Patna High Court
Rajeev Kumar Pandey vs The State Of Bihar & Ors on 6 April, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4438 of 2013
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Rajeev Kumar Pandey S/O Ram Chandra Pandey R/O Village- Ruphari, P.O And
P.S- Kapoor Pakri, District- East Champaran.
.... .... Petitioner
Versus
1. The State Of Bihar Through The Principal Secretary, Human Resources
Development Department, Government Of Bihar, New Secretariat, Patna.
2. Secretary (Secondary Education), Human Resources Development Department,
Government Of Bihar, New Secretariat, Patna.
3. Director (Secondary Education), Human Resources Development Department,
Government Of Bihar, New Secretariat, Patna.
4. Regional Deputy Director Of Education, Tirhut Division, Muzaffarpur
5. District Education Officer, East Champaran.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Shivendra Kishore, Sr.Adv.
For the Respondent/s : Mr. Manoj Kumar Ambastha, G.P.14
Mr. Subodh Kumar, AC to GP14
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 06 -04-2015
Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application reads
as follows:
"i. For quashing of office order bearing memo no. 9636
dated 12.10.2012 passed by respondent no.4, RDDE, Tirhut
Division, Muzaffarpur whereby and whereunder claim of the
petitioner for payment of salary has been rejected on the ground that
the appointment of the petitioner being illegal, since procedure
prescribed in Personnel and Administrative Department letter no.
16440 dated 3.12.1980 and departmental instruction issued from
time to time were not followed.
ii. For direction on the respondent to pay the arrear/
current salary with consequential benefits."
3. Mr. Shivendra Kishore, learned Senior counsel appearing
Patna High Court CWJC No.4438 of 2013 2
on behalf of the petitioner, while assailing the impugned order passed
by the Regional Deputy Director of Education (R.D.D.E.), Tirhut
Division, Muzaffarpur has concentrated on the aspect that if the
appointment of the petitioner on the post of Clerk has not been
cancelled as yet, the petitioner cannot be deprived payment of arrears
and current salary which the petitioner has not been paid ever since
March, 1997. In this regard he has relied on certain orders of this
Court to contend that the persons similarly situated alike the petitioner
are not only continuing in service but also are getting the benefit of
payment of salary though their appointment and posting was also
made in the same manner and by the same authority, namely,
R.D.D.E., Muzaffarpur. He has further submitted that the impugned
order denying the petitioner a place of posting and/or payment of
salary on the ground of non-observance of the procedure for
appointment prescribed by the Personnel and Administrative Reforms
Department in its circular No. 16440 dated 3.12.1980 cannot be made
applicable because the appointment of the petitioner was made not
only by the competent authority but also after following the
prescribed procedure of the Rules.
4. Expanding his submission he has also explained that the
R.D.D.E. has been vested power of making appointment on the post
of Clerk under 1974 Rules and therefore, when the appointment of the
Patna High Court CWJC No.4438 of 2013 3
petitioner was also made by the competent authority by following the
provisions of 1974 Rules and also after obtaining the name of the
petitioner from the Employment Exchange, the view taken by the
successor R.D.D.E. in either declaring the appointment of the
petitioner to be illegal or the petitioner being not entitled for a posting
as also payment of salary has to be declared as illegal by this Court
with the consequential direction for both posting and payment of
salary of the petitioner.
5. Per contra, learned counsel for the State, on the other
hand, has submitted that first of all this writ petition is not
maintainable because the petitioner for a similar relief of payment of
salary had moved this Court in C.W.J.C.No. 13969/2012 but the said
writ application was sought to be withdrawn without getting any leave
of this Court to move again for the same cause of action.
6. Learned counsel for the State in this regard has also relied
on paragraphs no. 7, 8, 9, 10 and 11 of the counter affidavit which
reads as follows:
"7. That accordingly the Regional Deputy Director Tirhut Division,
Muzaffarpur vide order dated 12.10.2012 (Annexure 1 of the writ
petition) rejected the claim of the petitioner on the ground that the
appointment of the petitioner was illegal, since the procedure
prescribed in personal Administration department letter no. 16440
dated 3.12.1980 and departmental Instruction issued from time to
time were not follows.
