Mritunjay Kumar vs The State of Bihar and others

S.B. Sinha & G.C. Bharuka, JJ.—In this writ application the petitioner has prayed for quashing of an order bearing No. 1543 dated 30th April, 1991 and Memo No. 2898-99 dated 9th May, 1991 whereby appointment of the petitioner as a Clerk in Thakur Bindeshwar Sharma High School, Brahmpur, District Darbhanga (hereinafter referred to as the said School) has been cancelled. The Headmaster of the said School sent a requisition to the District Education Officer, Darbhanga, for immediate posting of a Clerk in the said School.

Allegedly a local advertisement was made for appointment in the post of Clerk pending regular appointment and for the purposes a Selection Committee comprising of the District Inspectress of the School and Headmaster of the High School was constituted.

The petitioner was allegedly selected and pursuant to the offer of appointment he joined his post on 3.1.1991.

The petitioner has contended that in terms of Rule 8 of the Bihar Nastionalised Secondary School (Service Condition) Rules, 1983 the District Education Officer is the appointing and controlling authority in relation to the Clerks of the Nationalised Schools.

The Deputy Director Secondary Education allegedly by his letter No. 1543 dated 30th April, 1991 as contained in Memo No. 2898-99 dated 9th May, 1991 addressed to the District Education Officer, Darbhanga, cancelled the appointment of the petitioner.

It has been submitted that one Shri Amar Nath Choudhary, Peon had been promoted to the post of Clerk by the Additional Director of Education, Darbhanga and the petitioner''s services were terminated only to accommodate him.

In this case a counter affidavit has been filed.

In the said counter affidavit, it has been stated that the petitioner was appointed in an illegal manner and thus the same was cancelled by an order bearing No. 284-88 dated 7.2.1991. The said decision of the Additional Director of Education, Darbhanga were approved by the Deputy Director, Madhyamik Shiksha Karyalaya and the same was communicated to the petitioner vide letter No. 1543 dated 13.4.1992. It has been submitted that the appointment on the post of Clerk was illegal in view of the recruitment policy of the State as contained in letter No. 16440 dated 3.12.1980 and letter No, 1918 dated 28.1.1976 (Annexure-A).

It was further submitted that in appointing the petitioner the provisions of Article 16 were also violated.

The Learned Counsel appearing on behalf of the petitioner has submitted that in this case there has been violation of principles of natural justice. It has further been submitted that in view of the fact that the appointment was made in terms of Rule 8 of the 1983 Rules, the services of the petitioner could not have been terminated.

It was further submitted that the circular letter as contained in Annexure-A to the counter affidavit has no application in the facts and circumstances of the case.

So far as the appointment in the post of a Clerk in a Nationalised High School is concerned, there cannot be any doubt that the said appointment has to be made in terms of Rule 8 of the said Rules.

Rule 8 of the aforementioned 1983 Rules reads as follows :�

It is, therefore, clear that even in terms of Rule 8 aforementioned the appointment was to be done by a Committee as specified therein.

In the case of the petitioner though the Selection Committee comprised of the District Education Officer, District Inspectors of School and the Headmaster of School in question, but the petitioner has himself admitted that his appointment was pending regular appointment after due process of advertisement in the paper etc. In view of the assertions made by the petitioner himself, there cannot be any doubt that the appointment of the petitioner was ad hoc in nature. The said appointment was for a particular purpose and thus the petitioner did not derive any legal right to continue in the said post. It is also admitted that in terms of the Policy decision of the State even no advertisement was issued in the newspapers and thus there has been a violation of Article 16 of the Constitution of India.

In this situation, the petitioner was not entitled to any opportunity of being heard, nor any purpose would be served by giving him such an opportunity as the facts which been have brought on records are admitted or incontrovertible. It is well known that this Court does not issue any futile writ.

Taking into consideration the facts and circumstances of the case, in our opinion, the petitions does not have any existing legal right to continue in the post of Clerk of the said School. So far as the allegation of the petitioner to the effect that Amar Nath Choudhary has illegally been promoted to the post of Clerk no relief can be granted to the petitioner as neither the said Amar Nath Choudhary has been impleaded as a party in this writ application nor any prayer has been made for cancellation of his appointment. For the reasons aforementioned, there is no merit in this application which is accordingly dismissed, but without any order as to costs.