Jharkhand High Court
Anirudh Behari Prasad And Ors. vs The State Of Jharkhand, The Director, ... on 26 July, 2006
Equivalent citations: [2006(4)JCR467(JHR)], 2007 LAB I. C. (NOC) 346 (JHAR.) = 2007 (1) AIR JHAR R 595, 2007 (1) AIR JHAR R 595 (2006) 4 JCR 467 (JHA), (2006) 4 JCR 467 (JHA)
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT
S.J. Mukhopadhaya, A.C.J.
1. The services of the appellants having been terminated by the Director, Secondary Education-cum-Joint Secretary, vide Memo No. 892 dated 28th June, 1997, on the ground of illegal appointment and the writ petitions being C.W.J.C. No. 7859 of 1997 and W.P.(S) No. 3867 of 2002 having been dismissed by the learned Single Judge vide common judgment dated 6th August, 2003, the instant appeal has been preferred by the appellants.
2. The main plea taken by the appellants is that they having been legally appointed after following the procedure of appointment and their services having been regularized as back as in the year, 1990, there was no occasion for the authorities to reopen the issue.
3. Learned Counsel for the appellants relied on the enclosures, attached with the writ petition and memo of appeal in support of the claim that advertisement was issued in pursuance of which the appellants applied, called for interview and after selection and preparation of merit list, they were appointed in the services of the State. Reliance was also placed on a decision of the Supreme Court, rendered in the case of Secretary, State of Karnataka v. Uma Devi , wherein, the Supreme Court while laid down ratio with regard to regularization of the services of irregular appointees, illegal appointees etc., clarified that the regularization, if any already made, but not sub judice, need not be reopened based on this judgment.
Counsel for the appellants further relied on a decision of the Supreme Court, rendered in the case of B.N. Nagarajan v. State of Karnataka and submitted that irregular appointment, if earlier made, can be regularized.
4. On the other hand, according to the counsel for the State, the appellants having been appointed illegally, regularization of their services was not permissible. The respondent-State has also disputed the plea, taken by the appellants, that they were appointed after advertisement, published in the newspaper, by a valid selection committee and competent authority.
5. The appellants have relied on a notice, as was issued by the District Education Officer, Dumka, vide Memo No. 6409-10 dated 8th December, 1989, which, according to them, is the advertisement for appointment to the posts of Clerk. Annexure 2 series are different letters, issued on 1st March, 1988 by the District Education Officer, Dumka, which, according to the appellants, are the interview letters, issued to them for their appearance at the interview, which was held on 15th April, 1988. Annexure 3 series to the memo of appeal are two sets of chart, prepared under the signature of some persons, stated to be the officers of the department, Part I of which, according to the appellants, is the attendance, as given on the date of interview, and Part II is the merit list. The other enclosures, again shown as Annexure 3 series, issued on different dates between May, 1988 and May, 1989 by the District Education Officer, Dumka, have been enclosed to show that they are the letters of initial appointment of the appellants. Annexure 6, letter No. 319 dated 16th November, 1990, issued by the Regional Deputy Director of Education, Santhal Parganas Division, Dumka, has been enclosed along with the report, enclosed therein, to suggest that the Regional Deputy Director of Education, Santhal Parganas Division, Dumka, after enquiry has also accepted that the appointments were made after following the procedure i.e. after advertisement, calling for the interview and selection through a Selection Committee. It was also submitted that the initial appointments were subsequently regularized by a Divisional Committee in the year, 1990, as reported by the Regional Deputy Director of Education, Santhal Parganas Division, Dumka.
6. The procedure of appointment against Class III posts has been laid down by the State vide Circular No. 16440 dated 3rd December, 1980, issued from the Personnel & Administrative Reforms Department of the then State of Bihar. As per the said guidelines, vacancies are to be notified through the Employment Exchange, advertisement is to be published in the newspaper, selection is to be made at the district level and for the purposes of appointment to the posts of Clerk, knowledge of Hindi and English Typewriting has been made essential. The District Level Selection Committee is to be chaired by the District Head i.e. District Magistrate/Deputy Commissioner of the District, who is to nominate senior officer of the district as one of the members and the District Welfare Officer as the other member. Merit list is to be prepared on the basis of marks, obtained by the candidates; Part A should contain the names of the persons, who are in the merit list and Part B should contain the names of the persons, who are in the waiting list. It is only after the recommendation of such Committee, appointment against Class III posts of Clerk is to be made in any Mofassil (District) of the State.
