U.P.Singh, J.:-

(1) The notification dated 5th november, 1983, issued by the chief engineer in the department of irrigation, patna, terminating the services of the petitioners has been challenged in both the writ applications. Since the same impugned order has been challenged in both the applications and the questions of fact and law raised are common, they have been heard analogous and are being disposed of by this judgment. The petitioners have further prayed for a suitable direction to the respondents to absorb them permanently in the services of the department of irrigation.

(2) The chief engineer of the irrigation department being the proper appointing authority, appointed the petitioners some times, in the year 1979 and 1980 as muster roll workers in classes iii and iv posts in the department of irrigation. As such they satisfactorily worked till 18th may, 1983. As and when vacancy arose in the regular sanctioned permanent posts in classes iii and iv, the chief engineer appointed them in temporary capacity on such various posts of peons, bill clerks, tracers, store - keepers, blue printers and sweepers. This was so done on 18th may, 1983, by different notifications issued by the department of irrigation and these appointments were made in consultation with and approval of the departmental establishment committee. It has not been disputed that the proper and competent authority to make these appointments on all regular sanctioned permanent posts in classes iii and iv was the chief engineer of the department (respondent no. 4). These petitioners being classes iii and iv employees were earning a maximum salary of rs. 460/ -. Suddenly, by a notification no. 3486 issued by the chief engineer (respondent no. 4) on 5th november, 1983, the services of these petitioners were terminated with immediate effect.

(3) In the counter - affidavit filed by an assistant of department of irrigation, it was alleged that the appointments were made in contravention of the government instructions. In other words, it has been stated that the appointments of classes 111 and iv employees in the regular establishment from outside had been strictly stopped vide circular letter no. 941 dated the 19th february, 1981, and 517 dated the 2nd april, 1983, specifically indicating that only those employees, who were working in the work charged establishment, were to be adjusted against the vacancies in the regular establishment. It was further alleged that, while making these appointments, the chief engineer neither followed these instructions nor did he follow the instruction of the government dated 28th january, 1976. It was alleged :

(a) that the chief engineer did not call for the names in the prescribed pro forma from the employment exchange ; (b) the merit list was not prepared on the basis of the marks obtained in the school and college examinations; (c) the vacancies were not publicly announced and no advertisements were made; and (d) the policy regarding reservation, etc. , was not followed. It was alleged that the petitioners, not being the work charged employees, were not eligible to be appointed against vacant post in the regular establishment by way of absorption.

The petitioners were never appointed on ad hoc basis but purely on muster roll and that too in violation of the instructions. It was stated that their appointments on muster roll were illegal and irregular and, alter an enquiry in relation to these appointments, their services were terminated. The recommendation of the establishment committee was also illegal and in violation of the government instructions contained in annexures - b and c to the counter - affidavit.

(4) Controverting these various allegations made in the counter - affidavit, the petitioners, in their reply, reiterated their stand that there was, in fact, no fresh appointment of petitioners on 18th may, 1v83. They had already been appointed on muster roll in 1979 - 80 and on 18th may, 1983, as and when vacancies arose in the regular sanctioned permanent post in classes 111 and iv, they were absorbed in the services of the irrigation department in consultation with and approval of the departmental establishment committee. It has been firmly stated that there was no violation of the government instructions either in their initial appointment on muster roll or iu their laier absorption iu the services of the department. It has been categorically asserted that the alleged government instructions contained in their circular nos. 941 and 517 dated 19 - 2 - 1981 and 2 - 4 - 1983, respectively, were, in tact, not violated because, in a accordance with "those circulars, all work charged staff appointed till the 21st august, 1975, were, first absorbed in classes 111 and iv posts in the irrigation department and only then fresh appointments were made.

(5) Relying on a latter on the chief engineer addressed to the engineer - in - chief - cum - special secretary ot the irrigation department dated 10th january, 1982, if was pointed put that the said letter itself indicated that all work charged staff, falling in the said category, had already been adjusted in the irrigation department and even then 625 posts remained vacant in the regular establishment and it was against these vacant pots that the services of the petitioners were absorbed by the irrigation department on 18th may, 1983. The chief engineer had enquired even from other circles and divisions whether any person appointed before the 21st august, 1975, were still available and after receiving no reply, in respect of the enquiry made by him, he proceeded to absorb the services of the petitioners on the 18th may, 1983. True copy of the letter dated 10th january, 1982, has been annexed marked annexure - 5.

