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Indra Mandal Prasad Singh v. State Of Bihar
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner was appointed as a Clerk in the office of the Sub-Divisional Education Officer, Bagaha (West Champaran), by order of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur dated 30.3.1994 (Annexure-3). The appointment letter recorded that the appointment was made on the basis of the decision of the Divisional Establishment Committee. The petitioner was terminated from service by order dated 8.11.1997.
The petitioner filed Writ C.W.J.C. No. 7608 of 1999. That writ was disposed of on 13.9.1999 (Annexure-9), quashing the termination on the ground that it violated Principles of Natural Justice, while granting liberty to the respondents to proceed afresh after giving opportunity of hearing. Pursuant to that, the Director, Secondary Education restored the petitioner’s services by order dated 7.1.2000 (Annexure-10) and directed payment of salary. The respondents later issued another termination order dated 15.7.2000 (Annexure-12).
The petitioner challenged the 15.7.2000 termination by Writ C.W.J.C. No. 7376 of 2000. That writ (along with other similarly situated cases) was heard and decided on 9.8.2001 (Annexure-13). The Court there found that, although roster clearance and reservation compliance were not observed, the petitioners should not be penalized after several years of service for administrative lapses, and their terminations could not be justified.
Following that judgment, the Regional Deputy Director of Education issued an office order dated 5.12.2003 (Annexure-14) restoring the petitioner yet again. The respondents appealed to a Division Bench (L.P.A. No. 1399 of 2001 and others). By order dated 11.1.2007 (Annexure-15) the Division Bench directed constitution of a High Level Committee (three Secretaries) to consider the cases in the light of the Constitution Bench judgment in State of Karnataka v. Uma Devi (2006) 4 SCC 1. The High Level Committee rejected the petitioner’s case by its order dated 27.5.2008 (Annexure-1) on grounds discussed below.
A counter affidavit was filed by the District Superintendent of Education; paragraph 10 of that affidavit indicated that the Regional Deputy Director of Education would be the appropriate authority to reply, but no counter affidavit from that officer appears on the record.
Legal Issues Presented
- Whether, in view of the appointment letter and the earlier findings of the High Court, the petitioner—whose appointment was alleged to have procedural irregularities (lack of roster clearance, absence of supporting evidence of advertisement, and appointment by an apparently incorrect authority)—is nevertheless entitled to regularization/absorption in service.
- Whether the three-member High Level Committee (constituted in light of State of Karnataka v. Uma Devi) was justified in rejecting the petitioner’s claim on the specific grounds set out in Annexure-1.
- What relief, if any, should be awarded to the petitioner if the Court finds that the appointment was not illegal or that irregularities should not disqualify him from regularization.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted that his appointment followed normal procedures: names were called from the Employment Exchange, a panel was prepared, interviews were held, and selection was made by the Divisional Establishment Committee, as reflected in Annexure-3.
- The petitioner relied on the earlier findings of the Court which had held that administrative lapses (such as lack of roster clearance or non-compliance with reservation) were not sufficient ground to terminate employees after several years of service.
Respondents' Arguments
- The High Level Committee rejected the petitioner's claim on three grounds (Annexure-1): (i) roster clearance was not obtained before appointment; (ii) absence of documentary evidence demonstrating advertisement or sanctioned vacancy; and (iii) the petitioner was appointed by the Regional Deputy Director of Education whereas the notification then in force required a Committee headed by the Collector for divisional cadre appointments.
- In the counter affidavit, the District Superintendent of Education stated (paragraph 10) that the Regional Deputy Director of Education would be the appropriate authority to give a comprehensive reply, effectively shifting the burden of detailed factual response to that officer; no such affidavit from the Regional Deputy Director was filed on record.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Karnataka v. Uma Devi, (2006) 4 SCC 1 | The Constitution Bench tests (specifically those set out in paragraph 53) for determining when appointments made in violation of prescribed procedures can or cannot be regularized/absorbed. | The Court expressly applied the tests mentioned in paragraph 53 of Uma Devi and concluded that the petitioner fulfils those tests, and therefore is fit to be regularized in service. |
Court's Reasoning and Analysis
The Court examined the factual matrix and documentary record and proceeded by applying the following analytical steps, based strictly on the content of the opinion:
- The Court noted the contents of the appointment letter (Annexure-3), which expressly records that appointment was made "on the basis of the decision of the Divisional Establishment Committee." This created a prima facie presumption that the Divisional Establishment Committee had considered a panel, interviews and made the selection.
- The petitioner’s asserted factual position—that names were called from the Employment Exchange, a panel prepared, interviews held and the Divisional Establishment Committee selected him—was consistent with the appointment letter and with earlier judicial findings. The Court treated this as a positive stand by the petitioner.
