Ram Narayan Harijan and Another vs The State of Bihar and Others

Shashank Kr. Singh, J.—All these writ applications have been preferred challenging the order of remove from police service as constables as it has been found that their appointments have been made without following any procedure or selection process as envisaged under the Police Manual, on the reco(sic) mendation of the then Director General (sic) Police namely Shri S.K. Saxena.

All the writ Petitioners of these w(sic) petitions are similarly situated and are ag(sic) grieved by the order of removal passed against them holding their appointment to be illegal. As such, with the consent of the parties as same/similar relief has been prayed for, all these writ applications we(sic) made analogous and have been heard to gether and are being disposed of by (sic) common order.

Learned Counsel for the Petitioner in their respective cases have drawn the attention of the Court to the respective annexures in their writ applications to can(sic)es their contention that as those Petitioner had shown exemplary bravery, as such, "Director General of Police had recommended their cases and directed the Superintendent of Police of the respective districts who were the competent authority for their appointment and as their appointment have been made by the competent authority i.e. respective Superintendents of Police, as such, the same was not required to be interfered with. A fact which has not been controverted is that they had not applied pursuant to any advertisement nor the appointment committee which was required to consider their case under the Police Manual had considered their case but as finally the appointments had been made by the respective Superintendents of Police, as such, those appointments, ac-cording to learned Counsel for the Petitioner was not required to be interfered with.

The second argument which has been made is that some of the Petitioners have put in service for a number of years and even some awards have been given to (sic)me of them and now after passage of (sic)me the genuineness of their entry into service was not required to be looked into.

From the annexures impugned it is (sic)nifest that when it transpired that a large (sic)umber of appointments had been made Mr. Saxena, the then D.G.R, without any advertisement and enquiry was directed to made and subsequently on enquiry when (sic)anspired that a large number of such (sic)sons have been appointed without fol(sic)ng any procedure, on the direction of then D.G.P a decision was taken to individual notice to such persons and (sic)y had not been appointed through the (sic)edure as laid down in the Police Manual (sic) their services were directed to be (sic)inated. A further decision was taken (sic) the appointments to the post of constable made earlier to Mr. Saxena should also be gone into and after due exercise if it was found that they too have not been appointed after following the required procedure their services were also directed to be terminated following the same procedure.

Similar matter came for consideration before a Bench of this Court in C.W.J.C. No. 14685 of 2001 (Nehru Sharma v. The State of Bihar and Ors.) and another analogous case. A Bench of this Court by its order dated 12.11.2001 after considering the facts of the aforesaid case came to the conclusion that as the writ Petitioners were back-door appointments their appointments were rightly not approved by the State Government and later on by the Police Headquarters. In the circumstances, the impugned order cancelling such appointments was not interfered with as they cannot be said to be contrary to law.

In the aforesaid order reliance was placed on an order of this Court passed in C.W.J.C. No. 10954 of 1997 (Pawan Kumar Yadav) where also the order of cancellation was in similar circumstances, was not interfered by this Court. The writ Court also relied on a judgment of this Court in the case of Sudhir Kumar Vs. The State of Bihar and Others, , wherein it has been held that D.G.R had no discretionary power to make appointment on the post of constable. The aforesaid judgment of the single Judge was challenged by filing a L.P.A. and the same was numbered as L.P.A. Nos. 1496 of 2001 and 1514 of 2001. The L.P.A. Bench by its order dated 2 January, 2002 upheld the aforesaid order as it was found that when law provides procedure for appointment to a public post then appointment is to be made to the said post by following the said procedure. There is nothing like an absolute power vesting in any authority to appoint any person on the ground of his likes as has been done in these cases. The L.P.A. Bench further referred to its earlier direction to the State Government to look into such other backdoor illegal appointments made in the Police Department violating the rules governing the appointment of constables. The action of authorities in cancelling the appointment of the aforesaid writ Petitioner was held to be legal and valid.

