Jharkhand High Court
Ram Krishna Chaudhary And Ors. With ... vs State Of Bihar/Jharkhand And Ors. on 27 June, 2001
Equivalent citations: 2001 LAB. I. C. 3269, 2001 AIR - JHAR. H. C. R. 336
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In all these writ applications the petitioners have challenged the decision of the Government which was communicated, vide order and direction dated 23.10.1998, whereby and whereunder the Government has decided to terminate the services of the Technical Assistants of the Animal Husbandry Department on the ground that the Regional Director of the Department was not competent to make appointment.
2. All the petitioners were time to time appointed as Technical Assistants in Frozen Semen Bank Project Hotwar, Ranchi in between 1988-91. The petitioners' case is that prior to that appointment notice was issued by the Department regarding recruitment of Technical Assistants. The petitioners applied and they were appointed against the sanctioned post. It is stated that the appointment committee consisting of Regional Director, Regional Joint Director and two District Animal Husbandry Officers, took the decision to continue the services of the petitioners against the sanctioned post.
3. The respondents in their counter affidavit have stated that when the animal husbandry scam came in light it was also detected that huge amount of State exchequer was and is being siphoned out every year as salary of illegally appointed persons. Such appointments were done mainly from the regional office of South Chotanagpur, Ranchi. An investigation was conducted in the Department and it was found that a large number of illegal appointments were made by the officers who were never delegated with the power to make such appointments. It was also found that to justify such appointments few letters were issued by the officers who have been made accused in Animal Husbandry Scam. After revealing the seriousness of the matter. Government conducted further investigation and arrived at a decision to terminate the services of Technical Assistants and other persons who have been illegally appointed by the officers of the region.
4. Mr. P.K. Prasad, learned counsel appearing for the petitioners, submitted that the Government conferred power to the Regional Director to make appointment and to exercise all the powers of Director of the Department. The power conferred to the Regional Director was withdrawn only in 1992. Learned counsel further submitted that all appointments were made by the Regional Director prior to 1992 and these petitioners have continued in their services on the basis of appointment made much before 1992. In this regard, learned counsel drawn my attention to several an-nexures which are part of the writ applications.
5. On the other hand, Mr. R.K. Marathia, learned Government Pleader No. 2, firstly submitted that the post of Technical Assistants is State cadre post and not a regional cadre post and, therefore, the Regional Director cannot and shall not be a competent person to make appointment in State cadre post. Learned counsel submitted that neither the Regional Director was ever conferred with power to make appointment nor the said power was withdrawn by the Government. Learned counsel lastly submitted that in any view of the matter such appointments have been made in violation of the procedure of appointment and recruitment rules and Article 16 of the Constitution of India and, therefore, the Government rightly took a decision to terminate the services of these petitioners. Learned counsel relied upon a decision of this Court in the case of Akhilesh Prasad v. State of Bihar and Ors. (CWJC No. 3372 of 1997(R), whereby this Court by order and judgment dated 21.4.1999 held that the Regional Director was not competent to make appointment of Technical Assistants.
6. Mr. Jerath, learned counsel appearing for some of the petitioners, mainly submitted that the decision of Akhilesh Prasad' case does not apply in the present case for the reason that the petitioner of that case was a Ganak (Accountant) and the Regional Director was not conferred with power to make appointment of Ganak. Learned counsel further submitted that the order by which the services of Akhilesh Prasad was terminated was not the impugned order in these cases.
7. After considering the rival submissions of the learned counsels for the parties, the only question falls for consideration by this Court is as to whether the Regional Director. Animal Husbandry Department. Ranchi Region, was competent to make appointment of Technical Assistants.
