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Bipin Bihari Srivastava, Virendra Kumar v/s State of Bihar

    CWJC 6401,6803,7059 Of 1999

    Decided On, 25 August 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE NARAYAN ROY

    For the Appearing Parties: V.K. Kanth, Ganesh Prasad Jaiswal, Mihir Kumar Jha, Advocates.



Judgment Text

NARAYAN ROY, J.

(1.) Heard counsel for the parties.

(2.) By the impugned orders the petitioners have been terminated from the posts of Personal Assistants and Reporters respectively from the office of Bihar Legislative Assembly.

(3.) According to the cases of the petitioners, the posts of personal Assistants since had fallen vacant in the office of the Bihar Legislative Assembly the same were advertised on the notice board pursuant to which several persons including the writ petitioners of CWJC No. 6803 of 1999 applied for. After the scrutiny of the application forms, a competitive test was held. The petitioners having been found successful and eligib

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le, were appointed in the year 1991 and thereafter they continued on the post aforesaid.

(4.) Some posts of Reporters were also advertised on the notice board and in the portico of the Bihar Legislative Assembly. The petitioners of CWJC Nos. 6401 of 1999 and 7059 of 1999 and others. applied for the same. A competitive test was held on 24.1.1994 and 25.1.1994. Ultimately, the petitioners Virendra Kumar and Anurag Kumar and one more candidate were selected and they were appointed on the post of Reporters.

(5.) The petitioners thereafter continued functioning in the office of Bihar Legislative Assembly. Amidst hearing of a writ application i.e. CWJC No. 8931 of 1997 and its analogous cases where termination of the 181 persons working in the Bihar Legislative Assembly was under challenge. Mr. Mihir Kumar Jha, learned counsel appearing for the Assembly, wrote a letter to the Secretary, Bihar Legislative Assembly informing about the criticism with regard to continuance of appointment of 27 persons without proper advertisement of the post. The matter was placed before the Speaker of the Assembly for appropriate decision on 2.6.1999 and ultimately a decision was taken to terminate all such persons including the petitioners which were communicated to the petitioners by the impugned orders.

(6.) According to the case of the respondents, the termination of the petitioners is said to be wholly justified as they were appointed without newspaper advertisement.

(7.) The main thrust of argument of learned counsel for the petitioners is that the petitioners were appointed pursuant to the advertisement/notice displayed on the notice board in the premises of the Bihar Legislative Assembly which is one of the modes of advertisement of posts and merely because the posts were not advertised in the newspaper, hardly it can be a ground for termination of the services of the petitioners. In this regard, learned counsel referred paragraph 21 of the counter affidavit filed in CWJC No. 6803 of 1999, Bipin Bihari Shrivastava and Ors. v. State of Bihar and Ors., wherein it is admitted by the respondents that no newspaper advertisement was necessary for filling up less than five vacancies as per the well established practices followed vide government, circulars. Learned counsel submits that according to the own case of the respondents, newspaper advertisement, in the given facts and circumstances of the case, was not necessary. It is also submitted by learned counsel that consistently it has been held by this Court and also by the Apex Court that in all cases advertisement in the newspaper is not essential but some sort of notice must be published. In this regard, reference has been made to the case of Sardar Singh and Ors. v. State of Punjab and Ors. Learned counsel therefore, submitted that admittedly there was notice board publication of the advertisement pursuant to which the petitioners applied and, therefore, it would be wholly unjustified to terminate the services of the petitioners in absence of newspaper publication of the advertisement.

(8.) Mr. Mihir Kumar Jha, learned senior counsel appearing for the respondent Assembly submitted that the petitioners since were appointed without newspaper publication and without consultation of the Bihar Public Service Commission as required by first proviso to Rule 4(2) of Bihar Vidhan Sabha Secretariat (Recruitment and Condition of Services) Rule 1964 (hereinafter referred to as the Recruitment Rules), their appointments have been found to be an initio void and wholly without jurisdiction and thus they were terminated. Learned counsel further submitted that Several posts of personal Assistants were filled up only on the basis of notice board advertisement and when this was brought to the notice of the Speaker, he scrutinized the entire process of appointment and took a decision to terminate them as they were appointed in absence of an advertisement duly published in newspaper and likewise the petitioners who were also working as Reporters, were terminated on the same analogy. Learned counsel further submitted that after termination of the petitioners the posts were again advertised and they have been filled up and unfilled posts will again be advertised and necessary appointments will be made after following due process of law.

(9.) From the facts as noticed above, it appears that the petitioners and similarly situated persons were appointed in the office of Bihar Legislative Assembly on the basis of notice board advertisement and after termination of the petitioners the posts are said to have been filled up by fresh appointment after due advertisement. The controversy as to whether the procedures of Recruitment Rules were strictly applied in the appointment, in my opinion, need not be gone into at this stage when the posts have already been advertised and filled up. Disputed questions have been raised about filling up the entire posts of Reporters and Personal Assistants. This also in my view, need not be decided in my writ jurisdiction. Prima facie, it appears from the materials on record that the posts, were not advertised in newspaper which usually is done for filling up the public posts. The vacancies in public office can be filled up strictly in accordance with the provisions of Articles 14 and 16 of the Constitution. Publication of advertisement in newspaper has been accepted to be the well established norms to fill up public posts so as to give chance to public at large to apply for the vacant situations. Display of advertisement on the notice board of an office in my opinion, is not sufficient to attract public at large as they may not have access to a particular office to see the advertisement displayed on the notice board.

(10.) Regard being had to the facts and circumstances of the case and particularly keeping in view the fact that the vacancies to some extent have been filled up, in my opinion, it will be too late for this Court to unseat the persons having been recruited pursuant to the fresh advertisement immediately after termination of the petitioners. In the result, these applications are dismissed. No costs
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