Jharkhand High Court
Brajesh Kumar Singh With Sashi Bhushan ... vs State Of Bihar And Ors. on 6 April, 2001
Equivalent citations: [2001(90)FLR618], 2002 LAB. I. C. 280, 2001 AIR - JHAR. H. C. R. 244, (2002) 2 SCT 472, (2001) 90 FACLR 618
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In all these four writ applications the petitioners have challenged the order dated 14.2.1997 issued by respondent No. 4, Regional Director. Animal Husbandry Department, Ranchi whereby the services of the petitioners have been terminated. The petitioners have further sought a direction to the respondents to release their salary which is due since December, 1995.
2. Petitioners' case, in a nut shel, is that they joined the services in Animal Husbandry Department, Govt. of Bihar, some times in 1993-94 by the order of respondent No. 5, Regional Joint Director, Animal Husbandry Department, Ranchi. It is stated that the services of the petitioners was extended by respondent No. 5 till further orders vide order dated 8.7.1995. It is contended that the petitioners were working in the department to the utmost satisfaction of their superiors but even then they were not paid their salary since December, 1999. The respondents, instead of releasing their salary, issued show cause notices dated 19.12.1996 asking them to show cause as to how they illegally and arbitrarily joined the services. The petitioners filed their show causes but the respondents removed them from services by passing the impugned order dated 14.2.1997.
3. A counter-affidavit has been filed on behalf of respondent No. 4. Regional Director, Animal Husbandry, Ranchi stating, inter alia, that the petitioners were appointed on the post of Pravaidik Sahayak (T.A.) by Regional joint Director. Animal Husbandry, Ranchi. The appointment was made on ad hoc basis for six months which was then extended for indefinite period by the said Regional Joint Director. It is stated that the post of Pravaidik Sahayak is State cadre technical post and appointment to such post can be made only by the Director, Animal Husbandry on getting recommendation of the State Subordinate Service Commission. When Animal Husbandry scam came to light it was detected that a large number of illegal appointments were made by different regional offices who were never delegated with such powers. Respondents' further case is that all these appointments were made surprisingly after the cut off date by which all types of appointments were restrained and the Govt. letter was circulated to all offices including the office of Regional Director, Animal Husbandry. Ranchi vide order dated 23.3.1992.
4. I have heard learned counsel appearing for the petitioners and the learned Govt. Pleader No. II.
5. From perusal of the writ petitions it appears that the petitioners have not pleaded that pursuant to any advertisement they applied for the post and they were subjected to written test or interview. Simply the petitioners have pleaded that they joined the services of Animal Husbandry department in 1993-94 and their services were extended immediately after six months by the Joint Director, Animal Husbandry,. Ranchi. The petitioners have neither pleaded that any appointment letter was issued nor they have annexed copies of the appointment letters. Petitioners have based their claim on the basis of letter issued by the Joint Director, Animal Husbandry by which their services were extended for indefinite period. It is, therefore, clear that the petitioners were taken into service by back door method illegally and arbitrarily by the Regional Joint Director, Animal Husbandry. Ranchi and also without following the procedures of appointment and recruitment rules and in violation of Article 16 of the Constitution of India. It can, therefore, be safely concluded that the appointments of the petitioners itself is illegal and in violation of Article 16 of the Constitutions.
6. In a similar circumstance one Akhilesh Prasad who was appointed by the Regional Joint Director, Animal Husbandry Department, challenged the order of termination of his services by filing CWJC No. 3372/ 97(R), the writ application was dismissed by me and against that Judgment the petitioner. Akhilesh Prasad Died LPA No. 163/99{R). A Division Bench of this Court affirmed the order and dismissed the appeal holding that the Regional Joint Director, Animal Husbandry was not competent to make appointment and such appointment was wholly illegal and arbitrary. The Division Bench observed :--
"In the present case, as stated above the appellant was appointed for certain period and, thereafter, his services were regularised in breach of rule of appointment of Class III. The authority who appointed the appellant was also not competent to appoint him. If any sympathy or mercy is shown in such cases, that will result in miscarriage of justice and encourage the persons to get entry through back door and thereafter get the services regularised after certain period of time. Equitable relief under Article 226 of the Constitution is not meant for such persons."
7. In the case of Nand Kishroe Rout and Ors. v. State of Bihar. 1991 (1)BLJR 441. a Full Bench of this Court while considering the validity of the order of termination held that if appointment is made without following the procedure prescribed under the rules and in definance of the bar imposed on such appointment, then such appointment does not create any right on the incumbent and even the principles of natural justice do not apply to such cases.
8. In the case of State of U.P. and others v. U.P. State Law Officers Association and Ors., 1994 (2) SCC 203, while considering the validity of removal of the law officers, the Apex Court held that when persons are appointed by arbitrary procedures and their induction itself being product of operation of the spoiled system, then they cannot challenge termination of their services on the ground of the same being arbitrary. No public interest is involved in saving their appointments even though the appointments were made to a public office by the Govt. or public body.
9. In the case of M.L. Gupta v. Instrumentation Limited, 1992 (1) PLJR 137, a Bench of the Patna High Court observed :--
"Right to work is not a fundamental ' right but a right to be considered for appointment is such a right to be considered for appointment, as enshrined under Article 16 of the Constitution must be held to be available to all persons who are eligible therefore. Any appointment which does not conform to the requirement of Article 16 of the Constitution, therefore, cannot be said to be a valid appointment and consequently any back door method adopted to confer any permanency in the job in violation thereof cannot be encouraged by the High Court."
10. In the case of Bijay Kumar v. State of Bihar, 1993 (1) PLJR 99, a Division Bench of the Patna High Court, in similar circumstance, held that if appointment is made in violation of the mandatory provisions of recruitment rules as also Article 16 of the Constitution, the same is a nullity and the State as an employer is not bound to recognise the appointment made by its servant ignoring the mandatory provisions of recruitment rules or Article 16 of the Constitution of India.
11. Having regard to the facts and circumstances of the case and the law discussed hereinabove, I am of the opinion that the petitioners have been rightly removed from services and there is no reason to interfere with the said orders.
12. So far the claim of the petitioners for payment of salary is concerned. I am not inclined to issue any direction in the facts and circumstances of the case, for payment of salary. However, the petitioners will be at liberty to file representation for payment of salary and the authorities shall pass appropriate order for payment of salary if the petitioners, in fact, worked for the said period.
13. With the aforesaid directions/observations these writ applications are dismissed.
14. Petition dismbissed.