Patna High Court
Subodh Kumar Jha And Ors. vs The State Of Bihar And Ors. on 7 November, 1988
JUDGMENT S.B. Sanyal, J.
1. The petitioners are the Extra clerks in the Registration office of Madhubani district. In this writ petition they seek quashing of Annexure-8, a letter dated 28th May, 1987, by which the Inspector General of Registration (respondent No. 2) has cancelled the appointment of 35 Extra clerks, including that of the petitioners for breach of the instruction contained in Government letter bearing No. 355 dated 11-2-1982 (Annexure 10). They also seek quashing of Annexure 9, the consequential order passed by the District Registrar, Madhubani (respondent No. 3), implementing the decision of the Inspector General of Registration (respondent No. 2).
2. The petitioners' ease, in short, is that in the Registration office, Madhubani, there are (i) Permanent (ii) Temporary and (iii) Extra clerks. Whereas the permanent and temporary clerks have a regular scale of pay, the extra clerks are paid on the basis of piece-rate, viz. Rs. 1.00 per page, subject to a maximum of 24 pages per day. The Government, however, charges from the public at the rate of Rs. 4.50 per page. According to the Government policy and decision, copies of registered documents must be supplied to the public within 21 to 30 days (Annexure 12). In order to make available to the public, registered documents, after being copied and/or for preparing certified copies, within the time frame, the Registration Department resort to the appointment of extra clerks. There is a modality for appointment of extra clerks as provided in Rule 26(2) (a) of the Bihar Registration Manual, 1946. The said rule envisages that a list of extra clerks should be prepared in advance in each sub-registry office. The selection of the persons to be included in the list should be made after proper advertisement. In making selection, special importance should be attached to neatness and quality of writing. Those who are Matriculates and can also write the vernacular language, may be given preference. Preference should also be given to persons who are not over 30 years of age and the appointment should ordinarily be confined to persons who are residents of the district. Due regard should be had for the Government orders issued from time to time regarding appointments on communal basis. The list of suitable persons for employment as extra clerks should be duly approved by the District Registrar, who is the District Magistrate of the district.
3. On 25-2-1950, the Inspector General of Registration, Bihar (respondent No. 2) circulated a general letter (Annexure 11) containing further instructions in this regard to be effective from the 1st of January, 1950. The said letter required that list of persons suitable for employment as extra clerks must have :the approval of the District Registrar and there should be no change in the list without the specific order of the District Registrar. The list must be prepared in the preceding month of November to remain in force during the calendar year and it must contain as many persons as can be appointed as extra clerks on the basis of the annual average number of deeds admitted during the last three years. The selection of the candidates should, however, be made after proper advertisement at the headquarters of the district, Sub-divisional headquarters and the Sub-Registry offices. The District Registrar or the Senior Deputy Collector assisted by the District Sub-Registrar or the Senior Deputy Registrar shall conduct the reading and writing test of the vernacular language and special importance should be attached to the neatness and quality of writing. Preference should be given to those who are Matriculates and can also write the vernacular legibly and neatly. The persons who have worked as extra clerks continuously for not less than five years with satisfactory work, be included in the approved list, without being required to sit at the test. The employment of extra clerks will be on yearly basis, A person who is once enrolled in approved list of extra clerks should not be removed from the list of the following year, except on the ground of reduction of work. They may, however, be dismissed or discharged by the Inspector "General of Registration or by the District Registrar in the event of misconduct or unsatisfactory work. The persons appointed as extra clerks will be given a card. They must regularly attend the Registration office and must not absent themselves from office without permission, and if they do so on 'three or four occasions continuously, their names will be liable to be removed from the approved list. No person shall be employed as extra clerk after he attains the age of 60 years. The experienced extra clerks may be absorbed in permanent vacancies whenever such vacancies arise according to the existing rules.