- The burden therefore lay on the respondents to rebut the presumption arising from the clear wording of the appointment letter by producing relevant office records showing that either (a) there was no decision of the Divisional Establishment Committee as stated, or (b) the Committee had not taken any panel or procedure into account before recommending the petitioner. The Court found that the respondents did not discharge this burden: the District Superintendent filed a counter affidavit but effectively deferred to the Regional Deputy Director, who did not file a reply.
- Given the absence of documentary rebuttal from the respondents, the Court held that the committee’s three stated grounds (lack of roster clearance, absence of evidence of advertisement/sanctioned vacancy, and appointment by an allegedly improper authority) were not adequate to conclude that the petitioner’s appointment was illegal.
- The Court further reasoned that, since the respondents’ own records (as represented in the appointment order) indicated a regular selection process, the petitioner should not be penalised for administrative irregularities committed by the authorities (such as failure to obtain roster clearance or fully comply with reservation rules). The Court relied on its earlier view in prior writ proceedings to this effect.
- Applying the tests laid down by the Constitution Bench in State of Karnataka v. Uma Devi (referred to specifically as paragraph 53 of that judgment), the Court concluded that the petitioner satisfies those tests and therefore is fit to be regularized. The opinion states this application explicitly and ties the result to those tests.
- The Court, however, limited the relief: while granting continuity of service for purposes such as pay fixation, it refused to award monetary benefits for periods when the petitioner did not actually work and refused to grant seniority over persons not before the Court.
Holding and Implications
Holding: The writ application is allowed and the Court holds that the petitioner is fit to be regularized in service.
Implications and direct consequences:
- The petitioner is to be regularized (absorbed) in service in view of the Court's finding that he satisfies the tests laid down by the Constitution Bench in State of Karnataka v. Uma Devi (paragraph 53).
- Continuity of service is to be recognized for purposes such as pay fixation.
- The petitioner is not entitled to monetary benefits for any period during which he did not actually work.
- The petitioner shall not claim seniority over other employees who are not parties before the Court.
- The Court did not set out to create or record a broader novel precedent beyond applying the tests of Uma Devi; the decision implements those established tests to the facts of the petitioner’s case.
Note: This summary is confined to the material and findings contained in the provided opinion. No information has been added beyond what the opinion itself states.
1. Annexure-3 is the order of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur dated 30.3.1994 By this order, petitioner was appointed on the post of Clerk in the office of Sub-Divisional Education Officer, Bagaha in West Champaran. The order shows that petitioner was being appointed on the basis of the decision of the Divisional Establishment Committee. However, it appears that after little more than three years, by order dated 8.11.1997, petitioner was terminated from service.
2. Petitioner moved this Court against the said order through C.W.J.C No. 7608 of 1999. The said writ application was taken up on 13.9.1999 and was disposed of, vide Annexure-9, quashing the order of termination on the ground that the same was in violation of Principles of Natural Justice. However, liberty was granted to the respondents to proceed in accordance with law after providing an opportunity of hearing to the parties. Accordingly, by order of the Director, Secondary Education dated 7.1.2000, vide Annexure-10, services of the petitioner were restored as before and orders for payment of salary to him was issued. Later on, respondents again terminated the Services of petitioner after affording opportunity of hearing to him by order dated 15.7.2000, vide Annexure-12. The said order was again challenged by the petitioner before this Court through C.W.J.C No. 7376 of 2000. The said writ application, alongwith writ applications of other similarly situated persons; was heard and judgment was passed on 9.8.2001, as contained in Annexure-13. Cases of the parties were considered and thereafter findings of the Court in respect of the petitioner and others with regard to nature of their appointment were as follows:
“From the facts enumerated in the writ application it is borne out that the petitioners had requisite qualifications for the posts as such and posts were advertised and in some of the cases names were called for from the Employment Exchange and on the basis thereof petitioners applied and they were interviewed and they were finally selected by the Divisional Establishment Committee and accordingly, they were appointed to the post of clerks. Prima facie, it appears that petitioners were appointed by the Divisional Establishment Committee after following the nor mal procedures and their selection was made after due advertisement. From the facts enumerated in the writ applications and also in the counter affidavits, it appears that petitioners are not alleged to have played any fraud in the matter of appointment nor it is alleged that appointments were made on extraneous consideration. However, it appears that the roster clearance etc. are not said to have been obtained and compliance of reservation rules was also not observed. However, for these, the petitioners should not be made to suffer after several years of appointment for the fault of the authorities in not observing these formalities and in any view of the matter, it cannot be sufficient justification to terminate their services.”
3. Pursuant to the said judgment of this Court, by office order of the Regional Deputy Director of Education dated 5.12.2003, as contained in Annexure-14,. the present petitioner and others were restored in their services. However, the respondents, in the meanwhile, had also moved in appeal before the Division Bench of this Court against the said judgment of the learned Single Judge, which was numbered as L.P.A No. 1399 of 2001. The said L.P.A alongwith large number of other similar cases were heard by a Division Bench of this Court and orders were passed on 11.1.2007, vide Annexure-15. The Division Bench directed the respondents to constitute a High Level Committee of three Secretaries to consider the cases of the petitioner and others in the light of the judgment of the Constitution Bench of the Apex Court in the case of State of Karnataka v. Uma Devi, (2006) 4 SCC 1 [: 2006 (2) PLJR (SC) 363]. The case of the petitioner has been since rejected by the Committee, vide Annexure-1, which is under challenge in this writ application.
