Patna High Court - Orders
Director,Bihar Education Project ... vs Rita Kumari & Ors on 24 April, 2014
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.384 of 2012
In
Civil Writ Jurisdiction Case No. 7771 of 2009
With
Interlocutory Application No. 2122 of 2012
In
Letters Patent Appeal No.384 of 2012
======================================================
Director, Bihar Education Project Council, Shiksha Bhawan, Rastrabhasha
Parisard Parishar, Saidpur, Rajendra Nagar, Patna
.... .... Respodent no.3-Appellant
Versus
1. Prasant Kumar, son of Sri Abhay Narayan Srivastav R/o New Area
Bipass Chowk, M.S. Road, Aurangabad (Bihar), at present posted as
Data Entry Operator, Bihar Basic School, Education Project,
Aurangabad (Bihar)
.... .... Petitioner-Respondent
2. The State of Bihar
3. Principal Secretary, Human Resources Deptt., Govt. of Bihar, New
Secretariat, Patna
4. District Magistrate, Aurangabad (Bihar)
5. D.D.C., Aurangabad (Bihar)
6. District Superintendent of Education cum District Programme
Coordinator, Bihar Education Project Aurangabad (Bihar)
.... .... Respondents-Respondents
======================================================
With
Letters Patent Appeal No.392 of 2012
In
Civil Writ Jurisdiction Case No. 7562 of 2009
With
Interlocutory Application No. 2184 of 2012
In
Letters Patent Appeal No.392 of 2012
======================================================
The Director, Bihar Education Project Council, Shiksha Bhawan,
Rastrabhasha Parisad Parishar, Saidpur, Rajendra Nagar, Patna
Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014
2/8
.... .... Respondent no. 3-Appellant
Versus
1. Rahul Ranjan Bakshi, son of Sri Shashi Kant Prasad, Account
Assistant Cum Data Entry Operator, Office of Block Resources Centre,
Block- Aurangabad (Bihar)
2. Rakesh Kumar Singh son of Sri Hari Pd. Singh, Account Assistant Cum
Data Entry Operator, Office Block Resources Centre, Navinagar,
Aurangabad (Bihar)
3. Ram Pravesh Singh son of Sri Hari Pd. Singh, Account Assistant Cum
Data Entry Operator, Block Resources Centre, Block- Aurangabad
(Bihar)
4. Deepak Kumar son of Rameshwar Prasad, Account Assistant Cum Data
Entry Operator, Block Resources Centre, Barun Aurangabad (Bihar)
5. Amresh Kumar son of Sri Tulsi Singh, Account Assistant Cum Data
Entry Operator, Block Assistant Cum Data Entry Operator, Block
Resources Cetnre, Daud Nagar, Aurangabad (Bihar)
6. Arjun Prasad son of Sudama Choudhary, Account Assistant Cum Data
Entry Operator, Office Of Block Resources Centre (Katumba,
Aurangabad)
7. Rabindra Kumar Rakesh son of Ram Bilash Singh Account Assistant
Cum Data Entry Operator, Office Of Block Resources Centre, Rafiganj,
Aurangabad (Bihar)
8. Pawan Mishra son of Radha Mohan Mishra Account Assistant Cum
Data Entry Operator, Office Of Block Resources Centre, Goh
(Aurangabad), Bihar
9. Md. Neshat Haider son of Sahubuddin Account Assistant Cum Data
Entry Operator, Office Of Block Resources Centre, Haspura,
Aurangabad (Bihar)
.... .... Respondents-Petitioners
10. The State of Bihar
11. Principal Secretary, Human Resources Deptt. Govt. Of Bihar, New
Secretariat, Patna
12. District Magistrate, Aurangabad (Bihar)
13. D.D.C., Aurangabad (Bihar)
14. District Superintendent Of Education Cum District Programme
Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014
3/8
Coordinator, Bihar Education Project, Aurangabad (Bihar)
.... .... Respondents-Respondents
======================================================
With
Letters Patent Appeal No.431 of 2012
In
Civil Writ Jurisdiction Case No. 8245 of 2009
With
Interlocutory Application No. 2325 of 2012
In
Letters Patent Appeal No.431 of 2012
======================================================
Director, Bihar Education Project Council, Shiksha Bhawan, Rastrabhasha
Parisad Parishar, Saidpur, Rajendra Nagar, Patna
.... .... Respondent no. 3-Appellant
Versus