4. The District Registrar, Madhubani (respondent No. 3) having felt the need of 35 extra clerks, 'there being 64865 pending requisitions for supply of registered documents and/or certified copies, sent a requisition to the Employment Exchange, clearly mentioning the name of the employer being the District Registrar as also showing the posts reserved for Scheduled Castes and Scheduled Tribes and the number of vacancies depending upon requirement (Annexure 1). In terms of the said requisition, the District Employment Officer by his letter dated 15-2-1982 forwarded a list of 51 candidates to the District Registrar (Annexure 2). The candidates were issued letters of interview, directing them to appear at the written test, which was scheduled to be held on 22-54982 (Annexure 3). A selection committee was constituted under the Chairmanship of the District Registrar, Madhubani (respondent No. 3), comprising of the District Sub-Registrar and Establishment Deputy Collector as its members. The committee held a written test of all the candidates who turned up and tabulated total points secured by each of the candidates on the basis of their academic achievement as well as their performance in the written test and, thereafter, a final panel was prepared of 46 candidates:; 26 for the general category and 20 for the Scheduled Castes and economically backward classes, there being no Scheduled Tribes in the district of Madhubani (Annexure 4). Thus after finalisation of the panel, the District Registrar having made assessment of the backlog of work pending in the various Registration offices in the district of Madhubani, on the 2nd June, 1982, issued letters of appointment to 31 candidates, including the petitioners to the post of extra clerks; 22 from the general category and 9 from the backward category, and four posts of reserved category were kept vacant in absence of suitable hands (Annexure 5).
5. The Inspector General of Registration (respondent No. 2) made enquiry from the District Registrar as to the appointments made and the latter by his letter dated 8-10-1982, intimated that out of 51 extra clerks of the previous year, 43 having been absorbed as temporary clerks, there was a need for extra clerks for timely supply of copies and, accordingly, he, on consideration of the situation, took a decision to appoint 35 extra clerks. He further stated that the Inspector General of Registration's decision contained in letter No. 355 dated 11-2-1932 (Annexure 10) was forwarded to his office on 27-5-1982 and was received in the office of the District Registrar only on 8-6-1982, by which time the appointments had already been effected in strict compliance of the instructions dated 25-2-1950. He also asked for post facto approval of the Inspector General of Registration of the appointments made by him. This letter has been marked as Annexure 6 to the writ petition. On 9-2-1983, the office of the Deputy Inspector General of Registration asked for a copy of the advertisement, persuant to which appointments were made, and other records connected therewith as well as the roster chart, and in reply to 'the said letter, on 15th of April, 1983, all the required papers and documents were forwarded to the office of the Deputy Inspector General of Registration (Annexure 7). Almost five years thereafter, on 28-5-1987, the impugned Annexure 8 was issued by the Inspector General of Registration, cancelling all the appointments made, for non-compliance of the Government letter No. 355 dated 11-2-1982. The Government letter dated 11-2-1982 has been marked as Annexure 10 to the writ petition. This decision of the Inspector General of Registration was followed by the consequent order of termination passed by the District Registrar vide impugned Annexure 9.
6. Counter-affidavit has been filed on behalf of respondent No. 2, the Inspector General of Registration, to the effect that the appointments (were irregular in view of the general instructions and directions. It has also been stated that a superior officer has right to undo or reverse any order passed by any inferior in view of Rule 3 of the Board Miscellaneous Rules, 1958, as adopted by the Bihar Registration Manual, 1946, Volume II, page 125. The Government instruction contrary to which the appointments have been made is said to be contained in letter No. 355 dated 11-2-1982 (Annexure 10). In paragraph 21 of the counter-affidavit, it has been stated that power of the District Registrar in matters of appointment of extra clerk is not an unrestricted one. Certain condition precedent for appointment had to be followed as contained in letter No. 355 dated 11-24982. This letter was issued as the Government felt that the permanent establishment did not perform their prescribed duties and, therefore, the works were largely in arrears, and this delinquency was being rewarded by making appointments of extra clerks. Therefore, some reasonable conditions were laid by the said letter, one of which is to obtain prior approval of the Inspector General of Registration before initiating the selection process. It has also been averred that the ignorance of the letter dated 11-2-1982 cannot be an excuse for any irregular appointment.