8. The questions raised by the petitioners have been fully answered by this Court in Akhilesh Prasad's case. In that ease the petitioner Akhilesh Prasad filed CWJC No. 3372/97(R) challenging the order dated 1.10.1997, whereby he was intimated the decision of the Government to terminate his services. The petitioner of that case was appointed as Laboratory Assistant for a temporary period of six months and his services were regularised by a Selection Committee consisting of Regional Director. Animal Husbandry Department in the year 1988. In 1989 he was posted against the vacant post of Ganak by the Regional Joint Director with the stipulation that a regular appointment being made by the Director against the said post, he would be reverted back to his original, post. The learned Single Judge, after taking Into consideration the stand taken in the counter-affidavit that the post of Laboratory Assistant as well as Ganak is a State cadre post and the competent authority to make such appointment is the Director. Animal Husbandry Department, held that the Regional Director has no power to make appointment on such post. The writ application was accordingly dismissed. The petitioner Akhilesh Prasad filed Letters Patent Appeal being LPA No. 163/99(R). The Division Bench, by an elaborate judgment, affirmed the view taken by the learned Single Judge and dismissed the appeal. Their Lordships held :--
"10. It has been brought on behalf of the State that the posts of Laboratory Assistant and Ganak are the State cadre posts and by the said resolution it can not be inferred that the power was given to the Regional Director to fill up even the State cadre posts in his own division. On the other hand, the document which has been filed on behalf of the State clearly shows that power was delegated to the Regional Director to appoint Class HI ministerial posts and Class IV posts. It does not stand to reason that the Regional Director, Animal Husbandry Deptt. in his own division will be entrusted to fill up State cadre posts. The document on the record clearly shows that the Director. Animal Husbandry Deptt. was the competent person to make appointment of the State cadre posts on the recommendation of the Awar Sewa Chayan Parishad. Thus, there is no difficulty in coming to the conclusion that the Regional Director, Animal Husbandry Deptt. was not competent authority to make appointment on the State cadre posts. Thus, it is clear that the Regional Director was not competent authority to make appointment to the posts of Laboratory Assistant and Ganak and thus, the appointment of the appellant was without jurisdiction or illegal from the very inception.
11. Even assuming for the sake of argument that the Regional Director, Animal Husbandry Deptt. was empowered to make appointment to State cadre posts even then the appointment was highly illegal as the same was done without following the procedure for appointment, namely, on the recommendation of the Awar Sewa Chayan Parishad." Their Lordships further held :--
"13. So far as the question as to whether this Court should consider the case of the appellant of equitable ground is concerned, this is also not permissible. The case of Roshni Devi (supra) does not help the case of the appellant. In that case, the appointments were made on the basis of the recommendation of the Service Selection Board. However, there were certain irregularities as the names were recommended beyond the vacancies and the persons lower in the merit were appointed whereas the persons above in the merit lists were not appointed. The Supreme Court having noticed the peculiar facts and the circumstances of the case ordered that those who have rendered more than nine years service, their services can not be annulled. The said case was not a case of appointment without following the procedure by an authority who has not competent to appoint. In Ashwani Kumar's case (supra), the Apex Court has held that there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entract would ever survive for consideration, however, competent the recruiting agency may be. In the case of J & K Public Service Commission and others (supra) the Apex Court held that the act of the authority in regularising the service of an ad hoc employee in violation of the statutory rules is ultra vires and the Court can not direct for regularisation of service in such cases."
9. Now I shall examine the mode of appointment of these petitioners made by the Regional Director of the Animal Husbandry Department.
10. In CWJC No. 536/20001R) the petitioners have annexed a letter in support of their case that their services were ultimately regularised by the respondents. The letter reads as under :--
