Patna High Court
Nand Kishore Raut And Ors. Etc. vs State Of Bihar And Ors. Etc. on 20 November, 1990
Equivalent citations: 1991(39)BLJR441, (1992)ILLJ610PAT
JUDGMENT S. Ali Ahmed, J.
1. Civil Writ Jurisdiction Case No. 5650 of 1988 was placed for admission before a Division Bench consisting of Mr. Justice P.S, Mishra and Mr. Justice S.B. Sinha on June 12, 1988. The attention of the Bench was drawn to the order passed on C.W.J.C No. 151 of 1988 wherein it was said that the Excise Deputy Commissioner (E.I.B.) would examine the cases of the petitioners who would appear before him either on the 23rd or the 24th May, 1988, and would appoint them on being satisfied that they were physically fit and had not incurred such disqualification which would disentitle them to the appointment and that the petitioners should not be refused appointment on the ground that they have crossed the age limit. It appears that it was urged before the Division Bench that the order was not only a precedent but also was ratio of the order and, as such, other similarly situated employees have right to be given the relief which the petitioners of that case were given. The Bench doubted the correctness of the decision and directed this case to be heard by a larger Bench after admitting the same. Thereafter C.W.J.C No. 5250 and C.W.J.C. No. 5705 of 1988 were also admitted and directed to be heard along with C.W.J.C. No. 5650 of 1988. I may mention here that the order passed in C.W.J.C. No. 151 of 1988 was based on the stand taken by the State and the Court did not decide the matter as such. Learned counsel appearing for the petitioners in all the three cases frankly stated before us that it is not at all necessary to consider the correctness of the order passed in C.W.J.C. No. 151 of 1988. Each one of the learned counsels argued the cases without reference to the order passed in C.W.J.C. No. 151 of 1988. I think they were correct in not referring to the order passed in C.W.J.C. No. 151 of 1988 as the order passed in that case was purely on the facts of that case and a decision on fact is an authority only for that case and does not create any precedent.
2. Since the facts of the three cases are not similar, therefore, it will be convenient to deal with them separately.
C.W.J.C. No. 5650 of 1988:
3. There are ten petitioners in this case. They, along with some others, filed applications for appointment as temporary excise constables in response to an advertisement calling for applications. The petitioners were interviewed and a panel was prepared which included the names of these petitioners. The Superintendent of Excise, West Champaran, appointed these petitioners as per Annexure 5 on December 3, 1981 against vacancies available at that time. By Annexure 1 dated March 24, 1983, the services of these petitioners were terminated. The petitioners thereafter filed a representation dated May 31, 1983 (Annexure 9) with a request to regularise their services. It appears that no final order was passed on the representation filed by the petitioners although some correspondence with the authority on the subject was made. Ultimately it is said that on a fresh representation filed by the petitioners before the Minister of State (Excise), Government of Bihar, the Minister directed the Excise Commissioner to take steps for absorbing the petitioners after examining the files concerned and also to place the records before him. A copy of this order has been filed as Annexure 10. The grievance, however, is that in spite of the order passed by the Minister of State, nothing is being done. In these circumstances, this application has been filed praying to quash letter No. 682, dated March 24, 1983 as contained in Annexure 1, and to direct the respondents to absorb them in the cadre of excise constable.
4. A counter-affidavit has been filed on behalf of respondent Nos. 1 to 4. In paragraph 17 of the counter-affidavit it has been accepted that letter No. 5684 dated December 17, 1987 was issued by the Excise Commissioner directing the different district head-quarters for giving preference to the retrenched excise constables in regular appointment. In paragraph 18 of the counter-affidavit, it has been specifically stated that when the respondent-State will fill up the vacancies of the excise constables, they will consider the cases of the petitioners in light of the letter dated December 17, 1987 for appointment of petitioners as retrenched employees. In view of this categorical statement, learned counsel for the petitioners submitted that a direction may be issued to the respondents in view of the stand taken by the State in paragraph 18 of the counter-affidavit. Mr. Standing Counsel No. 1 appearing on behalf of the State has no objection to this. I accordingly allow the application and direct that while making appointment to the post of Excise Constables, they will first consider the cases of these petitioners, along with other retrenched Excise Constables. Appointments from open market to the post of Excise Constables will not be made unless the cases of all retrenched Excise Constables are considered in accordance with the Government decision contained in letter dated December 17, 1987. Needless to say that age has not been treated as bar in cases of appointments of retrenched employees. The same will be applicable to the retrenched Excise Constables also.
