Anil Kumar and Others vs The State of Bihar and Others

A.K. Ganguly, J.—This writ application has been filed by six persons who were appointed as Clerks in the Government Women''s Polytechnic College at Patna. For the purpose of deciding the exact nature of controversies raised in this writ petition detailed consideration of the facts of this case is not necessary. This Court, therefore, proposes to consider only those facts which are necessary for deciding the points which are at issue between the parties in this particular case.

The Petitioner''s case is that they were appointed to the posts of Clerk in the said College by the Principal of the Government Womens Polytechnic College on the request of the then Director, Department of Science and Technology. According to the Petitioners appointment was necessary on an urgent basis in order to immediately start the initial Sessions of the said College from March, 1985. Be that as it may, the Petitioners after their appointment in the year, 1985 on daily wage basis kept on praying for regularisation of their services and the matter was also raised on the floor of the Assembly, as it appears from the averment made in the writ petition. The Petitioner''s case is that they were repeatedly assured by the authorities concerned that their services will be regularised. Thereafter, the authorities turned down the Petitioners prayer or regularisation of the services and an advertisement was inserted in the daily newspaper namely, ''Hindustan Times'' for appointment of 52 clerks in different Polytechnic Colleges of Bihar. The Petitioner''s case is that pursuant to the Government assurance the Petitioners were regularised by the Director Science and Technology between March, 1987 and June, 1987 on their respective posts after the petitioned were properly interviewed by the interview board. Those orders of regularisation are disclosed at Annexure-8 series. It is specifically mentioned in Annexures-8 series that the service of the Petitioners are absolutely on purely temporary basis. Thereafter on 14th July, 1987 a termination order in so far as the Petitioner''s services are concerned was issued by the Principal of the College. Even though the Petitioner''s services were terminated, they were kept on a daily "wage basis after termination. The said order of termination was challenged by the Petitioners before this Court and this Court by a judgment dated 11th October 1991 rendered in C.W.J.C. No. 5706 of 1989 quashed the order of termination dated 14th July, 1987 in respect of the Petitioners, inter alia, holding that the said orders of termination of the services of the Petitioners were passed without complying with the principles of natural justice and as such those orders are bad. The Learned Judge while quashing the orders however, gave liberty to the Respondents to pass fresh orders in accordance with law after giving an opportunity of hearing to the Petitioners. Pursuant to such laws, the Respondents authorities issued a show-cause notice dated 23rd June, 1992 to the Petitioners asking them to show-cause why their services will not be terminated. In the said show-cause notice certain grounds were mentioned. The Petitioners replied to the said show-cause notice purporting to refute the objections taken therein.

Ultimately by the order dated 20th November, 1992 passed by the Director, Science and Technology Department, Government of Bihar, the stand of the Petitioners given in the reply to the show-cuase was accepted and the services of the Petitioners were regularised by an order dated 20th November, 1992. Some time after the order for regularization was passed, notes were prepared and exchanged in the concerned Secretariat and the Minister for further initiation of a show cause proceeding for the purpose of terminating the services of the Petitioners. In this regard detailed averments have been made in the writ petition from paragraph onwards from such averments it is clear that the matter was repeatedly placed before the Minister concerned for re-opening the decision by issuing a notice to the show-cause for the purpose of terminating the services of the Petitioner.

It is relevant to mention here that before initiating a proceeding to show-cause the opinion of the then Learned Advocate General of Bihar was obtained and the opinion of the then Advocate General was against the re-opening of the proceeding which already stands concluded. But (sic) noring the said opinion of the learned Advocate General attempts were made determinate the services of the Petitioners. Entire noting of the Secretary dated 7th December, 1993 has been annexed with this writ petition as Annexure-22. From a peruse of the said noting it appears that a decision for termination of the services of the Petitioners was taken and further notice to show-cause was issued on 24th December 1993, but prior thereto from the nothing dated 7th December, 1993 it is clear (sic) the authorities were bent upon to terminate the services of the Petitioners. Thereafter the notice to show-cause which was issued on 24th December, 1993 was a mere eyewash. The allegations in the said show-cause dated 24th December, 1993 the based on similar and absolutely identical facts on the basis of which the previous show-cause notice dated 3rd July, 1992 was issued. Therefore, this Court comes to the conclusion that without any free material the subsequent show-cause notice dated 24th December, 1993 was issued. The Petitioners filed their reply to the show-case on 5th January, 1994. But on that day itself the order of termination against the Petitioner was again passed. Against the said order of termination dated 5th January, 1994 the Petitioners filed C.W.J.C. No. 44 of 1994. A Division Bench of this Court held that the said order of termination was passed on 5th January, 1994 when on that date itself the Petitioners submitted their show-cause and as such the Court came to the conclusion that without taking into consideration the reply given by the Petitioners to show-cause notice the order of termination was passed. In the particular facts of the case, the learned Judges of the Division Bench while passing the final order dated 22nd February, 1994 were pleased to observe that "we are of the view that the impugned order should not have been passed on 5th January, 1994 on the last date of filing the show-cause." However, the Court while passing the order dated 22nd February, 1994 gave liberty to the Respondents to issue appropriate final order after considering the Petitioner''s reply to the show-cause. Such order was ultimately passed on 11th March, 1994 which is at Annexure-30 to this writ petition.