8. That in the present context it is most humbly submitted that since
the initial appointment of the petitioner on class III was an illegal
Patna High Court CWJC No.4438 of 2013 4
one in as such as the said appointment had been made without any
advertisement, neither any panel was made, nor any interview was
held.
9. That it will be equally pertinent to submit that the appointment of
the petitioner had not been made by the competent authority in as
such as the competent authority for appointment in the post of Clerk
in nationalized high school is the concerned District Education
Officer.
10. That there is no record available at the office of RDDE Tirhut
Division, pertaining to the appointment of the petitioner.
11. That law is well settled that benefit of a judgment is not extended
to a case automatically. In the present case the petitioner
approached the court after a long delay i.e. more than fourteen
years, to the first time in 2012 bearing CWJC No. 13969/2012 the
same may disentitle him to obtain discretionary relief under article
226 of the Constitution of India. Moreover in the writ application
there is no reasonable or plausible explanation of delay."
7. He has also submitted that the plea of the petitioner that in
his appointment provisions of 1974 Rules were followed by the
R.D.D.E., Muzaffarpur is itself self contradictory because if the
appointment letter of the petitioner is perused, the petitioner was
sought to be appointed and posted as a Clerk in a Nationalized High
School whereas 1974 Rules conferring power to R.D.D.E. to make
appointment on the post of clerk is confined for the administrative
offices of Education department. In this regard he has also explained
that the power of the R.D.D.E. under 1974 Rules is only confined to
making appointment on the post of Clerk for administrative offices of
R.D.D.E., District Education Officer, District Superintendent of
Patna High Court CWJC No.4438 of 2013 5
Education (District Programme Officer (Establishment), Sub-
divisional Education Officer and not for the Nationalized High
School, where the Clerks have a separate cadre and separate
appointing authority with altogether different procedure for
appointment as specifically laid down in Seva Sarta Niyamawali,
1983 framed under section 9 of the Bihar Non-Government Secondary
School (Management and Taking-Over Control) Act, 1981.
8. Learned counsel for the State has also submitted that as a
matter of fact the illegal appointment of the petitioner was
immediately noticed by the District Education Officer being the
controlling cadre authority of the post of Clerk in Nationalized High
Schools and the payment of salary of the petitioner was accordingly
stopped since the month of March, 1997 and in a series of enquiries
conducted thereafter it has been found that the appointment of the
petitioner as a Clerk in a Nationalized High School was itself illegal
and thus, the petitioner was neither allowed to continue in service nor
entitled for payment of salary. He has, therefore, summed up his
submissions that the petitioner has remained out of service and his
claim that he is working as a second Clerk in a Nationalized High
School would itself expose illegality in his appointment and
continuation in service because in no Nationalized High School there
can be ever posting of two Clerks, inasmuch as there is only one
Patna High Court CWJC No.4438 of 2013 6
sanctioned post of Clerk in each of the Nationalized High School.
9. Let it be noted that there is no denial by the petitioner to
the aforesaid averments made in paragraph no. 7 to 11 of counter
affidavit, copy whereof was also served on the learned counsel for the
petitioner on 16.9.2013. Thus, from the uncontroverted stand of the
respondents in the counter affidavit it becomes clear that there is no
record of the appointment of the petitioner available in the office of
the R.D.D.E., Muzaffarpur nor the appointment of the petitioner was
made on the post of Clerk in a Nationalized High School after
following the mandate of Article 14 of the Constitution of India,
inasmuch as no advertisement was issued and no process of selection
was undergone and to top it all the appointment of the petitioner on
the post of Clerk in a Nationalized High School was made by the
R.D.D.E., Muzaffarpur whereas such power of appointment of a clerk
in a Nationalized High School is vested in the District Education
Officer.
