Patna High Court
Amresh Kumar Singh vs State Of Bihar & Anr on 29 August, 2017
Bench: Chief Justice, Sudhir Singh, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1028 of 2007
IN
Civil Writ Jurisdiction Case No. 7493 of 2000
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Amresh Kumar Singh, son of Sri Radha Prasad Singh, resident of village and Post
Office- Sadanandpur, P.S. Ballia, District- Begusarai
.... .... Appellant/s
Versus
1. The State of Bihar
2. The Director (Secondary Education), Bihar, Patna
.... .... Respondent/s
with
===========================================================
Letters Patent Appeal No. 1509 of 2009
IN
Civil Writ Jurisdiction Case No. 3112 of 2001
===========================================================
1. The State Of Bihar
2. The Director (Secondary Education) Bihar, Patna
3. The Deputy Director (Secondary Education), Bihar Secondary Education
Office, Budha Marg, Patna
4. The District Education Officer Patna
5. The District Education Officer Begusarai
6. The Principal R.S.S.M. Railway Aided High School, Mokama Ghat, Patna
.... .... Appellant/s
Versus
1. Surendra Prasad Mahto @ Surendra Pd. Mahto S/O Sri Ram Sagar Mahto Vill-
Banbaripur, P.S. Bhagwanpur, Distt. Begusarai
.... .... Respondent/s
with
===========================================================
Miscellaneous Jurisdiction Case No. 6050 of 2012
===========================================================
1. Amresh Kumar Singh S/O Shri Radha Prasad Singh Resident Of Village & Post
Office- Sadanandpur, P.S- Balia, District- Begusarai.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Director, (Secondary Education), Bihar, Patna.
.... .... Respondent/s
===========================================================
Appearance :
(In LPA No.1028 of 2007)
Patna High Court LPA No.1028 of 2007 dt.29-08-2017
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For the Appellant/s :
Mr. Mr. Amresh Kr. Singh (in person)
Mr. Sushil Kumar Ray, Advocate
Mr. Onkar Kumar, Advocate
For the Respondent/s : Mr. Sunil Kr. Mandal, SC-3
Mr. Arjun Prasad, AC to SC-3
Neelam Kumari, AC to SC-3
Smt. Nutan Kumari, Advocate (SC15)
(In LPA No.1509 of 2009)
For the Appellant/s : Mr. Bipin Kr.(Ac To Sc15)
For the Respondent/s : Mr. Sushil Kumar Manick, Advocate
Mr. Upendra Pratap Singh, Advocate
(In MJC No.6050 of 2012)
For the Petitioner/s : Mr. Amresh Kr. Singh (in person)
Mr. Sushil Kumar Ray, Advocate
Mr. Onkar Kumar, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date: 29-08-2017
The matter has been placed before this Full Bench in
view of an order passed on 22.2.2008 by a Division Bench of this
Court in L.P.A. No.1028 of 2007. Before adverting to take note of
the reference made and before considering the question involved in
the matter, we may take note of certain factual aspects which have
relevancy with regard to the issue in question.
In the District in question, namely, Begusarai, the
Education Department through the District Education Officer,
conducted certain recruitment process based on a Circular issued by
the State Government on 3.12.1980. Names were called for from the
Patna High Court LPA No.1028 of 2007 dt.29-08-2017
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Employment Exchange and for filling up certain vacancies that were
available in the District in question on the post of Clerk, the District
Education Officer conducted the process of recruitment after
requisitioning names from the Employment Exchange and in the
year 1990 i.e. on 9.3.1990 made appointments to the post in
question. In L.P.A. No.1028 of 2007, the appellant therein Shri
Amarish Kumar Singh was appointed on 9.3.1990 and in L.P.A.
No.1509 of 2009 the respondent Surendra Prasad Mahto was
appointed on 29th of August, 1989. Apart from these two persons, 28
other persons were also appointed in similar fashion on various
dates. After these appointments were effected, in the year 2001 the
State Government issued instructions to the departmental authorities
that these appointments are not in accordance with the requirement
of law and, therefore, all these appointments should be cancelled.
Consequently thereof, in the year 2000 and 2001, all the thirty
persons were terminated, as instructed by the State Government.
However, it may be taken note of that much before such termination
was brought into effect, the services of all the 30 persons were
regularized by the competent authority. Resultantly, writ petitions
were filed before this Court by all the thirty employees and records
indicate that after hearing all concerned, the different Benches of
this Court allowed the writ petitions and directed for reinstatement
Patna High Court LPA No.1028 of 2007 dt.29-08-2017
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of the employees with consequential benefits. The following writ
petitions were allowed by this Court namely, C.W.J.C.