1. Rita Kumari daughter of Raj Kishore Dubey, resident of Manjhiaon,
P.S.- Manjhiaon, District New Area Bipass Chowk, M.S. Road,
Aurangabad (Bihar), at present posted as Steno Cum Typist in the Basic
School, Bihar Education Project, Aurangabad (Bihar)
2. The State of Bihar
3. Principal Secretary, Human Resources Deptt., Govt. of Bihar, New
Secretariat, Patna
4. District Magistrate, Aurangabad (Bihar)
5. D.D.C., Aurangabad (Bihar)
6. District Superintendent of Education Cum District Programme
Coordinator Bihar Education Project, Aurangabad (Bihar)
.... .... Respondents-Respondents
======================================================
Appearance :
In LPA No.384 of 2012
For the Appellant : Mr. Lalit Kishore, Sr. Advocate with
Mr. Girijish Kumar, Advocate
For Respondent no.1 : Mr. Surendra Kumar Singh, Advocate
For the State : Mr. J.P. Kishore, AC to GP 13
Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014
4/8
In LPA No.392 of 2012
For the Appellant : Mr. Lalit Kishore, Sr. Advocate with
Mr. Girijish Kumar, Advocate
For Respondent no.1 : Mr. Surendra Kumar Singh, Advocate
For the State : Mr. Rajiv Ranjan Kr. Pandey, SC 29 with
Mr. Nagendra Sharma, AC to SC 29
In LPA No.431 of 2012
For the Appellant : Mr. Lalit Kishore, Sr. Advocate with
Mr. Girijish Kumar, Advocate
For Respondent no.1 : Mr. Surendra Kumar Singh, Advocate
For the State : Mr. Pratik Kumar Sinha, AC to GA 12
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
7 24-04-2014These three Appeals under clause 10 of the Letters Patent are preferred by the respondent-Bihar Education Project Council, Patna against the common judgment and order dated 5th December 2011 passed by the learned single Judge in CWJC Nos. 7562 of 2009, 7771 of 2009 and 8245 of 2009.
The above referred three writ petitions under Article 226 of the Constitution were filed by the Data Entry Operators appointed by the District Superintendent of Education-cum- District Programme Officer, Aurangabad under Bihar Education Project. The said appointments were made in 2007 on contractual basis for a period of three years. It appears that the District Superintendent of Education-cum-District Programme Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014 5/8 Officer, Aurangabad, prior to the completion of the period of three years, under his order dated 16th June 2009 terminated the service of the writ petitioners on the ground that their appointment was not legal and valid. The orders came to be challenged before this Court in above writ petitions. Pending the writ petitions, under order dated 19th February 2010 the operation of the order of termination of service was stayed. In the result, the writ petitioners were re-inducted in service as Data Entry Operators. The petitions came up for hearing before the learned single Judge in December 2011. The learned single Judge did record that in view of the limited tenure of appointment, the Court would have no occasion for interference. The learned single Judge, however, noticed that the grounds for termination of service were not germane to the grounds stated in the show cause notice. The learned single Judge also noticed that similar Data Entry Operators, appointed in other districts, were continued even after expiry of the term of their appointment. In the circumstances, the learned single Judge has directed that the writ petitioners be continued in service with the benefit of extension of their term "at least till the next selection process is undertaken and/or the project itself is abolished only if their appointment is declared to be legal and valid". In other words, the learned single Judge has allowed the respondent authorities to examine the legality of appointment of the writ petitioners and if found valid to continue them in service till the next selection process or the project itself is abolished.