In the background of these facts various questions emerge and fall for consideration by this Court. The questions which arise from the facts of this case are as follows:

I. Whether in the facts and circumstances of this case after considering the reply of the Petitioners to the show-cause notice dated 3rd July, 1992 and after passing of the order for regularisation dated 20.11.1992 it is open to the Respondent authorities to revoke the said decision and issue a further show-cause notice on the same self materials ?

II. Whether the decision making process in passing the final order dated 11th March, 1994 contains a flaw which vitiated the order enabling the Court to interfere in exercise of its power of judicial review ?

III. Whether the alleged justification which has been reflected in the notings of the department and if the representation made to the Minister concerned for reopening the regularisation of service of the Petitioners, is a valid one in the eye of law ?

Learned Counsel appearing on behalf of the Petitioner has cited various decisions and also placed reliance on Wade''s Administrative Law in support of his contention and submits that the impugned order is not sustainable in the eye of law.

Learned Counsel appearing for the Respondent, authorities have, however, submitted that the Petitioners have taken inconsistent stand at different stages, i.e., at one stage the Petitioners have assented that they were appointed on daily wage basis and at the same time they also asserted that they were appointed on the basis of the advertisement and pursuant to a selection process. According to the learned Counsel appearing for the Respondents the stand of the Petitioners is inconsistent and cannot be entertained by this Court. The further submission of the learned Counsel for the Respondents is that as the Petitioners had not given any reply to the show-cause notice so there is no infirmity in the impugned order. Learned Counsel for the Respondents further submitted that the initial appointment of the Petitioners was irregular and not in accordance with the selection process and as such there is no question of regularisation of such appointments which was initially void and without any authority. In support of the aforesaid contention, the learned Counsel for the Respondent has placed reliance on two decision namely, the one reported in B.S. Minhas Vs. Indian Statistical Institute and Others, and Anr. decision is reported in 1995(2) All. P.L.R.558 : Rajendra Prasad Sinha and 7 Ors. Vs. The State of Bihar and Others

This Court is of the view that once a decision is taken by the appropriate authority on consideration of the reply given by the affected person in answer to a show-cause notice and when such decision vitally decides the right of the parties, such a decision is obviously quasi judicial one. Such decision actually decides the ''lis'' between the parties. Such a quasi judicial decision taken in accordance with an established procedure as aforesaid, cannot be altered or varied by the Respondent authorities by re-opening the thing over again when the Respondents have no statutory right of review. Such a decision cannot be altered or amended just on the basis of the so called administrative difficulty of the Respondents concerned.

In this case, reliance by the Petitioner''s Counsel has rightly been placed on a passage in Administrative Law by H.W.R. Wade (6th Edition). Relevant portion of the passage from Wade is set out below:

For this purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case. An authority which has a duty to maintain high ways or a power to take land by compulsory purchase may clearly act from time to time as occasion requires. But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality. Citizens whose legal rights are determined administratively are entitled to know where they stand.

The decisions which the Respondents took about the regularisation of the Petitioners service fall under the second category and attained a finality which cannot be re-opened in the absence of clear statutory authority which in this case does not exist. The Supreme Court in the case of S.G. Jaisinghani Vs. Union of India (UOI) and Others, laid down almost the same principles which are to be followed by the administrative authorities in passing discretionary orders. The relevant passage is set out below:

In a system governed by rule of law discretion when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that, decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is.

Predictability in the action of the executive is a very important aspect of Rule of Law. As the element of predictability is opposed to all forms of whims and caprice the executive authority must be made to act within the confines of known procedure and principles and cannot be allowed to spring a surprise upon the citizens by re-opening final decisions on the basis of alleged administrative difficulties or inconvenience. Somewhat similar observations have been made in the decision of the Privy Council the case of AIR 1937 27 (Privy Council) The following observation of Lord Reche are very significant:

In a case in which after Government Officials duly competent and duly authorised in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation cannot purport to enter upon a reconsideration of the matter and to arrive (sic) Anr. and totally different decision.