(6) The alleged irregularity and illegality has been denied and it appears that vide letter no 792 dated the 22nd april, 1983, the employment excnange had been duly informed by the chief engineer about the available vacancies. Further, he also wrote to other chief engineers enquiring whether any work charged stall was available for appointment. In so tar as compliance of the policy of reservation is concerned, it is evident from the fact that petitioners 6, 15, 16, 19, 20, 22, 24, 26, 27, 28, 29, 31, 33, 34 and 35 of c. W. J. C. No. 5280 of 1983 have been appointed only against the reserved quota, la fact, there was no fresh appointment of the petitioners. They were only absorbed in service and the policy of reservation was complied with. Likewise there was no violation of the government instructions contained in memo nos. 941 and 517 dated 19 - 2 - 1981 and 2 - 4 - 1983 because in accordance with the same all old work charged employees had been absorbed in services of the irrigation department but even then a large number of posts (626) were still available in the regular establishment and the petitioners were then properly absorbed in those vacant posts in regular establishment. It appears that repeated requests were made to the government by the chief engineer seeking approval for making regular appointments on the vacant posts, it was indicated therein that the petitioners faced hardships due to their long continuation in the muster roll and even though, the posts were available in the regular establishment but there being no clear instruction issued by the government, the petitioners continued to work on muster roll when, subsequently, their services were absorbed in the regular establishment on 18th may, 198x the proceeding and the recommendation ot the establish - ment committee, which formed the basis of absorption ot the petitioner's services, was legal and proper and within the statutory powers ot the chief engineer as contained in annexure - 1 of both the writ applications.

(7) The learned counsel for the respondents contended that no show cause notice was required to be served in the case of irregular/illegal appointment since the petitioners have no right to hold the posts. Reliance was placed on a full bench decision of this court in the case of bijoy kumar bharti v. State, 1984 bbcj 335.

(8) There cannot be any dispute on the question that once it is established that appointments were irregular or illegal, the petitioners would have no right to hold the posts. But then the real question arises for consideration is as to whether belore deciding any such appointment as irregular/ illegal, the employee would be entitled to know as to how his appointment was treated as irregular or illegal. In my opinion, it would amount to negation of the principles of natural justice, if a person who has bean serving in the job for long years and to his mind he has been validly appointed he cannot be suddenly thrown to gallows without being afforded a reasonable opportunity to show as to how his appointment in the service is irregular or illegal, if the employee is not allowed to know the cause before he is thrown out of services, no one in the service would be safe. Nothing would be more harsh, unjust and unfair to an employee, who, having served for years together, may be temporary, is all on a sudden faced with an order of termination stating that his appointment is illegal or irregular. True it is, that he would not have a right to hold the post if his appointment is irregular or illegal, but, before arriving at such a decision, there must be an act of fair play and the employee concerned must be allowed to know and be confronted with the situation so that he can go out of the job being satisfied that he had been illegally or irregular appointed. It cannot be left to the appointing authority to take a sudden unilateral decision without affording a reasonable opportunity to the employee concerned, who may, perhaps, legitimately persuade the appointing authority and establish that his action is mala fide, arbitrary and/or illegal. It would be dangerous to grant legal sanction to such unilateral decision of the appointing authority, who shall be free to be a judge of his own act, in determining that at one point of time the person concerned was validly appointed and yet at another point of time the appointing authority shall turn back and unilaterally decide that now the said appointment is illegal or irregular. His power may be unquestionable but abuse of power must be checked up and before arriving at such a conclusion, it would be necessary in the interest of justice equity and fair play that the person concerned is afforded reasonable opportunity to know how his appointment was illegal or irregular and, may be, that even after such reasonable opportunity afforded to the person concerned to establish if otherwise, the appointing authority may arrive at the same conclusion. But, in any case, natural justice cannot be denied to him.

(9) The facts of these cases are glaring, wherein the alleged irregularity or allegality was for the first time made known to them only in the counter - affidavit when they came to this court in these writ applications. These illegality and/or irregularity alleged in the counter - affidavit have been firmly rebutted by annexing documents and thus establishing that the regulations issued by the government regarding those appointments were, in fact followed and there was no irregularity or illegality. If the same opportunity would have been afforded to these petitioners before taking such unilateral decision, they could have equally satisfied the appointing authority that their appointments were neither illegal nor irregular and that the order of termination was itself without any foundation and based on extraneous grounds.

(10) In this view, the notification dated 5th november, 1983 terminating the services of these petitioners is quashed and the respondents are directed to absorb them in the services. Both the applications are, accordingly allowed but without costs. Application allowed.