Md. Shamshad vs The State of Bihar and Others

Mridula Mishra, J.—Heard the counsel for the petitioners and the State. Petitioners have challenged the impugned order, dated 27.6.2000. contained in different memo numbers issued by the Director, Secondary Education, Government of Bihar, Patna, terminating them from their services although they have remained in regular service for more than ten years. From the impugned order, it transpires that the reason for petitioners'' termination from service is that their appointments were not made observing the Procedure for appointment in Government. The posts were not advertised, roster clearances were not taken and the different Government Circulars were not followed. It is not in dispute that after being appointed petitioners'' were confirmed on the posts, held by them, gradation list was prepared, petitioners have received increments and all benefits available to a regular Government employee. In sum and substance, their appointment was approved by the Government in all respects. Suddenly, an enquiry started, in this regard, payment of salary of the petitioners were stopped most of the petitioners moved before this Court by filing writ applications, a direction was issued to the respondents to make payment of salary and to conduct an enquiry. Petitioners started getting their salary. The respondents directed the petitioners to produce all relevant documents related to their appointment and continuation in service which was duly produced by the petitioners on the dates appointed for holding such enquiry, finally the impugned order was passed.

Counter affidavits have been filed by the respondents where it has been stated that since the appointment of the petitioners itself was illegal, they do not have any legal right and prayer on behalf of the petitioners, in this regard, cannot be allowed by this Court. It has also been stated that during enquiry it was noticed that petitioners were not appointed observing legal procedure. Necessary procedure provided for appointment of Class-Ill and Class-IV employees as contained in different Circulars of the Personnel and Administrative Reforms Department were not followed. No merit list was prepared on the district level. The policy of reservation which should have been strictly followed, were ignored. Bihar Nationalized Secondary School (Service Conditions) Rules. 1982, provides the guidelines for appointment of Class-Ill employees that was also ignored. There was no roster clearance The selection was not made strictly following the Rules of reservation, considering all these illegality, termination order was passed.

Rejoinder has been filed on behalf of the petitioners. Alongwith rejoinder recent decision of this Court passed in Ram Krishna Dubey Vs. State of Bihar and Others has been brought on record. Ram Krishna Dubey was also dismissed in similar circumstance and the termination order was challenged by filing writ application. Single Judge dismissed the writ application. The order passed by Single. Bench was challenged by filing L.P.A. No. 779 of 2007 Reported in Ram Krishna Dubey Vs. State of Bihar and Others . The L.P.A. Bench, considering all aspects, decided in favour of the petitioners and the order passed by the Single Bench was set aside. One of the considerations of the L.P.A, Bench was that once a Government employee is regularized in his service in that case he cannot be terminated from his service simply on the basis of show cause. For termination of service the procedure as provided under Article 311(2) is must. Since it is not done, the termination is bad.

The State Government against the order passed by the L.P.A. Bench preferred SLP No. 10242 of 2008. The SLP has been dismissed by the Supreme Court affirming the order passed by the L.P.A. Bench.

I find that since the similar issue has already been decided by the Apex Court the petitioners in all these analogous cases are also entitled for similar benefit. The impugned order, dated 27.6.2000, challenged by the petitioners, contained in different memo numbers, issued by the Director of Secondary Education, Government of Bihar, Patna, terminating services of the petitioners is quashed.

All these writ applications are allowed. The petitioners should be reinstated and all consequential orders be passed by the respondents allowing all benefits to the petitioners within four weeks from the date of receipt/production of a copy of this order.