10. This Court in the light of the aforementioned
submissions as also perusing the materials on record in exhaustively
drafted writ petition would firstly take into account the plea of
appointment of the petitioner in the year 1995. The petitioner claims
that he was appointed by the R.D.D.E., Muzaffarpur vide his order
dated 26.6.1995 by following procedure of 1974 Rules. The 1974
Patna High Court CWJC No.4438 of 2013 7
Rules, however, do not authorize the R.D.D.D. to make appointment
in any Nationalized High School. The power of R.D.D.E. under 1974
Rules is confined to making appointment on the post of Clerk only for
the administrative offices of Education Department, such as own
office, office of D.E.O., the office of D.S.E., the office of S.D.E.O., or
any other administrative offices of the Education Department. To that
extent the Ministerial Appointment Rules, 1974 leave nothing for
speculation that the R.D.D.E. has no power to make appointment on
the post of Clerk in the Nationalized high School.
11. Rule 8 of Seva Sarta Niyamawali, 1983 in fact is the sole
repository of the power for making appointment on the post of Clerk
in a Nationalized High School, which reads as follows:
^^8- jktdh;d`r ek/;fed fo|ky;ksa ds f'k{kdsRrj deZpkfj;ksa dh
fu;qfDr@izksUufr ,oa vU; lsok 'krZ%& ¼1½¼d½ f'k{kdsRrj deZpkjh ¼prqFkZ
oxhZ; deZpkfj;ksa dks NksM+dj½ dh fu;qfDr jkT; ljdkj }kjk le;≤ ij
tkjh vkns'kksa ds v/khu ¼ns[ksa dkfeZd foHkkx dk i=kad 16440 fnukad 3-12-80
ifjf'k"V&3½ ftyk Lrj ij rS;kj fd;s x;s ,d iSuy ls ftyk f'k{kk
vf/kdkjh }kjk dh tk;xhA
¼[k½ fu;qfDr dh U;wure vgZrk ¼1½ eSfVzd mRrh.kZ vFkok tks jkT;
ljdkj }kjk le;≤ ij fu;r djsaA Vadu esa n{krk izkIr
mEehnokj dks izkFkfedrk nh tk;sxhA
¼x½ fu;qfDr dh izfdz;k%& inksa ds foKkiu rFkk fu;qfDr ds fy, iSuy
rS;kj djus dh izfdz;k ogh gksxh tks bl desVh ds vU; ljdkjh
deZpkfj;ksa ds fy, jkT; ljdkj }kjk le;≤ ij fofgr dh
tk;A
bu deZpkfj;ksa ds p;u ds fy, ,d lfefr gksxh] lfefr eas v|ksfyf[kr
O;fDr jgsaxs&
Patna High Court CWJC No.4438 of 2013 8
¼A½ ftyk f'k{kk inkf/kdkjh ¼AA½ ftyk fo|ky; fujhf{kdk ¼AAA½ ftyk ds
jktdh;d`r ek/;fed fo|ky; dk ,d iz/kkuk/;kidA
¼?k½ r`rh; oxhZ; f'k{kdsRrj deZpkjh ds in dh vgZrk j[kus okys
prqFkZ oxhZ; deZpkfj;ksa dh r`rh; oxZ esa fu;qfDr ds fu;e ,oa
izfdz;k ogh gksxh tks jkT; ljdkj@foHkkx }kjk le;≤ ij
cukbZ xbZ gS vFkok cukbZ tk;sxhA
¼M-½ r`rh; oxhz; f'k{kdsRrj deZpkfj;ksa dk ftyk lEoxZ gksxk vkSj
ftyk f'k{kk inkf/kdkjh ftyk Lrj ij fu;a=h inkf/kdkjh gksaxsA
¼2½ prqFkZ oxhZ; deZ;kjh dh fu;qfDr& ¼d½ prqFkZ ozxhZ; deZpkfj;ksa dh
fu;qfDr 16441 fnukad 3-12-80 esa fofgr izko/kkuksa ds vkyksd esa jkT;
ljdkj }kjk le;≤ in 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|ksfyf[kr gksxh %&
¼A½ mEehnokj LoLFk gksA
¼AA½ mEehnokj lkbZfdy pyuk tkurk gksA
¼AAA½ mEehnokj i<+uk&fy[kuk tkurk gksA
¼[k½ prqFkZ oxhZ; deZpkfj;ksa dk ftyk lEoxZ 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{kdsRrj deZpkfj;ksa dh fu;qfDr ds fy, U;wure vk;q ,oa lsok ls
fuo`fr 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
¼4½ fu;qfDr@izksUufr esa vkj{k.k&
