Patna High Court - Orders
Bihar State Scheduled Caste Co vs Radha Krishna Singh & Ors on 7 February, 2011
Author: T. Meena Kumari
Bench: T. Meena Kumari
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.814 of 2009
1. Bihar State Scheduled Caste Co-operative Development
Corporation Limited, 4th Floor, Biscomaun Tower, West Gandhi
Maidan, Patna, presently at „Malayanil Bhawan‟, Budha Colony,
Patna
2. Administrator (now Managing Director), Bihar Sate Scheduled
Caste Co-operative Development Corporation Limited, 4th Floor,
Biscomaun Tower, West Gandhi Maidan, Patna present at
„Malayanil Bhawan‟, Budha Colony, Patna
......... Respondents-Appellants
Versus
1. Radha Krishna Singh, S/o Late Manhagu Singh, resident of
village - Satsa, P.S. Kochas, District - Rohtas
.........Petitioner - Respondent
2. The State of Bihar,
3. The Secretary, Department of Welfare, Government of Bihar,
Patna
4. The Registrar, Co-operative Societies, Bihar, Patna.
......... Respondents - Respondents.
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For the Appellants: Shri R.S. Pradhan, Sr. Advocate
For the State : Shri Amrendra Kumar, AC to G.P. VIII
For the Respondent no.1: Sarvshree Basant Kumar Choudhary,
Senior Advocate,
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6/ 7.2.2011We have heard learned counsel for the parties.
The petitioner respondent was appointed, as may appear from the undisputed facts, specially from Annexure 5 to the writ petition, on daily wages as a Night Guard in the Mahila Silai Katai Kendra, Ajavini, Rohtas by the office order no. 32 dated 10.3.1987 passed by the Bihar State SC/ST Cooperative Development Corporation Limited, Patna (hereinafter referred to as the „Corporation‟).
It appears that the petitioner-respondent was terminated by another office order bearing no. 855 dated 26.5.1987. In spite of that termination order, the petitioner respondent, by the officer order no. 112 dated 16.6.1989, under the signature of the Administrator of the 2 above noted Corporation, was inducted in the same organization through the same mode of appointment at the same post of Night Guard. What appears further is that after about a year and three months of being appointed on daily wages as Night Guard, the services of the petitioner-respondent were regularized under the order of the Administrator of the Corporation by the office order no. 243 dated 13.9.1990 in the pay scale as indicated in that particular order. In between, it appears that the appointment policy in the Corporation and its limbs were changed by the State of Bihar through its Welfare Department, as may appear from Annexure 7, which is the copy of the memo no. 7265 dated 20th November, 1990. It was notified by the Government of Bihar that henceforth no appointment was to be made except through committee under the fixed procedure as was contained in another notification, which was accompanying that memo no. 7265 dated 20th November, 1990. There is no dispute in the fact that the petitioner-respondent‟s appointment was not as per the recognized rules circulated through Annexure 7.
Learned senior counsel appearing for the petitioner - respondent appears distinguishing before the learned Single Judge as also before us that admittedly the petitioner-respondent‟s retrenchment or termination from employment were admitted to be illegal by the Administrator of the afore noted Corporation. The learned Single Judge, while passing the impugned judgment, was noting the above distinction between the illegal appointment and 3 order of regularization passed vide Annexure 7 and was clearly indicating, while distinguishing, the case of another petitioner, of C.W.J.C. No. 8850 of 1993 as under:
"In so far as CWJC No. 8850 of 1993 is concerned, this Court never pronounced authoritatively on the appointment of the petitioner. There is no material before this Court that the petitioner therein was similarly situated as the present petitioner inasmuch as the Corporation had itself acknowledged that the termination was illegal."
Learned counsel for the appellant, in support of the present LPA was sticking to his guns as requires the appointment being made in infraction of the prevailing rules. He was also referring to some of the decisions of this Court as also of the Apex Court so as to challenging the orders of the Single Judge by submitting that the very appointment of the petitioner respondent was illegal on account of being in violation of the set norms by the concerned department of the Government, the same could not have been upheld by the learned Single Judge in writ petition.
We are quite aware of the legal position that any back door appointment or any appointment made in infraction of the rules or prevailing circulars of the Government could never be given the colour of being a just appointment. But, for coming to a logical conclusion, one has also to go into the factual background of individual case. Here, in the present case, the admitted position was that the petitioner -respondent was inducted on daily wage as a Night Guard and was terminated from that employment, which was 4 again set aside by the same employer holding it illegal. That order, we have already referred to, appears in the form of Annexure 5 to the writ petition. It was not that it was a case of appointment as appears being distinguished by the learned Single Judge and this is our view also. It was a simple case of regularization, probably, on account of the Corporation and its Administrator finding that they fell in folly by earlier terminating the services of the petitioner respondent and as such, re-inducted him in the same capacity under the same terms of appointment. Regularization was on account of years of services the petitioner respondent has invested as daily wager and it was under a particular salary scale. Above all, the order appears passed by the Administrator of the Corporation. Not only that the petitioner respondent‟s services were regularized and he was inducted in the regular cadre of the original organizer in the scale of salary as indicated by Annexure 6 to the writ petition, we find further that he was promoted to a higher salary scale and post by Annexure 15, which is yet another order issued by the establishment section of the Corporation and that order of promotion was passed considering the years of services invested by the petitioner respondent.
We have noticed the above event in the appointment of the petitioner respondent, who was subsequently thrown out of his services only to convince ourselves that after more than fourteen years when he was made to believe by different actions of the Corporation that he was approaching his valued service, it was 5 attempting to show the petitioner respondent the door by handing out an order of termination of his services. The Corporation, on account of the above event, could not have been allowed to do it as the petitioner respondent was made to believe that his services were regularized and he was permanently absorbed in the cadre. We further find that the learned Single Judge has very well demarcated the distinction between the appointment which could have been made illegally in defiance of the rules and that which could be stuck to correct legal retrenchment order as appears from the paragraph just we have quoted.
In that view of the matter, we do not find any merit in the present Letters Patent Appeal and as such, we dismiss it. The stay granted in the matter stands vacated.
Anil/ (T. Meena Kumari, J.) ( Dharnidhar Jha, J.)