It is well known that the stakes of the Petitioners in their services are very high and when their services have been regularised by the authorities concerned on a consideration of materials on records such decision cannot be altered on the mere ''Ipse dixit'' of administrative difficulties allegedly felt by the executive authorities.

In this connection learned Counsel for the Petitioner also relied on the decision reported in AIR 1966 S.C. page 828 in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. The passage on which reliance has been placed is at paragraph 13 at page 836, wherein the learned Judges of the Supreme Court came to the conclusion that in matters relating to exercise of quasi judicial power the provisions of General Clauses Act are of no avail. In this case, however, Respondents did not argue that they have acted on their power under the General Clauses Act. However, such a contention, if raised, cannot be sustained in view of the Supreme Court decision in the case of Gadde Venkateswara Rao (Supra).

On the question whether the administrative difficulties can empower the authorities concerned to alter the decision taken in accordance with known principles, reliance was placed by the Counsel for the Petitioner on the decision in the case of B. Prabhakar Rao and Ors. v. State of Andhra Pradesh and Ors. reported in AIR 1986 210. The learned Judge of the Supreme Court after agreement with the observation made by Loard Denning M.R. in Bradbury v. London Borough of Enfield (1967) 3 All E.R. 434 enunciated the law as follows:

It would be a great injustice to deny justice to those who have suffered injustice most merely because it may cause inconvenience to the administration. We are governed by the Constitution and the Constitutional rights have to be upheld. Surely the Constitution must take precedence over convenience and a judge may not turn a bureaucrat.

The decision which has been cited by the learned Counsel for the Respondents, namely, in the case of B.S. Minhas Vs. Indian Statistical Institute and Others, is not attracted in the facts and circumstances of this case.

The question which come up for consideration in Minhas case (Supra) was whether or not the appointment made in violation of bye-law is legal. In the said case the particular appointment was made without proper advertisement as was required under bye-law. In those facts the learned Judges of the Supreme Court held that the selection procedure which was in violation of the requirement of the bye-law was invalid. Unfortunately, the questions which fall for consideration before this Court are totally different. In that view of the matter, this Court is unable to appreciate the relevance of the said decision of the Supreme Court. Similarly the other judgment cited by the learned Counsel for the Respondents in the case of Rejendra Prasad Sinha and seven Ors. reported in 1995 (2) All P.L.R. 558 : Rajendra Prasad Sinha and 7 Ors. Vs. The State of Bihar and Others also relates to the legality or otherwise of the selection procedure. This Court on similar reasons is enable to follow the ratio of the said decision in the facts of this case as here this Court is, as pointed out, concerned with the different question.

In the present case, legality of the selection procedure can be no longer in issue once the same was examined by the Respondent authorities and the order for regularisation was passed.

Apart from that, from the materials on record it is clear that the subsequent show-cause notice dated 24.12.1993 which was issued to the Petitioner was so issued as a matter of mere ritual. The Petitioner was asked to give reply to the said show-cause notice and before that the authorities have disclosed a closed mind. It is a serious flaw in the decisions making process in which the principle of natural justice have been thrown to the winds. In that view of the matter, the impugned decision is also vitiated.

For all the reasons aforesaid, the impugned order dated 11th March, 1994 cannot be sustained and is hereby set aside and is quashed. The Respondents are directed to act in accordance with the order passed by them regularising the services of the Petitioners by the order dated 20.11.1992 which is at Annexure-21 of the writ petition.

In this case large number of private parties have been made Respondents by the Petitioners and the learned Counsel appearing on their behalf made submissions. These persons have been made parties by the Petitioners for the purpose of establishing that the selection made in their favor was illegal. This Court refrains from entering into these controversies relating to the selection and the appointment of those private parties and does not decide these questions having regard to the discussions made above. In other words, in order to find out the illegality or otherwise in the order dated 11th March, 1994 this Court is not called upon to decide those questions. Therefore, it is made clear that by this decision no adverse inference has been drawn about the appointment of the private parties, namely, Respondent Nos. 8 to 64.

This writ petition is thus allowed to the extent indicated above. There will be no order as to costs.

Since the order of termination of the Petitioners dated 11th March, 1994 is set aside the Respondents are directed to put back the Petitioners in service immediately and within a period of seven days from the date of receipt/production of a copy of this order. In so far as back wages of the petitions are concerned, this Court feels that justice of the case will be sufficiently met if the Petitioners are given only 50 percent of the back wages. It is, however, made clear that the continuity of services of the Petitioners will be maintained. Payment of such back wages is to be made within a period of two months from the date of receipt/communication of a copy of this order.