C.W.J.C.No. 5250 of 1988:
5. There is only one petitioner in this case. His prayer is to direct the respondents to consider his case for appointment to the post of Excise Constables against the existing vacancy in accordance with the undertaking given by respondent No. 2 in his letter dated June 2, 1983 (Annexure 4). In The Pradeep (a Hindi daily) of August 13, 1979, an advertisement appeared calling for applications for appointment of 44 Excise Constables (42 male and 2 female). In pursuance of this advertisement the petitioner made an application. After interview 42 persons including the petitioner were selected and a panel was prepared. The petitioner was at serial 39 in that list. After other formalities, it is said, the petitioner was appointed as an Excise Constable by Memo No. 1015 (3) dated February 22, 1980 (Annexure 2). Seven other persons, namely, Ram Nagina Singh, Nagendra Panjiyar, Gagandeo Singh, Yogendra Paswan, Nandan Jha, Purushottam Singh and Devendra Singh were also appointed along with the petitioner. All these persons worked till June 3, 1983 when they were informed that their services stood terminated - vide Annexure 3. The petitioner, along with the aforesaid seven persons filed a writ application in this Court which was numbered as C.W.J.C. No. 2595 of 1983 for quashing the order of termination from service. A counter-affidavit was filed in the case. Paragraph 5 of the counter-affidavit ran as follows:
"That the aforesaid 8 persons whose services were terminated, made an application before the Member, Board of Revenue and the Member, Board of Revenue after hearing allowed their applications and they were directed to be reinstated. Accordingly, the Excise Commissioner issued letter vide Memo No. 11049/82 dated June 2, 1983 directing the Collector, Sitamarhi to reinstate the aforesaid 8 persons and to remove the petitioners and place them in their original position in the approved list, so that their services may be utilised as and when required."
In view of the aforesaid statement made in the counter-affidavit, the application was withdrawn. After the writ application was withdrawn, the respondents did not appoint the petitioner and other seven persons and with a view to frustrate the prospect of the petitioner and other seven persons brought some Excise Constables on transfer from other districts. Representations were made protesting against this design, but that did not yield any result. In these circumstances, other seven persons, namely, Ram Nagina Singh, Nagendra Panjiyar, Gagandeo Singh, Yogendra Paswan, Nandan Jha, Purushottam Singh and Devendra Singh filed C.W.J.C. No. 151 of 1988 praying to direct the respondents to implement the undertaking given to this Court in C.W.J.C. No. 2595 of 1983. Since an undertaking had already been given by the State, therefore, the State agreed to appoint the petitioners in C.W.J.C. No. 151 of 1988, if they were physically fit. A direction to that effect therefore, was issued. The petitioner says that since he was also one of the petitioners in C.W.J.C. No. 2595 of 1983 and the undertaking was given with respect to the petitioner also, therefore, he too appeared before the Deputy Commissioner, Excise, after orders were passed in C.W.J.C. No. 151 of 1988, but the Deputy Commissioner, Excise refused to consider the case of the petitioner on the ground that the order was confined only to the petitioners of C.W.J.C. No. 151 of 1988. Learned counsel on these facts said that there is no jurisdiction for treating the petitioner differently as the undertaking given by the State in the earlier writ application was applicable to the petitioner also. No counter-affidavit has been filed on behalf of the State. Mr. Standing Counsel No. 1 very fairly stated that the State was bound by the undertaking given in C.W.J.C. No. 2595 of 1983 and the same was applicable with respect to the petitioner also. He, however, stated that the petitioner should have joined C.W.J.C. No. No. 151 of 1988. He said that since he was not a petitioner, therefore, the direction issued in that case would not be applicable to the petitioner. That may be so but the undertaking given by the State in the earlier writ application still stands and the respondents should have considered the case of the petitioner on the basis of the undertaking given to this court. I feel no justification as to why the respondents should not consider the case of the petitioner after an unambiguous undertaking given in C.W.J.C. No. 2595 of 1983. For these reasons, I allow this application also and direct respondent No. 3 to appoint the petitioner in case he is physically fit and has not incurred any disqualification, but the age factor should not be treated as a bar to his competency.