Learned State counsel appearing in the respective cases relying on the aforesaid two orders of this Court have contended that in view of aforesaid directions, other similar matters of appointment were also looked into and all the illegal appointments in the Police Department which have been done without following a procedure were being located and orders in accordance with law were being passed and as all such orders of removal have been affirmed by the writ Court and the L.P.A. Bench. Therefore, as the writ Petitioners of these writ applications are also similarly situated their removal from service were not required to be interfered with.

Further reliance has been made on the judgment of this Court in the case of Sudhir Kumar Vs. The State of Bihar and Others, wherein a Bench of this Court in a similar matter had while interpreting the relevant rules i.e. Rule 661 (b) read with Police Order No. 202/1988 and Section 12 of the Police Act, 1861 held that the appointment to the post of constables is to be made by the District Superintendent of Police for which a list is prepared by the Selection Board duly constituted for the purpose. Director General of Police has no discretionary power to make appointment in this regard, even on compassionate ground, appointment has to be made by the District Level Committee under the chairmanship of District Magistrate. Section 12 of the Police Act empowers the D.G.R to make rules or frame orders with, regard to matters enumerated therein including mode of selection of constable but this section does not empower him to make appointment or issue direction for appointment of individual constable by issuing orders. Such orders dehors the rules.

The Court further went to hold in the aforesaid judgment that public employ-ment being a national wealth was to be shared by all the citizens subject to the prescribed qualification for a particular post. This goal cannot be achieved unless the procedure for appointment to the public office is just, fair and reasonable. No au-thority, however, high it may be, can be given unbridled power to appoint any per-son according to his likes without laying down any mode or criteria for the post Vesting of such power will amount to conferring arbitrary power of patronage and nepotism.

Relying on the aforesaid judgment it has been argued that admittedly all the appointments in the present case have been made on the recommendation of hig(sic) officials including D.G.P, Bihar. No procedure has been followed, as such, right the appointments after verification have been cancelled. On instruction it has further been argued that in issuing such orders the department was not doing so (sic) pick and choose basis rather an instruction has been issued by the office of the D.G.P. Bihar to all the Superintendents of Police enter into exercise of locating such (sic) pointments in their districts and subsequently pass appropriate orders in accordance with law. It has further been contended that if any Superintendent of Pol(sic) allowed such appointees to work in the district, they were to be held persons responsible for the same.

In view of aforesaid submission contention of learned Counsel for the p(sic) (sic)ners that the aforesaid order has been (sic)ssed only against the writ Petitioners (sic)d not all such similarly situated persons (sic) not hold good.

Reliance has been made by the Petitioners on the order of the Jharkhand High Court in a similarly situated matter in (sic)P.S. No. 2087 of 2002, wherein a Bench (sic) the Jharkhand High Court held that without going into the merit of the case of (sic)ther parties, I am of the view that when admittedly the Petitioner was appointed on (sic)e post of constable vide District Order No. (sic)076/89 there was no justification to issue show cause notice after 14 years of serv-(sic) to terminate the services on the ground (sic)at the rules provided in Police Manual were not followed. The Petitioners cannot (sic)erive any strength from the said order of (sic) Jharkhand High Court as from the bare (sic)erusal of the aforesaid order one thing is clear that the Court has passed the order without going into the merit of the case of (sic)ther parties. Making the order an order only in the facts of the aforesaid case, the (sic)arlier orders either by the writ Court or by (sic) L.P.A. Bench had not been considered and gone into. As such, this Court treating the aforesaid order in the facts of that case (sic) not in a position to rely on the same.

In view of the discussions as made above and in view of the fact that earlier similarly situated persons had moved this Court and by different orders, their termination has been held to be valid in accordinace with law. Those orders were affirmed by the L.P.A. Bench. As such, the present orders in these writ applications also being (sic)ar to those orders, this Court is also (sic) inclined to interfere in the same. As (sic) holding the impugned orders termi(sic) the services of the writ Petitioners (sic) contrary to law, they are not required to interfered with.

In the result, all the writ applications are dismissed being devoid of merit.