f'k{kdsRrj deZpkfj;ksa dh fu;qfDr@izksUUkfr esa vkj{k.k laca/kh ljdkjh
uhfr ykxw gksxh ¼nsa[ks dkfeZd foHkkx dh ladYi la[;k 11601 fnukad 22-
10-82 ,oa la[;k 516 fnukad 15-12-82 ifjf'k"V&1 ,oa 2½**
12. In view of the aforementioned Rule 8 of 1983 Seva Sarta
Patna High Court CWJC No.4438 of 2013 9
Niyamawali this Court will have no difficulty in holding that the
claim of appointment based on his appointment letter dated 26.6.1995
is itself suggestive of the fact that the appointment of the petitioner
was void ab initio. Such appointment letter of the petitioner dated
26.6.1995infact reads as follows:
^^dk;kZy; {ks=h; f'k{kk mifuns'kd] frjgqr ize.My] eqtIQjiqjA dk;kZy;&vkns'k izeaMyh; LFkkiuk lfefr ds fu.kZ;kuqlkj Jh jktho dqekj ik.Ms;] firk Jh jkepUnz ik.Ms; xzke&:igjh] iks0&diwjidM+h] Fkkuk& fpjS;k ftyk&iwohZ pEikj.k dh fdlh ljdkjh lsok esa ugha gS dks fyfid ds in ij fofgr osrueku 1200&1800 esa vU; ns; HkRrk ds lkFk jktdh;d`r mPp fo|ky; <kdk AiwohZ pEikj.kA esa fyfid ds in ij ;ksxnku dh frfFk ls inLFkkfir fd;k tkrk gSA** g0@& {ks=h; f'k{kk mi funs'kd frjgqr ize.My] eqtIQjiqjA Kkikad 281 fu-dks- eqtIQjiqj] fnukad 26@6@95**
13. Let it be noted that pursuant to the aforementioned appointment of the petitioner on 26.6.1995 when he wanted to join the post of Clerk in the Nationalized High School, Dhaka in the district of East Champaran the Headmaster had not accepted the joining of the petitioner and for a period of nearly 18 months the petitioner remained without post, without work and without pay. The said R.D.D.E.. who had made an out and out illegal appointment of the petitioner on the post of Clerk in a Nationalized High School, by his letter dated 31.12.1996 had pressed for acceptance of joining of the petitioner as Patna High Court CWJC No.4438 of 2013 10 would be evident from the letter dated 31.12.1996 produced by the petitioner in Annexure 3, which reads as follows:
^^i=kad -9553- izs"kd%& johUnz jke] {ks=h; f'k{kk mi funs'kd] frjgqr ize.My] eqtIQijqA lsok esa] iz/kkuk/;kid] jktdh;d`r mPp fo|ky;] <kdk] AiwohZ pEikj.kA eqtIQjiqj] fnukad 31@12@96 fo"k;& ;ksxnku ds lEcU/k esA egk'k;] mi;qZDr fo"k;d vkids i=kad 67 fnukad 18-12-96 ds izlax esa vafdr djuk gS fd Jh jktho dqekj ik.Ms; fyfid dk inLFkkiu vkids fo|ky; esa fd;k x;k gS] ftuk ;ksxnku vHkh rd ugha gqvk gS] dks vfrfjDr fyfid ds in ij ;ksxnku djkosa ,oa vuqikyu izfrosnu rhu fnuksa ds vUnj v|ksgLrk{kjh dk;kZy; esa Hkstk tk;A buds osrukfn dk Hkqxrku ftyk fjfDr ds fo:n~/k mPp fo|ky; fljkSuk gS fjfDr ls dkxth inkLFkkiu ekurs gq, vius LFkkiuk ls fd;k tk;A fo'oklHkktu] {ks=h; f'k{kk mi funs'kd] frjgqr ize.My] eqtIQjiqjA Kkikad 9533 eqtIQjiqj] fnukad 31@12@96**
14. From reading of the aforesaid letter of the R.D.D.E., Muzaffarpur dated 31.12.1996 it becomes clear that not only joining of the petitioner pursuant to his appointment letter dated 26.6.1995 was not accepted but as a matter of fact there was no vacancy on the Patna High Court CWJC No.4438 of 2013 11 post of Clerk in the Nationalized High School, Dhaka. The very fact that the R.D.D.E., Muzaffarpur in his letter dated 31.12.1996 wanted joining of the petitioner to be accepted as Additional Clerk in the Nationalized High School, Dhaka and had directed for payment of salary against a vacant post of Clerk in another High School, Sirauna, would itself go to show that the petitioner was a blue-eyed boy of the R.D.D.E., Muzaffarpur who wanted the petitioner to be appointed and retained in service by hook and crook.