C.W.J.C. No. 5705 of 1988:
6. There are eleven petitioners in this application. Their prayer is to quash the orders dated March 28, 1987 and April 1, 1987 as contained in Annexures 5 and 6 issued by respondent Nos. 3 and 4 respectively terminating the services of these petitioners as Excise Constables. It has also been prayed that a declaration that the petitioners be deemed to be in service as Excise Constables continuously and uninterruptedly be made. Lastly it has been prayed that a direction to the respondents be made to consider the case of the petitioners for appointment as Excise Constables against the vacant posts. It is said that a number of posts in the rank of Excise Constables were lying vacant as a result of which the working of the Excise Department was handicapped on account of shortage of hands. It is said that respondent No. 4, the Superintendent of Excise, Dumka in order to cope with the situation decided to make appointment on purely temporary basis/ad-hoc basis on the post of Excise Constable. Petitioner No. 1, Sunder Raut and petitioner No. 2, Surendra Ram were appointed by respondent No. 4 with effect from January 1, 1967. Petitioner Nos. 3, 4 and 8 were appointed with effect from January 10, 1977. With respect to petitioner Nos. 5, 6, 7, 9, 10 and 11, it is stated that the then superintendent of Excise, Dumka made local advertisement for appointment of Excise Constables and held interview for that purpose. It is said that in that interview, petitioner Nos. 5, 6, 7, 9, 10 and 11 were appointed with effect from April 14, April 8, April 11, May 1, April 20, and September 17, 1981 respectively. According to the petitioners, all of them worked almost continuously until their services were terminated by Annexure 6. It is said that in pursuance of the decision taken by the State Government, the Joint Secretary, Excise, by his letter No. 4295 dated June 13, 1981 (Annexure 1) communicated the decision of the State Government to all the Superintendents of Excise that those who were appointed prior to 1980 should be absorbed against the vacancies of 1981. The Excise Commissioner vide his letter No. 4737 dated August 16, 1983 wrote to all the Excise Superintendents to send detailed information regarding persons working on ad hoc basis against substantive posts which could not be filled up due to prohibition (Annexure 2). The Superintendent of Excise, Dumka by his letter (Annexure 3) sent the list of persons, who were working on ad hoc basis. That list shows that petitioners Nos. 1 and 2 had been working since 1976 and petitioner Nos. 3, 4 and 8 were working since 1977. It appears that no action was taken to regularise the services of the petitioners. On the other hand, it is said that respondent No. 3 ignoring all previous orders and directions issued letter No. 1252 dated March 28, 1987 (Annexure 5) directing respondent No. 4 to terminate the services of all ad hoc employees working against substantive posts. In pursuance of the aforementioned letter, the Superintendent of Excise, Dumka issued Office Memo No. 236 (13) dated April 1, 1987 terminating the services of the petitioners (Annexure 6). It is said that thereafter representations were filed before the Minister of State (Excise), who directed absorption of the petitioners, but that order also was not implemented. In these circumstances, the petitioners have come to this Court with a prayer mentioned earlier.