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vkns'k vkns'k la[;k 234@jk¡ph] fnukad 20-9-1990 Ýkstsu lhesau cSad ;kstukUrxZr gksVokj] jk¡ph essa dk;Z dh vko';drk dks ns[krs gq, ;kstukUrxZr l`ftr lgk;dksa ds inksa ds fo:) vYidkfyu O;oLFkk }kjk rnFkZ :i esa fu;qä fuEufyf[kr izkoSf/kd lgk;dksa dks lsok vof/k lekIr dh frfFk ls voj lsok p;u i"kZn fcgkj iVuk vFkok funs'kky; i'kqikyu foHkkx fcgkj iVuk }kjk fu;fer fu;qä gsrw tc&rd vafre fu.kZ; ugha yh tkrh gS rc&rd ds fy, vxys vkns'k rd lsok vof/k foLrkj dh LohÑfr iznku dh tkrh gS A 2- ;g vkns'k foYdqy gks vkSicaf/kd gS A izkoSf/kd lgk;dksa dks fouk fdlh izdkj dh iwoZ lwpuk fn;s gq, mUgsa lsok ls foeqä fd;k tk ldrk gS A 3- voj lsok p;u i"kZn fcgkj iVuk ,oa funs'kky; i'kqikyu foHkkx fcgkj iVuk }kjk vxj] izkoSf/kd lgk;dksa dks p;u ugha dh tkrh gS rks lsok Lor% lekIr le>h tk;sxh A Øekad izkoSf/kd lgk;dksa dk uke ,oa irk 1- Jh izHkqn;ky flag] ,rjkVksyh ukedqe] jk¡ph A 2- Jh jke roD;k dqekj] cktjk cfj;krw] fiLdk eksM+] jk¡ph 3- Jh jkeÑ".k pkS/kjh] dksdj] jk¡ph AA 4- Jh Hkqous'oj mik/;k;] okykykSax] jk¡ph A 5- Jh uhjt fd'kksj vks>k] ikyh] jk¡ph A 6- Jh fnus'k dqekj ikaMs;] rksjik iz[kaM] jk¡ph A 7- Jh nnu izlkn] jfu;k¡ iz[kaM] jk¡ph A 8- Jh jke fd'kksj vks>k] /kqokZ] jk¡ph A 9- Jh jkts'k dqekj JhokLro] uxM+h] jk¡ph A g-&vLi"V 20-9-1990 {ks=h; la;qä funs'kd A Kkikad la[;k 11066 jk¡ph] fnukad 20-9-1990 izfrfyfi Øekad 1 ls 9 rd ds izkoSf/kd lgk;dksa dks lwpukFkZ izsf"kr A g-&vLi"V 20-0-1990 {ks=h; la;qä funs'kd A Kkikad la[;k 11066 jk¡ph] fnukad 20-9-1990 izfrfyfi ftyk i'kqikyu inkf/kdkjh] jk¡ph@ifj;kstuk inkf/kdkjh] Ýkstsu lhesau cSad] gksVokj] jk¡ph dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq iszf"kr A g-&vLi"V 20-0-1990 {ks=h; la;qä funs'kd A
11. From bare perusal of the aforesaid letter, it is clear that the petitioners were initially appointed by the Department purely on temporary basis for a fixed period and the services were extended till the regular appointment is made by the Animal Husbandry Department, Government of Bihar, Patna. This extension of service was with the specific condition that the services can be terminated at any time without notice and in absence of their valid appointment the services shall come to an end.
12. Similar is the case of other writ petitioners. There is nothing on record to show that before such appointment was made by the regional Director, an advertise-ment was issued and the candidates were subjected to selection processes and the procedure provided in the recruitment rules was followed. The appointments have admittedly been made in violation of Article 16 of the Constitution of India.
13. The post of Technical Assistants is admittedly a State cadre post and not a regional post. Mr. P.K. Prasad mainly relied upon Annexure 15 to the writ application in support of their case that the State Government conferred power to the Regional Director to make such appointments. Annexure 15 is a circular dated 18th March. 1980 issued by the Government in the Animal Husbandry Department conferring certain power to the Regional Director. From-perusal of the aforesaid circular, it appears that the Regional Director was empowered to exercise the power of Director in the region in the matter of administration and implementation of the programmes. The said circular does not specifically confer power to the Regional Director to make appointment in State cadre post. On the contrary, from perusal of Annexure 18, which is a letter dated 10.12.1987 issued by the Regional Director to the Director, it appears that a request was made by the Regional Director to the Director for issuance of specific direction in the matter of making temporary appointment on the vacant post of Technical Assistants, The petitioners further relied upon Annexure 19 to the writ application, which is a letter dated 31.12.1987 issued by the Deputy Secretary, Animal Husbandry Department, Government of Bihar, informing the Director. Animal Husbandry Department to the effect that under very special circumstances the Director has been empowered to make temporary appointment purely on temporary basis in order to meet the exigencies. The petitioners have also annexed various other letters and circulars but no letter or circular shows that the Regional Director was ever empowered to make regular appointment much less temporary appointment without following the recruitment rules or the procedure. The claim of the petitioners that they have been validly appointed by the Regional Director as Technical Assistants against the sanctioned post is without any basis and is misconceived.
14. Learned counsel for the petitioners also brought to my notice orders passed by the learned Single Judge and the Division Bench in support of their claim but the Division Bench of this Court in LPA No. 163/99IR) delivered a reasoned judgment discussing all the issues raised by the appellant and held that the Regional Director was not competent to make appointment to the post of Technical Assistants, which is a State cadre post. It is worth to mention here that the LPA No. 163/99(R) had arisen out of the judgment passed by this Court. In another writ petition being CWJC No. 3516/99(R) this Court again held in the judgment and order dated 29.5.2001 that the Regional Director was not competent to make appointment of Technical Assistants in the Animal Husbandry Department.
15. In the case of Brajesh Kumar Singh v. State of Bihar, (2001) 1 Jharkhand Law Journal Reporter 257, a similar view was taken by a Bench of this Court that the Regional Director, Animal Husbandry Department was not competent to make appointment in the region.
16. Taking into consideration the entire facts and circumstances of the case and relying upon the Division Bench judgment of this Court in Akhilesh Prasad's case. I do not find any merit in these writ application, which are accordingly dismissed.
17. Writ petitions dismissed.