15. It is in this background that this Court will proceed to examine the claim of the petitioner for payment of salary, which according to him has not been paid from March, 1997. The question would be did he receive payment of salary for the period June, 1995 to December, 1996 even when his joining was not accepted in any school much less in Nationalized High School, Dhaka? Thus, it becomes clear that the payment of salary to the petitioner could not be made because his appointment was made by an incompetent authority and that too against an unsanctioned post of Clerk in the Nationalized High School, Dhaka.
16. The question, therefore, would be as to what benefit the petitioner could expect under such a rank illegal appointment? The petitioner in fact could not receive payment of salary from March, 1997 on account of strong objection of the District Education Officer, Patna High Court CWJC No.4438 of 2013 12 who was the competent authority for not only making appointment on the post of Clerk in the Nationalized High School but had also fund apparent illegality in the appointment of the petitioner. Such order dated 4.4.1997, Annexure 5, under which the petitioner for one reason or another had remained without payment of salary from the month of March, 1997 was never assailed by him before any forum save and except by way of moving this Court in C.W.J.C.No. 13969/2012, wherein he had come for the same relief for payment of his salary and to that extent paragraphs no. 24 and 25 of the writ application being relevant is quoted hereinbelow:
"24. That when no action was taken at the end of respondents by paying the arrear/ current salary, petitioner had to file writ application vide CWJC No. 13969/2012 for a direction on the respondents to pay arrear/ current salary with consequential benefits.
25. That vide order dated 22.8.2012 writ application was dismissed as withdrawn for pursuing departmental remedies."
17. The order of this Court dated 22.8.2012, however, had something more than what the petitioner has summed up in the aforesaid paragraph 25 of the writ application. Let it be noted that this Court did not grant leave to the petitioner to move the departmental authority for which leave was sought by the learned counsel for the petitioner in C.W.J.C.No. 13969/2012 as would be evident from the order dated 22.8.2012 in C.W.J.C.No. 13969/2012 which reads as Patna High Court CWJC No.4438 of 2013 13 follows:
" After some argument leave is sought to withdraw the application for pursuing departmental remedies. Having considered matters, the Court makes no observations with regard to the same even. The application is dismissed as withdrawn."