7. In support of the application it is said that by letter dated December 17, 1987 (Annexure 10) issued by respondent No. 3, vacancies in the rank of Excise Constables in different districts were notified. It is said that in the erstwhile district of Santhal Parganas, there were 12 vacancies and it was said in the letter that such of the Excise Constables, who could not be absorbed on account of ban in the matter of appointment imposed by the State Government and, as such, had to be retrenched, will be given preference in the matter of appointment. It is, therefore, said that since these petitioners were working as Excise Constables and their services could not be regularised on account of ban leading to the order of termination, they should be considered and given preference in the matter of appointment to the post of Excise Constables in the district of Santhal Parganas. It has also been said that in similar situation the Excise Constables in the district of Sitamarhi, whose service were also terminated, were later on appointed as Excise Constables on the basis of an order passed by this Court in C.W.J.C. No. 151 of 1988. Further, it has been said that five persons mentioned in paragraph 27 of the writ application were also appointed as Excise Constables in the district of Patna after their services were terminated on the basis of an order as contained in Annexure 5.
8. A counter-affidavit has been filed accepting the position that the State Government had issued the letter dated December 17, 1987 mentioning that such of the Excise Constables whose services have been terminated will be given preference in the matter of appointment. It is said that on the basis of this letter the persons mentioned in paragraph 27 of the writ application were appointed in the district of Patna. It is also said that the petitioners of C.W.J.C. No. 151 of 1988 were appointed on the basis of an order passed by this Court on the stand taken by the State Government that they shall be appointed if and when vacancies arose. The stand taken by the respondents with respect to these petitioners is that their initial appointment made from time to time by respondent No. 4 itself was not regular and as such, the benefit given to retrenched constables will not be available to them as it will apply only to those who were legally appointed on temporary/ad hoc basis. In that connection it is said that petitioner No. 1 was appointed by the Excise Superintendent firstly on January 1, 1976. His services were terminated on August 7, 1982. Thereafter, he was again appointed on September 1, 1982. This time also the appointment was not made from the approved list prepared according to the rules. Further, there was no vacancy in the cadre of Excise Constable with effect from July 1, 1989. About the other petitioners also it has been stated that they were appointed on different dates against short of ficiating vacancies and their services were terminated many times earlier by the Superintendent of Excise before it was finally terminated by the order of Commissioner of Excise. It is also said that their appointments were also not made as per the prescribed rules and procedure by the Superintendent of Excise. It is also said that the appointments were made after June 30, 1980, when the State Government had imposed a ban on the appointment of Excise Constable and the Excise Superintendent defying the ban : appointed these persons against non-sanctioned posts. On these facts, the respondents tried to justify the order terminating the services of the petitioners.
9. According to the rules, a list of approved candidates is prepared in order to give them chance to officiate against temporary vacancies if and when vacancies occur. The list, which is approved by the Excise Commissioner, is maintained by the Excise Superintendent and he has : to make officiating appointment from amongst the candidates, whose names figure in the said list in accordance with the seniority and merit. Mr. Rajendra Pd. Singh, appearing on behalf of the petitioners, did not dispute this. Hehowever, urged that there were large number of cases where persons were appointed as Excise Constables without following the rules. He said that a decision was taken to regularise their services and with that in view, the Commissioner of Excise by his letter dated August 22, 1983 (Annexure 2) called for a list of such persons from the Superintendent of Excise. It is said that by Annexure 3, a list including the names of the petitioners was sent with recommendation to regularise their services. That is so, but nothing seems to have been done thereafter. Therefore, the fact that the names were called for by Annexure 2 and the Excise Superintendent by Annexure 3 sent the list of persons irregularly appointed will not mean that their appointments were approved and regularised either by the Commissioner or by the State Government. That, in my view, does not improve the situation in favour of the petitioners. Realising this difficulty, Mr. Rajendra Singh placed great reliance on Annexure 10, copy of the letter dated December 17, 1987 issued by respondent No. 3, the Commissioner of Excise. By this letter, the