Nos.1986/2001, 7206/2000, 7511/2000, 11081/2000, 11120/2000,
11399/2000, 11407/2000, 11489/2000, 11511/2000, 11529/2000,
11650/2000, 11853/2000, 11908/2000, 11930/2000, 11933/2000,
11962/2000, 12129/2000, 12369/2000, 12940/2000,
13180/2000,2045/2001, 2289/2001, 4628/2008 and 6125/2007.
Challenging the aforesaid orders passed in the writ
petitions, L.P.A's. were filed by the State Government and a
Division Bench of this Court on 21.4.2011, dismissed the following
L.P.A's. namely L.P.A. Nos.1471/2009, 1248/2009, 1486/2009,
1493/2009, 1495/2009, 1515/2009, 134/2010, 1308/2009,
1338/2009, 1437/2009, 1455/2009, 1460/2009, 1463/2009,
1456/2009, 1354/2009 and 1360/2009, filed by the State
Government and it is an admitted position that after the L.P.A's.
were dismissed by the Division Bench on 21.4.2011, as a
consequence thereof all these persons have been taken back in
service and are still working.
We are informed today that out of thirty persons who
were so dealt with in identical fashion, twenty-eight have been taken
back in service and are working and orders with regard to some of
them have been produced before us which is dated 19.8.2011 issued
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by the Directorate of Secondary Education, Government of Bihar,
which goes to show that twenty-eight persons, as detailed in the said
letter and order, have been taken back in service by virtue of the
orders passed by this Court in the writ petitions and L.P.A's. as are
indicated hereinabove.
However, in L.P.A. No.1509 of 2009, the State
Government again challenges the order passed by the learned Writ
Court even though L.P.A's. filed by the State Government being
L.P.A. No.1471 of 2009 (State of Bihar vs. Md. Sham Shad) and
various other appeals have already been dismissed as indicated
hereinabove on 21.4.2011. Likewise, in C.W.J.C. No.7493 of 2000,
fortunately or unfortunately for the employees therein, the writ
petition was dismissed and by filing the present appeal i.e. L.P.A.
No.1028 of 2007 claiming similar benefit after dismissal of the
L.P.A. in view of the order dated 21.4.2011 passed in L.P.A.
No.1471 of 2009 and various other cases, i.e. L.P.A. No.779 of 2007
etc., however a Division Bench of this Court found that in the
L.P.A's. decided on 21.4.2011, the principle of law laid down in the
case of Secretary, State of Karnataka vs. Uma Devi & Ors., 2006(2)
P.L.J.R. S.C. 363, and certain other judgments of the Hon'ble
Supreme Court including in the case of Madhya Pradesh vs. Lali
Kumar Verma, (2007) 1 SCC 575, has not been considered and,
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therefore, holding that the order passed on 20th of January, 2008 in
L.P.A. No.799 of 2007 and thereafter on 21.4.2011 in L.P.A.
No.1471 of 2009 do not lay down the correct precedent, the matter
has been referred to us.
When we were dealing with the issues in the matter
and were in the process of adjudicating the legal question, learned
counsel appearing for the appellant in L.P.A. No.1028 of 2007
brought to our notice the fact as are indicated hereinabove by filing
M.J.C. No.6050 of 2012 and brought on record the State's Litigation
Policy and made the submission by contending that when thirty
employees were appointed together and when the services of all the
30 such persons were dispensed with in identical situation and when
after contesting the matter in 28 cases the employees have been
granted benefit, there is no reason as to why benefit should not be
granted to the appellant in L.P.A. No.1028 of 2007. He invited our
attention to Clause 4, Annexure C1, of the Bihar State Litigation
Policy, 2011 and asserts that in similarly covered matters, all
identically situated persons should be granted similar benefit. He
also pointed out that after orders were passed by the Division Bench
on 21.4.2011, the State Government, as indicated hereinabove, vide
order passed on 19th of August, 2011 has reinstated twenty-eight
persons.
Patna High Court LPA No.1028 of 2007 dt.29-08-2017
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Faced with the aforesaid situation, on the last date of
hearing, we deemed it appropriate to direct the learned counsel
representing the State Government to seek instruction and inform
this Court as to whether the State Government has anything to say in
the matter as a model employer why the State's Litigation Policy
should not be implemented in this case now, at least in the cases of
these two employees, when twenty-eight such employees have
already been granted the benefit. We have been communicated today
by the learned counsel appearing for the State Government that the
facts, as are narrated hereinabove, are correct. Thirty persons were
dealt with in identical fashion and after the orders passed in the writ
petitions, 28 persons have been reinstated and are still working and
in the case of these two persons, matter has to be decided by this
Court. As far as L.P.A. No.1509 of 2009 is concerned, in that case,
the writ petition of the respondent employee Surendra Prasad Mahto
@ Surendra Pd. Mahto has been allowed and decided and it is an
appeal filed by the State Government whereas in L.P.A. No.1028 of
2007, the writ petition filed by the employee Amarish Kumar Singh
has been dismissed by the learned Writ Court by recording a finding
that his appointment falls in the category of 'illegal appointment'
and, therefore, he cannot be extended any benefit.