18. A bare reading of the aforementioned order will leave nothing for speculation that this Court was not at all satisfied with regard to the claim of payment of salary of the petitioner for which he had moved this Court after more than fifteen years of cause of action when his payment of salary has been withheld under the order of the District Education Officer dated 4.4.1997. The law even otherwise is well settled that when a writ application is withdrawn without liberty to move the Court for the same cause of action, the fresh petition by the petitioner is not maintainable. Reference in this connection may be made to the judgment of the Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & ors., reported in AIR 1987 SC 88, wherein the Apex Court had held that if permission to withdraw the suit or the petition with a liberty to institute a fresh suit or petition for the same cause of action is not accorded the filing a fresh writ petition would actually amount to abuse of the process of the Court as also its being against the public policy.
Patna High Court CWJC No.4438 of 2013 14
19. That would bring this Court to consider as to whether the petitioner had any fresh cause of action in view of the impugned order passed by the Regional Deputy Director of Education on 12.10.2012 after withdrawal of the writ application by him on 22.8.2012? The petitioner had in fact claimed that he had moved the departmental authorities for payment of his salary by approaching the office of the R.D.D.E., Muzaffarpur fromwhere he was appointed but then the same R.D.D.E. has again found the petitioner not entitled for payment of salary on account of his appointment itself being illegal. To that extent the impugned order of the R.D.D.E. dated 12.10.2012 is quoted hereinbelow:
^^{ks=h; f'k{kk mifuns'kd] frjgqr ize.My] eqtIQjiqj] dk dk;kZy;
dk;kZy; vkns'k Jh jktho dqekj ik.Ms; }kjk ekuuh; mPp U;k;ky;] iVuk esa nkf[ky lekns'k lafpdk la[;k 13969@2012 ds dze esa osru Hkqxrku lacaf/kr nkos dh leh{kk vkosnu }kjk lefiZr dkxtkrksa ds vk/kkj ij dh xbZA ftlls Li"V gS fd vkidh fu;qfDr esa dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds i=kad 16440 fnukad 03-12-80 esa fu:is.k fdz;kvksa dk ikyu ugha fd;k x;k gSA lkFk gh foHkkx }kjk le; le; ij fn;s x;s vkns'k dk Hkh ikyu ugha gqvk gSA vr% vkidh fu;qfDr voS/k jgus ds dkj.k vkids inLFkkiu rFkk osru Hkqzxrku vkfn nkos dks vLohd`r fd;k tkrk gSA g0@& {ksa=h; f'k{kk mifuns'kd frjgqr ize.My] eqtIQjiqjA Kkikad 1737 eqtIQjiqj] fnukad 12@10@2012** Patna High Court CWJC No.4438 of 2013 15
20. According to Mr. Shivendra Kishore, learned Senior counsel, this order dated 12.10.2012 has given a fresh cause of action to the petitioner and therefore, the petitioner despite withdrawing of his earlier writ petition will be entitled to file a fresh writ petition for adjudication as to whether his appointment was illegal or as to whether the decision taken for refusal of payment of salary and posting of the petitioner was justified?
21. In the considered opinion of this Court the answer to the aforementioned submission has to be again in negative. The petitioner has pursued the same cause of action despite even after not being given any leave by this Court in its order dated 22.8.2012 in C.W.J.C. No. 13969/2012 to move the departmental authority. The departmental authority in fact had again reiterated the old decision taken way back on 4.4.1997 for not making payment of salary of the petitioner and therefore, this Court is absolutely satisfied that if the petitioner has sought quashing of the aforementioned order with a consequential direction for payment of salary from the month of March, 1997 this writ petition virtually is for the same relief for which his earlier writ petition was dismissed as withdrawn without giving liberty to move this Court again for the same cause of action.