Commissioner of Excise informed all the District Superintendents of Excise about sanctioning of the posts of Excise Constables in different districts. It is also said that appointments should be made in accordance with rules and while doing so retrenched Excise Constables had to be given preference. Mr. Rajendra Pd. Singh, therefore, urged that the petitioners were retrenched Excise Constables and, as such, they should have been given preference in the matter of appointment as Excise Constables. He also said that Annexure 10 itself shows that 12 posts of Excise Constables were sanctioned in the district of Santhal Parganas and, as such all these 11 petitioners could be appointed. My initial reaction was to accept this argument but if I do so it may lead to very undesirable results. According to the instructions issued under Annexure 10, retrenched Constables have to be given preference. What does the expression 'retrenched Constables' mean? Does it mean a Constable, who was appointed lawfully and then his services were terminated or does it also include a person appointed without following the procedure and in defiance of the ban imposed for such appointment? If persons irregularly, illegally and without following procedures are appointed by persons, who are not authorised to make appointment, had to be included in the category of retrenched constables then that will mean that legitimacy is provided to such appointments and to provide legitimacy to such appointments will encourage people to make irregular appointments defying the procedure and ban. It will also encourage a job seeker to somehow grab a post without caring as to whether the person making appointments has power to appoint or not and as to whether the procedure for making appointment has been followed or not. This will create havoc in society. Therefore, while having full sympathy for these petitioners, I am of the view that 'retrenched Constables' in Annexure 10 means only such Constables who were not appointed illegally by person having no jurisdiction to appoint. These petitioners were appointed in defiance of the ban and without following the rules against unsanctioned posts. Therefore, the benefit mentioned under Annexure 10 cannot accrue to their favour.
10. Mr. Rajendra Pd. Singh relying on the decision in the case of Bhagwati Pd. v. Delhi State Mineral Development Corporation, (1990 -I-LLJ-320), urged that by working as Excise Constables for considerable time the petitioners have gained sufficient experience and, as such, they could be regularised in the cadre of Excise Constables. I do not think this contention is well founded. The Delhi State Mineral Development Corporation had laid some minimum qualification for appointment. The petitioners before the Supreme Court did not possess the minimum qualification, yet they were appointed as daily rated workers. Their claim was rejected by the Corporation that they did not possess minimum qualification and, as such, refused to regularise their services but allowed them to continue as daily wages workers. They were doing the same job which the regular employees were doing. In that context, the Supreme Court observed that once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification. In the instant case, the facts are entirely different. The appointments were made in defiance of the ban and without following the prescribed procedure. Furthermore, their services were terminated and that makes all the differences. The Supreme Court case, therefore, cannot be applicable to the facts of this case.
11. It was also urged that the retrenched Excise Constables of the districts of Sitamarhi and Patna were taken into regular employment in view of Annexure 10, the letter dated December 17, 1987 sent by the Commissioner of Excise. He says that the denial to apply Annexure 10 to these petitioners will amount to discrimination within the meaning of Articles 14 and 16 of the Constitution of India. There is no substance in this argument. The Excise Constables in the districts of Sitamarhi and Patna were re-employed because these appointments were not illegal and were made in accordance with the rules. Annexure 10 fully applied to those persons. The petitioners, therefore, cannot compare themselves with the Constables of districts of Sitamarhi and Patna who were taken back into employment after Annexure 10 was issued.
12. Learned counsel also faintly urged that the services of these petitioners were terminated without giving them any notice to show cause. He says that this amounted to violation of natural justice. I do not think learned counsel is correct in this point also. I have shown earlier that the appointments of the petitioners were made without following the procedure prescribed under the rules and in defiance of the ban imposed on such appointments. Further, the appointments were purely temporary and officiating and on ad hoc basis. Such appointments do not create any right on the incumbents and the principle of natural justice does not apply to cases like this. For these reasons, I do not see any merit in this application. It is accordingly dismissed.
N. Pandey, J.
13. I agree.
Nagendra Rai, J.
14. I agree.