Feeling aggrieved, the respondent-Bihar Education Project Council has preferred this Appeal.
Learned Principal Additional Advocate General, Mr. Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014 6/8 Lalit Kishore has appeared for the appellants. Mr. Lalit Kishore has submitted that once the term of their appointment had expired, the writ petitioners did not have right to continue in service. He has submitted that the learned single Judge, therefore, ought not to have issued direction to continue the writ petitioners in service. He has further submitted that the direction to continue the petitioners in service until the project is abolished would necessarily mean that the writ petitioners have to be continued in service irrespective of the terms and conditions of their appointment or their conduct or the legality of their appointment.
Learned advocate Mr. Surendra Kumar Singh has appeared for the respondents-writ petitioners. He has contested the Appeals. Mr. Singh has relied upon the further materials brought on record by way of counter affidavit. He has submitted that pending these Appeals, under order dated 19th March 2013 the District Education Officer has extended the tenure of the appointment of the petitioners until 31st March 2015. Mr. Singh has also relied upon the commendatory notes issued by the District Superintendent of Education with regard to the working of the petitioner Prashant Kumar.
We may note that these additional materials are brought on the record without the permission of the Court. Obviously, the service of the writ petitioners had to be extended in compliance of the direction issued by the learned single Judge and with a view to facilitating payment of salary. Such orders of extension of service, payment of salary or the commendatory notes do not create a right to service in favour of the writ petitioners.
Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014 7/8Pursuant to the Advertisement No. 1 of 2007, the petitioners had applied for appointment to the post of Data Entry Operator under the Bihar Education Project in Aurangabad District. Their appointment was made on 6th July 2007 under the order of the District Superintendent of Education-cum-District Programme Officer. According to the terms and conditions of their appointment, the said appointment was contractual for a period of three years.
It is not disputed that the District Superintendent of Education sought to terminate the service of the writ petitioners before expiry of their term of appointment for the reasons on which the petitioners had no opportunity to show cause.
However, on account of interim protection granted by the learned single Judge, the writ petitioners continued in service and have continued beyond the expiry of the term of their appointment. Since expiry of the term of their appointment, the petitioners have no right to continue in service which could be enforced in a writ petition filed under Article 226 of the Constitution. In our opinion, the learned single Judge has erred in entertaining the infructuous petitions and in directing to continue the petitioners in service after expiry of their term of appointment.
The reason that in other districts such Data Entry Operators have been continued in service is hardly of any relevance. The discretion whether or not to continue the service of Data Entry Operators after expiry of the term of their appointment would lie upon the appointing authority, the District Superintendent of Education-cum-District Programme Officer. No mandamus could have been issued for enforcement of a non-
Patna High Court LPA No.384 of 2012 (7) dt.24-04-2014 8/8existent right. Besides, it has now been brought to the notice of this Court that pending the writ petitions a fresh selection process was initiated under Advertisement No. 1 of 2010. The factum of the said fresh selection process and whether the petitioners applied pursuant to the said selection process have not been brought on record by the writ petitioners. Thus, the petitioners are guilty of suppression of material facts.
As recorded hereinabove, on the date of hearing of the writ petitions the term of appointment of the writ petitioners had already expired, the cause of action did not survive. The learned single Judge ought not to have continued with the writ petitions to issue mandamus against the respondent authorities.
For the aforesaid reasons, these Appeals are allowed. The common judgment and order dated 5th December 2011 passed by the learned single Judge in CWJC Nos. 7562 of 2009, 7771 of 2009 and 8245 of 2009 is set aside. CWJC Nos. 7562 of 2009, 7771 of 2009 and 8245 of 2009 are disposed of as having become infructuous.
It is clarified that in the event a fresh selection process is initiated, the petitioners will be, subject to their eligibility, at liberty to apply for fresh appointment pursuant to the public notice.
I.A. stands disposed of.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Manish/-