4. Counter affidavit has been filed in the case by the respondent District Superintendent of Education. In the counter affidavit, apart from noticing the facts of the case and other developments, stand of the respondent in paragraph 10 of the counter affidavit is as follows:—
“10. That it is also relevant to mention here that although the petitioner was clerk in answering respondent office but the respondent no. 5 i.e the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur is appropriate authority to give comprehensive reply if required at the time of hearing.”
5. Thus, clearly the respondents do not have any thing to say against the claim of the petitioner as the District Superintendent of Education has only thrown the burden of reply on the Regional Deputy Director of Education who has not filed any counter affidavit in the case.
6. It is not on record that after the petitioner was reinstated by Annexure-14 dated 5.12.2003, he was again terminated. However, finally in terms of the order of the Division Bench passed in the said L.P.A and other cases, case of the petitioner has been considered by the three member committee and has been found not fit for absorption, vide Annexure-1 dated 27.5.2008 as his appointment has been found illegal. The grounds mentioned in Annexure-1 for not finding the case of the petitioner fit for absorption are;
(i) before appointment, roster clearance was not obtained by the concerned officers in respect of vacancies available;
(ii) petitioner had claimed that the post was advertised by the office of the Regional Deputy Director of Education, but in support of the advertisement he has not produced any evidence which shows that the appointment has been made without sanction and without any vacancy; and
(iii) petitioner was appointed on 30.3.1994 and at that time notification of the Personnel and Administrative Reforms Department No. 5939 dated 18.6.1993 was in force, which had laid down detailed procedure for preparation of merit list for appointment on Class-III posts in the regional offices under the Government. For appointment in the regional offices in the divisional cadre, as per notification no. 3435 dated 13.8.1974, a Committee headed by the Regional Deputy Director of Education was to take steps. Appointment of the petitioner was made in the teeth of the said notification by the Regional Deputy Director of Education, who was not the competent authority, without obtaining merit list from the Committee headed by the Collector of the District.
7. The three grounds relied upon by the Committee of the Secretaries for rejecting the case of the petitioner do not appear to be good grounds for rejecting his claim, for the appointment letter of the petitioner, as contained in Annexure-3, which is not doubted by the respondents in the counter affidavit, shows that the appointment of the petitioner was on the basis of the decision of the Divisional Establishment Committee. Therefore, his appointment was not by the Regional Deputy Director of Education from his own level and the order was issued on the basis of the decision of the Divisional Establishment Committee which was admittedly empowered to make appointments on Class-III posts in the regional offices. Secondly, it was the case of the petitioner from before, as noticed by this Court in the earlier orders, that the names were called for from the Employment Exchange, panel was prepared, interview was held and then petitioner was appointed.
8. This positive stand of the petitioner, if it was establishment from the records, was enough to hold that the appointment of the petitioner was not illegal. Since entire procedure, as claimed by the petitioner, was gone through by the respondents themselves in their offices, petitioner was not expected to produce proof of the same in support of his claim that the posts were advertised; names were called for from the Employment Exchange, interview was held and then selection was made. Hence, in absence of any proof being produced by the petitioner in support of his this claim, the Committee was not correct in coming to a finding that the appointment of the petitioner was without any advertisement or without any procedure adopted. In view of the findings of this Court earlier and the claim of the petitioner from before, onus lay on the respondents to establish, on the basis of records of their offices, that either there was no decision of the Divisional Establishment Committee as referred to in the order of appointment of the petitioner issued by the Regional Deputy Director or the Establishment Committee had not taken into consideration any panel of names or had not adopted any procedure before recommending the petitioner for his appointment. Once that presumption, arising from the wordings of the appointment letter, is not rebutted by the respondents, benefit has to go to the petitioner. In the circumstances, if it is presumed that the petitioner was appointed pursuant to an advertisement, after calling names from the Employment Exchange, interview and selection, non-clearance of roster and failure to comply with the reservation rules will only be an irregularity committed by the officers of the State Government in their offices for which, as rightly held by this Court in the earlier writ application of the petitioner, petitioner cannot be penalized. In the circumstances, this Court finds that the petitioner fulfils the tests as laid down by the Constitution Bench of the Apex Court in paragraph 53 of the said judgment as noticed in the impugned order itself. That being the position, this Court holds that the petitioner is fit to be regularized in service. However, it is made clear that though the petitioner may get continuity of service for the purpose of pay fixation etc., he shall not be entitled to monetary benefits of the period during which he has actually not worked and shall not be entitled for seniority over others who are not before this Court.
9. The writ application is allowed with the aforesaid observations and directions.
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