We are conscious of the law laid down in the case of
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Uma Devi (supra) and various other legal issues that are involved in
the matter, but the fact remains that in the cases of thirty employees
who were dealt with under similar circumstances, not only similar,
but under identical situations, twenty-eight employees, by virtue of
the orders passed in the writ petitions and L.P.A's. have been
reinstated and it is only two persons who are litigating the matter.
The Bihar State Litigation Policy, 2011, as indicated hereinabove,
mandates that all similarly situated employees should be granted the
benefit of covered matters and if orders of the Court have been
implemented in case of certain litigants, it should be implemented in
respect of all other identically situated persons. If the State
Litigation Policy is to be implemented, we have no hesitation in
holding that the present respondents should also be dealt with in
identical fashion i.e. respondent Surendra Prasad Mahto @ Surendra
Pd. Mahto in L.P.A. No.1509 of 2009 and the appellant Amarish
Kumar Singh in L.P.A. No.1028 of 2007 in identical situation and
once on 21.4.2011 a Division Bench of this Court in all other cases
has granted benefit to the employees, there is no reason to go into
the legal questions involved in the matter and answer them when we
find that in the cases of twenty-eight employees the benefit has been
granted to them by virtue of the orders passed by this Court.
Accordingly, we are of the considered view that the
Patna High Court LPA No.1028 of 2007 dt.29-08-2017
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legal question referred for consideration and the tenability or
otherwise of the orders passed on 20th of January, 2008 in L.P.A.
No.799 of 2007 and the order passed on 21.4.2011 in L.P.A.
No.1470 of 2009 and other cases need not be gone into now in these
two cases.
The legal questions are kept open, to be considered in
any appropriate case, but taking note of the fact that under identical
situations employees, more than twenty-eight in number, have been
granted the benefit, we dismiss the L.P.A. filed by the State
Government i.e. L.P.A. No.1509 of 2009, allow the L.P.A. filed by
the appellant Amarish Kumar Singh, i.e. L.P.A. No.1028 of 2007, in
view of the findings recorded on 20th of January, 2008 in L.P.A.
No.779 of 2007 and on 21.4.2011 in L.P.A. No.1471 of 2009, quash
the order passed by the learned Writ Court in C.W.J.C. No.7493 of
2000 and direct that both Amarish Kumar Singh and Surendra
Prasad Mahto @ Surendra Pd. Mahto should be dealt with in
identical fashion as has been done in the cases of twenty-eight
persons who have been reinstated in service vide order dated
19.8.2011. The issue with regard to applicability of the orders passed on 21.4.2011 in L.P.A. No.1471 of 2009 and on 20th of January, 2008 in L.P.A. No.799 of 2007 to other employees apart from the thirty employees involved in the matter is kept open, to be Patna High Court LPA No.1028 of 2007 dt.29-08-2017 10/11 considered as and when required in accordance with law and it is made clear that the orders passed by this Court on 21.4.2011 in L.P.A. No.1471 of 2011 and on 20th of January, 2008 in L.P.A. No.779 of 2007 will not be treated as a precedent for the purpose of its applicability to any other employees other than the thirty employees involved in the matter. The State Government will have liberty to challenge the orders passed in these L.P.A's. with respect to any other employee except these thirty employees.
Accordingly, L.P.A. No.1028 of 2007 is allowed. Order passed in C.W.J.C. No.7493 of 2000 quashed and Amarish Kumar Singh is directed to be reinstated and granted the benefit as has been granted to the twenty-eight employees by virtue of the order passed on 19.8.2011 by the State Government. Similarly L.P.A. No.1509 of 2009 is dismissed. The order passed by the learned Writ Court is upheld and the respondent Surendra Prasad Mahto @ Surendra Pd. Mahto is also directed to be granted the benefit of the order dated 19.8.2011 passed by the State Government.
M.J.C. No.6050 In view of the order passed today in L.P.A. No.1028 of 2007 and L.P.A. No.1509 of 2009, no orders are now necessary to be passed in this M.J.C. No.6050 of 2012. The same stands disposed Patna High Court LPA No.1028 of 2007 dt.29-08-2017 11/11 of.
In view of the aforesaid, we see no reason now to answer the reference and as we are keeping the question involved and referred to us for consideration open, we dispose of the L.P.A's and the M.J.C. (Rajendra Menon, CJ) (Sudhir Singh, J) (Anil Kumar Upadhyay, J) K.C.jha/-
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