Patna High Court
Ram Swroop Yadav vs The State Of Bihar & Ors on 9 September, 2010
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
CIVIL WRIT JURISDICTION CASE No.1971 OF 1999
In the matter of an application under Article 226 of
the Constitution of India.
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Ram Swaroop Yadav, son of late Somar Yadav, resident
of village - Kolja, P.s. Govindpur, District -
Nawadah, at present resident of Mohalla - Mangar
Bigha, P.S. Town Nawadah, District - Nawadah
___________ Petitioner
1. The State of Bihar through
Commissioner/Secretary, Department Of Forest,
Govt. of Bihar, Patna.
2. Principal Chief Conservator of Forest, Bihar,
Ranchi.
3. Conservator of Forest, Gaya Circle, Gaya.
4. Divisional Forest Officer, Afforestation
Division, Nawadah (D.A.A.P.) Nawadah.
___________ Respondents
For the petitioner: Mr. Durgesh Nandan.
For the State :
______
P r e s e n t
THE HONBELE MR. JUSTICE AJAY KUMAR TRIPATHI
A K Tripathi,J. Annexure-8 dated 1.8.96 is the order of
termination, which is under challenge in the present
writ application. Petitioner terms the order of
termination to be illegal, arbitrary and misplaced
because he claims to have been appointed by a
competent authority i.e. the Divisional Forest
Officer. The post on which petitioner was appointed
was post of a Mali.
2. Contention of the counsel representing the
petitioner is that petitioner was in service of the
respondents in one or the other capacity for a very
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long time. His earliest introduction to the system is
evident from Annexure-11 when he came to be appointed
on 4.9.1974 on daily wages as a Cattle Protector
(Pashu Rakshak). It is his case that looking at his
good work which he performed, the Divisional Forest
Officer decided to appoint the petitioner on the post
of a Mali giving him a pay scale. This appointment
came to be made on 3.11.1995 and the said order is
Annexure-6 to the writ application. Petitioner joined
the post and started working but he was subsequently
informed that he stood terminated by the order dated
1.8.1996. Though the petitioner has challenged the
said order by filing the present writ application but
he still feigns ignorance about the existence of such
an order. It is his case that the said order was never
served on him and there is some indication to this
extent from some of the documents which he has annexed
with the supplementary affidavit. In the totality of
the circumstances, the long association of the
petitioner with the department and taking a
compassionate view of the matter, he prays that he
ought to be reinstated and the order of termination
quashed.
3. The stand of the State in the counter affidavit
is that within months of the appointment of the
petitioner, he came to be terminated. When the higher
authorities came to learn that irregular appointments
have been made by the then Divisional Forest Officer,
just before his retirement, under what was known as
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Draught Prone Area Programme. No procedure for
appointment was followed. It was a unilateral
decision of the then Divisional Forest Officer to make
the appointment in total breach of not only Articles
14 and 16 of the Constitution of India but even the
laid down procedure in this regard.
4. It is also their stand that even if the stand of
the petitioner is accepted that the appointment made
by the Divisional Forest Officer was within his rights
and powers but the letter of appointment itself
indicates that it was subject to approval by the
selection board because the letter of appointment
categorically states that the appointment was
temporary, subject to approval by the appointment
board and the petitioner fulfilling the criteria laid
down in this regard. They further contend that the
office order No.52A dated 3.11.1995 lays down
procedure for such appointments but all this was given
a go-by as the Divisional Forest Officer was going to
retire in a couple of months time. When these facts
did emerge, not only the appointment of the petitioner
but other similarly situated persons appointed by the
then Divisional Forest Officer came to be terminated
by different orders.
5. Counsel for the petitioner has fairly accepted
the position that there is no approval given by the
board with regard to his appointment. Some time in
the year 2000 the board was constituted but the board
never met and took no decision. Inaction on the part
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of the respondents will not stand in the way of
petitioner's continuance or his appointment being
invalid in any other manner.
6. The so-called document annexed by the petitioner
with regard to the constitution of the committee is an
interesting piece of document by itself. Annexure-18
is dated 14.11.2000. By the said letter the board
was constituted to consider the case of the
petitioner, who was temporarily appointed in light of
CWJC No. 10157 of 1997, which was filed by the
petitioner earlier.
7. Two aspects must be noted about the constitution
of the so-called committee, one that there was no
direction with regard to appointment of the petitioner
on the post in CWJC No.10157 of 1997. This writ was
filed by the petitioner for a direction for payment
of salary to him. There was no occasion for the High
Court to give such a direction, which is evident from
the order annexed. There was not even a murmur on the
issue of appointment. In fact it is evident from
reading of Annexure-10 that the Court was well
informed about the termination of the petitioner's
service when the question of payment of wages and
salary was raised by him and the Court gave no
direction on the said fact.
8. The other aspect which is quite glaring is that
when the petitioner was already terminated on 1.8.96
where was the occasion for the board to meet and
consider his case for approval for continuance of the
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petitioner to the appointment made by the then
Divisional Forest Officer. Obviously, even the
authorities have been kept in dark with regard to the
actual state of affairs.
9. It cannot be a case of the petitioner that the
Divisional Forest Officer was the total monarch and he
had all the authority to make appointment according
to his wish and desire. Any appointment made under
the State is required to satisfy the conditions laid
down under Articles 14 and 16 of the Constitution of
India. Obviously, the petitioner has been obliged by
an officer who imparted a parting gift upon the
petitioner just before he left the office. Such
manner or method of appointment can not be certified
by the court to be legal and valid even though some
kind of power was vested on the Divisional Forest
Officer. In addition to that, the appointment of the
petitioners in terms of Annexure-6 was on temporary
basis. If the rule or procedure has not been followed
and was not approved by the concerned competent board
then there is no occasion for this Court to direct
continuance of the petitioner on the post or to
interfere with Annexure-8.
10. Yet another interesting aspect has emerged from
the affidavit which has been tendered to the Court
today, which has been levelled as a supplementary
affidavit on behalf of the petitioner. The petitioner
has procured some letters and documents to show that
he is still working under the respondents in some
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capacity or the other. This Court has nothing to say
or comment upon such document. That by itself also is
an indicator that the petitioner is still hovering
around the office in whatever capacity despite the
order of termination issued way back in 1996 and some
of these procured documents cannot make out a case
that he was legally and validly appointed way back on
3.11.1995.
11. The writ application has no merit. It is dismissed. However, there will be no order as to cost.
(Ajay Kumar Tripathi,J) Patna High Court:
The 9th September, 2010 NAFR/ R.K.Pathak.