22. Mr. Shivendra Kishore, learned Senior counsel for the petitioner, has then tried to highlight the aspects on which the Patna High Court CWJC No.4438 of 2013 16 petitioner expects this Court to declare that the appointment of the petitioner was valid and as such, the petitioner was entitled for payment of salary. According to him, the appointment of the petitioner was made by the R.D.D.E., Muzaffarpur after obtaining the name from the Employment Exchange. First of all the order of appointment does not say so. Secondly, there is no proof of the Employment Exchange being ever approached by the R.D.D.E. for giving names of the eligible candidates. Thirdly, even after the names were allegedly sponsored from the Employment Exchange a process of selection was still required to be undergone but not a word has been said as to how the petitioner's selection was made even after his name being sponsored by the Employment Exchange. In fact there is also nothing on record to establish that the name of the petitioner was ever sponsored by the Employment Exchange.
23. As noted above, the R.D.D.E., Muzaffarpur was not even the appointing authority of the post of Clerk in the Nationalized High School and therefore, he could not have sent requisition to the Employment Exchange for soliciting the names of eligible candidates for making appointment on the post of Clerk in the Nationalized High School. Once this aspect becomes clear the effort of the petitioner and his learned counsel to equate his case with other cases on the ground that this Court had approved similar appointment of the R.D.D.E. Patna High Court CWJC No.4438 of 2013 17 made on the basis of requisition from the Employment Exchange will have no meaning because in the case of the petitioner there is nothing on record to show that his name was ever sponsored by the Employment Exchange or that his appointment was made by the competent authority.
24. In the cases referred to and different orders relied by Mr. Shivendra Kishore there is a specific finding of this Court that as a matter of fact those appointments were made on the post of Clerk by the R.D.D.E. for the administrative offices of the Education Department after soliciting the name from the Employment Exchange. Thus, merely because the petitioner has enumerated the names of other clerks appointed by the R.D.D.E. and has also referred to some of the orders of this Court will not put his case at par with other clerks appointed by the R.D.D.E. for administrative offices on the basis of requisition made through Employment Exchange. The right to equality under Article 14 of the Constitution of India is infact a positive concept and the same cannot be enforced in a negative manner. An illegality committed by an authority or even an incorrect order of court can never be perpetuated in exercise of power under Article 226 of the Constitution of India as was held by the Apex Court in the case of State of Bihar Vs. Upendra Narayan Singh and others reported in 2009(5) SCC 65 relevant part whereof reads as Patna High Court CWJC No.4438 of 2013 18 follows:-
"65. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.
67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order - Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another Patna High Court CWJC No.4438 of 2013 19 [(2000) 9 SCC94], Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] ."
25. As a matter of fact whatever may have said in the past with regard to employment on the basis of requisition from Employment Exchange has now been totally deprecated by the Apex Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty reported in 2011(3) SCC 436 wherein it was held as follows:-
"Appointment/employment without advertisement
35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees' Union v. Delhi Admn. [(1992) 4 SCC 99], State of Haryana v. Piara Singh [(1992)4 SCC 118, Excise Supt. V. K.B.N. Vishweshwara Rao [(1996) 6 SCC 216], Arun Tewari v. Zila Mansavi Patna High Court CWJC No.4438 of 2013 20 Shikshak Sangh [(1998) 2 SCC 332], Binod Kumar Gupta v. Ram Ashray Mahoto [(2005) 4 SCC 209], National Fertilizers Ltd. v. Somvir Singh [(2006) 5 SCC 493], Deptt. Of Telecommunications v. Keshab Deb [(2008)8 SCC 402], State of Bihar v. Upendra Narayan Singh [(2009)5 SCC 65 and State of M.P. v. Mohd. Abrahim.[2009)15 SCC 214])
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Article 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
(Underlining for emphasis)
26. Thus, in view of the law laid down by the Apex Court in the case of Mamta Mohanty (supra) this Court now cannot also issue a direction for payment of salary to the petitioner from March, 1997 specially when it has found the appointment of the petitioner to be rank illegal. Even this aspect of the matter relating to payment of salary to a person illegally appointed has been settled by the Full Bench of this Court in the case of Rita Mishra v. State of Bihar & ors., Patna High Court CWJC No.4438 of 2013 21 reported in 1987 PLJR 1090, which also stands affirmed by the Apex Court in the case of Vishwanatha Pillai v. State of Kerala & ors., reported in (2004)2 SCC 105, wherein it has been held as follows:
"15. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste.