7. From the so called advertisement (Vigyapti), contained in Memo No. 6409-10 dated 8th December, 1989 it will be evident that it was not published by the District Head i.e. District Magistrate/ Deputy Commissioner of the District. The District Superintendent of Education, Dumka, published the same in his own office and copy of the same was forwarded to the Block level and Headquarter of the Education Department only, A copy of the same seems to have been forwarded to the District Employment Officer, Dumka, on 10th December, 1987 but there is nothing on the record to suggest that it was actually received by the Employment Exchange.
8. Admittedly, no advertisement was published in any of the newspapers and as per the report of the Regional Deputy Director of Education, Santhal Parganas Division, Dumka, it appears that notices were published only in the Notice Board of one or other office of the Education Department and not other departments.
9. From the interview letters also it will be evident that the District Education Officer, Dumka, asked the candidates to appear before him in his Chamber on 15th April, 1988. So far as the so called merit list is concerned, though it bears the signature of one or other persons but does not disclose as to who was the member. Neither it is the case of the appellants that the District Magistrate/ Deputy Commissioner of the District chaired the said Selection Committee nor there is anything on the record to suggest that the District Welfare Officer was one of the members of the said Committee. The so called merit list shows dates of birth, qualification and knowledge of typing but it did not contain the marks, obtained by one or other candidate. What is the basis for placing one or other candidate in the merit list i.e. from serial No. 1 onwards has also not been reflected therein.
10. From the letters of appointment it will be evident that they were issued by the District Education Officer, Dumka in between May, 1988 and May, 1989. The appointments were made on temporary and provisional basis (meaning is not clear) for a period of three months, which appears to have been extended subsequently.
11. From letter No. 385 dated 25th November, 2002, issued by the Regional Deputy Director of Education, Santhal Parganas Division, Dumka (at page 111 of the memo of appeal) it will be evident that no advertisement was published in the newspaper rather some sort of notice was displayed. Though the District Education Officer, Dumka, was not the appointing authority, he issued the letters of appointment.
12. Counsel for the appellants, referring to Rule 8 of the Bihar Nationalized Secondary School (Condition of Service) Rule, 1983, submitted that the cadre of Class III Non-teaching employee is a District Cadre and the District Education Officer, being their controlling authority, was empowered to appoint the appellants and others. However, such submission cannot be accepted in view of letters of appointment, enclosed by the appellants, as contained in Annexure 3 series. From the letters of appointment, it will be evident that they were appointed against Class III posts of Clerk, either in different Project Schools or in the offices of the District Education Officer. The appellants having not been appointed in any of the Nationalized Secondary Schools, the provisions of Bihar Nationalized Secondary School (Condition of Service) Rules, 1983 is not applicable to the posts, against which the appellants were appointed. Further, it will be evident from Rule 8(1) of the Bihar Nationalized Secondary School (Condition of Service) Rules, 1983 that the procedure for appointment of Class III employees were to be followed, as circulated vide Letter No. 16440 dated 3rd December, 1980, as referred and discussed above. It has already been pointed out that the said procedure has not been followed in the matter of appointment of the appellants.
13. In the case of Sujeet Kumar Sah v. State of Jharkhand and Ors. L.P.A. No. 660 of 2005 a Division Bench of this Court by its judgment dated 4th May, 2006 held that an illegal appointment cannot be legalized. Similarly an appointment ab inito void can not be recognized.
In the case of Secretary, State of Karnataka v. Uma Devi (supra), the Supreme Court held that illegal appointment cannot be legalized and has deprecated such regularization.
14. From the aforesaid facts, it will be evident that no procedure was followed and the appointments were made in violation of Articles 14 and 16 of the Constitution of India, without calling for advertisement in the newspaper. The Selection Committee, which is stated to have recommended the names of the appellants, was not competent enough. The so called merit list cannot be termed to be a merit list, having not been prepared on the basis of the marks, obtained by the candidates, nor having been prepared on the basis of any test. Though the interview was called for, even no mark was given at the interview.
15. Apart from the aforesaid facts, it will be evident that the letters of appointment were issued to the appellants by the District Education Officer, Dumka, who had no jurisdiction to make such appointment against Class III posts of Clerk. Thus, the appointments of the appellants being ab inito void, it was always open to the authorities not to recognize such appointments, made by an authority, who was not competent. We find no merit in this appeal, which is, accordingly, dismissed. However, in the facts and circumstances there shall be no order as to costs.