue is also settled by a Bench of this
Court in the case of Sudhir Kumar Vs. State of Bihar and
others, reported in 2000(3) PLJR, 717 where it has been
held that no person, however, high he may be, has authority
to exercise if the power is not vested in him under the statute.
Nowhere in the Police Manual the Director General of Police
has been vested with the power to appoint a constable even if
it was a case of athlete having many certificates to his credit.
An appointment made in breach of the Rules and procedure
cannot be said to be an appointment in the eye of law. That
would per se violative of Articles 14 and 16 of the
Constitution of India. It is also not the case of the petitioner
that the recommendation made by the Director General of
Police for his appointment was accepted or approved by the
State Government. The fact that the State authorities raised
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objection on such appointment itself shows that decision to
appoint the petitioner was based on personal whims and
fancy of the Director General of Police rather than in due
consideration of such recommendation having been made by
the Director General of Police to the State authorities for
considering the case of the petitioner in special circumstance.
Petitioner has to go the way he came. No
interference is required in the decision contained in annexure-
8. This writ application has no merit. It is dismissed as such.
AMIN (Ajay Kumar Tripathi, J.)