In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by Patna High Court CWJC No.4438 of 2013 22 practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
16. In Ishwar Dayal Sah vs the State of Bihar, the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held: (Lab IC pp. 394-95, para 12) If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possible flow from such a tainted force. In such a situation, the question is whether the person concerned is at Patna High Court CWJC No.4438 of 2013 23 all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Art. 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and door is barred against him, the cloak of protection under Art. 311 is not attracted."
17. The point was again examined by a Full Bench of the Patna High Patna in the case of Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow it."
18. We agree with the view taken by the Patna High Court in the aforesaid cases.
19. It was then contended by Shri Ranjit Kumar, learned senior counsel for the Patna High Court CWJC No.4438 of 2013 24 appellant that since the appellant has rendered about 27 years of service the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission, as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands.
He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the Patna High Court CWJC No.4438 of 2013 25 basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud."
(Underlining for emphasis)
27. As a matter of fact this Court also does not find any error in the impugned order passed by the R.D.D.E., Muzaffarpur that the appointment of the petitioner was illegal on account of non- observance of Circular No. 16440 dated 3.12.1980. Let it be kept in mind that the petitioner was/is claiming appointment on the post of Clerk in a Nationalized High School and Rule 8 of the Seva Sarta Niyamawali, itself recognizes that circular by laying down that the procedure for appointment on the post of Clerk in a Nationalized High School has to be as per procedure laid down in the Government circular No. 16440 dated 3.12.1980. Thus, that circular of the Government dated 3.12.1980 also in view of Rule 8 of the Seva Sarta Niyamawali has acquired statutory status.
28. It has to be kept in mind that under circular of the State Government issued by the Administrative and Personnel Department I its letter no. 16440 dated 3.12.1980 a complete mechanism has been given as to how appointment against Class III post has to be made. As per that circular the District Magistrate has to act as a Nodal Patna High Court CWJC No.4438 of 2013 26 Officer and all the offices at the district level had to report their vacancies to the District Magistrate. Thereafter the District Magistrate had to issue an advertisement calling for application from all the applicants and after undergoing the process of selection and preparation of panel he is the Nodal Officer who had to allot Clerks for appointment to respective head of the department at the district level. This has been done only to eliminate arbitrariness and restraining all the District level officer in bestowing favour to their favourates in making appointment on Class III post.
29. Thus, when the R.D.D.E., Muzaffarpur in the impugned order has gone to hold that the appointment of the petitioner was not made as per the Government circular No. 16440 dated 3.12.1980 he has only said the obvious that the appointment of the petitioner is out and out an illegal appointment. This Court in fact also has not been provided by any material by the learned counsel for the petitioner to take a contrary view, inasmuch as it becomes admitted fact from perusal of the writ application that the appointment of the petitioner was made even without publishing of an advertisement in the newspaper much less undergoing process of selection in the manner prescribed in the Government circular No. 16440 dated 3.12.1980.
30. In view of the aforesaid discussion this Court will have no difficulty in reaching to the inevitable conclusion that the Patna High Court CWJC No.4438 of 2013 27 appointment of the petitioner was void ab initio on account of clear infringement of requirement of Articles 14 and 16 of the Constitution of India and was also made by an incompetent authority who had no power to maker appointment on the post of Clerk in a Nationalized High School and that such appointment of the petitioner was also made against an unsanctioned post of Clerk in Nationalized High School, Dhaka in the district of East Champaran. Thus this court will have no other option but to hold that on the basis of such rank illegal appointment the petitioner can neither claim payment of salary nor continuance in service.
31. In that view of the matter, this Court does not find any merit in this writ application and the same is, accordingly, dismissed. There would be however no order as to costs.
(Mihir Kumar Jha, J) PATNA HIGH COURT Dated 6th April, 2015 A.F.R./ Surendra U