Mithilesh Kumar Singh vs The State of Bihar and Others

Heard learned counsel for the parties. By the order impugned, the writ application filed by the appellant against the order of termination of his services has been dismissed.

It is submitted by learned counsel for the appellant that the single post of peon in Project Balika Uchcha Vidyalaya, Phulwarisharif, had fallen vacant and against that post the appellant was appointed in the year 1999 by the District Education Officer, Patna, who was competent authority to do so, and he continued to serve as peon in the school, and in the meantime, a show-cause notice was served upon the appellant as to why his services should not be terminated as his appointment was made without any advertisement. It is also submitted that the appellant thereafter filed his show-cause. which, ultimately, was not found satisfactory, and he was terminated from services. It is further submitted by learned counsel that when a single post falls vacant, it need not be advertised and since it is a case, where the writ petitioner was appointed by a competent authority against a sanctioned vacant post, his services could not have been terminated nor the learned Single Judge of this Court could have dismissed the writ application placing reliance on the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, .

Learned counsel for the State, on the contrary, submitted that admittedly, the appellant was appointed on the post of peon without any advertisement, but at the same time, he could not point out any law pertaining to appointment made against a single post nor he could point out any procedural wrong in such appointment.

The learned Single Judge of this Court, however, dismissed the writ application solely on the ground that the writ petitioner was appointed without any advertisement, and, thus, his case is squarely covered by the decision of the Constitutional Bench of the Supreme Court, as rendered in case of Uma Devi (supra). The case aforesaid decided by the Supreme Court, in our opinion, applies in the case of regularisation, where it is held that in case engagement of a person even on Class IV post is de hors the rules, regularisation is not permissible. It is not a case of regularisation, rather it is a case of appointment of the writ petitioner on the sanctioned vacant post of peon by a competent authority, where he continued in his services for more than 14 years.

Regard being had to the facts and circumstances of the case and for the reasons aforementioned, in our opinion, the order impugned is not sustainable in law.

This appeal is, accordingly, allowed, order impugned is set aside and the appellant is directed to be reinstated on the substantive post with all consequential benefits. No order as to cost.