7. There is a counter-affidavit filed on behalf of respondent Nos. 3 and 4. The substance of the counter-affidavit is the appointments were made in consonance with the circular dated 25-2-1950 (Annexure 11) inasmuch as letter No. 355 dated 11-5-1982 (Annexure 10) was not within the knowledge of the District Registrar.
8. Mr. Tara Kant Jha appearing on behalf of the petitioners submitted that the appointments had been made strictly in compliance with the requirements as, embodied under Rules 25(2) (a) of the Bihar Registration Manual as also the instructions issued by the office of the Inspector General of Registration on 25-2-1950 (Annexure 11). The instructions as contained in letter No. 355 dated 11-2-1982 (Annexure 10) were received in the office of the District Registrar, Madhubani, as would be evident from Annexure 6, only on 8-6-1982, whereas the appointments were effected on 2-64982 by the District Registrar through a high powered Selection Committee, he being himself the Chairman of the said Committee. The need for appointment, the process of selection, the reason why prior approval could not be obtained before initiation of selection process, all these were intimated to the Inspector General of Registration by the District Registrar as far back as on 8-10-1982, but authorities allowed the petitioners to continue in their post for about five years and one fine morning on 28-54987, directed termination of service, of the petitioners because of non-compliance of the instructions contained in the letter dated 11-24982 (Annexure 10). This, according to the learned counsel, was arbitrary exercise of executive power. The Inspector General of Registration, according to the learned counsel, ought to have accorded post facto approval to appointments in dispute in the facts and circumstances of the case. According to the learned counsel, no irregularity has been spelt out in the letter of termination beyond a bald statement alleging violation of the circular dated 11-24982. The only lapse, if any, was in not obtaining prior approval of the Inspector General of Registration before taking the decision for filing up the 35 posts of extra clerks, which, however, could not have been so obtained in the facts and circumstances of this case. Learned counsel has also submitted that the District Registrar is the competent statutory authority under Rule 26 (2) (a) of the Bihar Registration Manual as also under the Government decision dated 25-2-1950 to act in the matter. His failure to obtain approval is of no consequence since the letter dated .11-24982 should only be treated as directory and not mandatory. Learned counsel further submitted that the letter dated 11-24982 could have no application as (a) the process of selection started on 114-1982 before the existence of this letter, (b) this letter was received in the office of District Sub-Registrar on 8-6-1982 whereas the appointments were made on 2-6-1982, and (c) even though the entire circumstances relating to the appointments were reported to the Inspector General of Registration in October, 1982, no objection to the appointment was raised contemporaneously. The respondent No. 3, it was submitted, was estopped from terminating services of the petitioners after lapse of about five years.
Mr. Shukla, learned Government Pleader No. I, appearing on behalf of the State, contended, on the other hand, that the appointments were ab initio void for non-compliance with the conditions precedent. Only after obtaining approval of the Inspector General of Registration, the District Registrar could have proceeded in the matter. He further contended that the Inspector General of Registration is the superior authority and, therefore, is possessed of all powers conferred on the District Registrar and to confirm or reverse the decision of the District Registrar. Therefore, the writ petition had no merit and it should be dismissed. The principle of estoppel was inapplicable in view of the judgment of this Court reported in 1986 PLJR 149 (Full Bench) (Chetlal Sao v. State of Bihar) since the District Registrar has acted contrary to Government instructions.
9. The first thing which strikes me is that there is no explanation as to what prevented the Inspector General of Registration to wake up almost five years after he officially came to know of the appointment of these petitioners. The petitioners were selected strictly in accordance with the Registration Rules as also the decision of the Inspector General of Registration made as far back as on 25-2-1950. The petitioners, as stated, have been satisfactorily discharging their duties for all these five years. Had their services been terminated for the alleged irregularity in 1982, they could have availed of other employment opportunities or even applied for being appointed as extra clerks in the subsequent years. The bogie of irregular appointment is not meant to be a weapon in the hands of the executive authorities to be wielded on whims and caprices. The executive authorities should be aware of the injury and inconvenience that may follow a delayed action and they cannot play fast and loose with the powers vested in them. The second aspect which never received the consideration of the Inspector General of Registration is that his letter dated 11-2-1982 (Annexure 10), which is the main plank of the defence of the respondent, could not have been followed by the District Registrar because of receipt thereof after the flnalisation of the appointments. This fact was brought to the notice of the respondent No. 2 as far back as in October 1982, The District Registrar in all humility sought for post facto approval of the appointments made. The State has not been able to place before us any record to show if the said letter of the District Registrar was at all considered by the respondent No. 2 on the ground on which post facto approval could not be accorded. It is not the case of the State that in making the appointments, proper selection process was not adhered to. On the contrary, it appears from the record that the entire process of selection was apparently fair. Due importance had been given to the reservation policy of the Government as well. It is 'true that the Inspector General of Registration is an officer superior to the District Registrar. The District Registrar however, is the statutory authority in the matter of such appointments, and not the Inspector General of Registration. The duties and responsibilities vest in him in this regard, and not in the Inspector General of Registration. The power, therefore, could only be exercised by him, though under the supervision, of the Inspector General of Registration, a superior authority who cannot, however, take upon himself the statutory power of appointment and termination vested in the District Registrar. The impugned Annexure 8, the order of the Inspector General of Registration, directing termination of the appointments, does not spell out any irregularity committed in the selection process. It only records a bald statement that the appointment are violative of the instructions issued on 11-2-1982 (Annexure 10). In the counter-affidavit of the State the alleged irregularity, as spelt out, is to the effect that prior approval of the Inspector General of Registration was not obtained before initiating the selection process. This ground is per se unacceptable because the selection process was initiated by the District Registrar on 11-1-1982 (Annexure 1), prior !to the existence of the Inspector General of Registration instructions dated 11-2-1982 (Annexure 10). In my opinion, the process of selection by the District Registrar under the earlier rules and instructions should not have lightly set aside by the Inspector General of Registration after a period of five years on the sole ground of non-compliance with a subsequent instruction.
10. The more important question which I will now advert to is whether the circular of the Inspector General of Registration dated 11-2-1982 (Annexure 10) was at all applicable to the appointments of extra clerks of the year 1982. The much emphasised prior approval, which is the only alleged irregularity, is that the District Registrar bought to have obtained prior sanction of the Inspector General of Registration before initiating the selection process. This contention ignores the words preceding the word "permission (Anumati)". Prior approval is only required when the District Registrar intends to increase the strength of the extra clerks. The important words "Bridhi karna awash-yak hai to" are being totally ignored by the State while emphasising the word permission (Anumati)", The increase (Bridhi) in the strength of extra clerks in any year is reasonably relatable to the strength as in the previous year. It appears from the record that in the previous year, the strength of extra clerks was 51, out of whom 43 were absorbed as temporary clerks. The District Registrar took decision to appoint 35 extra clerks. These 35 extra clerks along with 8 unabsorbed extra clerks constituted the strength of 43, less than the strength of extra clerks in the previous year. Therefore, iii my opinion, strictly speaking, there was no need of taking prior permission of the respondent No. 2.
Further, the instructions of the 11th February, 1982 could not have any application to the appointment of extra clerks in the said year. The District Registrar had been instructed to prepare a list of approved candidates by the end of December for their appointment in the next year. The words "Niyukti hetu suchi bartman nirdesanusar agami barsh ke liye ek sath mah December me hi taiyar kar liya jay" manifest that the list according to the instructions could be meant for appointment in the next year i. e, 1983. The instruction nowhere, says that no appointments for the year 1982 should be made. I am, therefore, of the opinion that (her- has been no violation of the instructions of the Inspector General of Registration dated 11-2-1982 in making the appointments of the petitioners. There is also no finding that the appointments of the petitioners were No. justified by the work-load in the year 1982,
11. For the reasons aforesaid, the writ petition is allowed. Annexures 8 and 9, the impugned orders terminating the services of the petitioners, are quashed. The petitioners are entitled to costs. Hearing fee is assessed at Rs. 500.00.
D.K. Sen, C.J.
12. I agree.