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Grishnath Dubey v/s State of Bihar

    CWJC 11806 Of 2004

    Decided On, 23 March 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD

    For the Appearing Parties: Ras Bihari Thakur, Satyavrat Verma, Advocates.



Judgment Text

CHANDRAMAULI KUMAR PRASAD, J.

(1.) This application has been filed for issuance of a writ in the nature of certiorari for quashing the order as contained in memo dated 27th of August, 2004 (Annexure-14) whereby the petitioner's adjustment as clerk by memo dated 8.7.1991 (Annexure-10), has been cancelled and excess salary paid to him on account of his adjustment as clerk has been directed to be recovered.

(2.) Shorn of unnecessary details facts giving ruse to the present application are that the petitioner's father was a teacher posted in Primary School and died while in service on 1.7.1980. Petitioner passed the Secondary School Examination, conducted by the Bihar School Examination Board, held in the year 1984 and thereafter, applied for appointment on compassionate ground. Prayer of the petitioner for appointment on compassionate ground was considered by the District Compassionate Committee in its meeting held on 2.9.1988 (Annexure-2) and it resolved to appoint him to a class IV post

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. In the light of the aforesaid resolution, by order as contained in memo dated 2.3.1989 (Annexure-3), petitioner was appointed as Peon and posted at Project Girls High School, Brahmpur in the district of Bhojpur. In the order of appointment, there was some error in regard to his surname which was lateron corrected by order as contained in memo dated 15.4.1989 (Annexure-4).

(3.) The petitioner although joined as Peon but later on represented before the authority for appointment to a class III post. The Deputy Director of Education, by its letter dated 10.8.1990 (Annexure-5), called for a report from the District Education Officer as to why petitioner was appointed as Peon and whether Class III posts were not available at that time. The District Education Officer, in response thereto, wrote to the Deputy Director of Education that petitioner was appointed as Peon on the recommendation of the District Compassionate Committee and as such, he is not in a position to assign the reason as to why he was appointed as such.

(4.) The Director of Secondary Education by its letter as contained in memo dated 17.9.1990 (Annexure-7), wrote to the District Education Officer that appointment of the petitioner as clerk shall not be proper on administrative ground. The District Education Officer further by letter dated 6th of November, 1990 (Annexure-8) stated that in the nationalised high Schools of the district of Bhojpur, there is no post of clerk and as such, petitioner can not be posted as Clerk. Till then, the wind was blowing against the petitioner and it goes to the credit of one Dashrath Tiwary, Deputy Director of Education who by his memo dated 26.3.1991 wrote to the District Education Officer to adjust the petitioner to a vacant post of Clerk at Project Balika High School, Etahi in the district of Bhojpur. Accordingly, by order as contained in memo dated 8.7.1991 (Annexure-10) petitioner was adjusted against the post of Clerk and posted in the Project Girls High School, Etahi. Thereafter, the petitioner was transferred to another school.

(5.) Lateron, it came to the notice of the authority that petitioner was promoted to the post of Clerk illegally by the District Education Officer and as such, by the impugned order dated 27th of August, 2004 (Annexure-14), same was cancelled and excess amount paid to him on account of his adjustment as clerk has been directed to be recovered. It is stated in the impugned order that petitioner was promoted as Clerk without following any procedure. It is this order which is impugned in the present application.

(6.) Mr. Ras Bihari Thakur appearing on behalf of the petitioner, submits that the impugned order has been passed on the ground that petitioner was promoted as Clerk, which assumption is unfounded on fact. He points out that the petitioner in fact was appointed as Clerk and hence, no procedure as required for promotion needed to be followed. Thus according to the petitioner, the impugned order being founded on erroneous assumption, is vitiated on this ground alone.

(7.) Junior counsel to G.p. VIII, however, contends that for appointment on compassionate ground, the matter has to be referred to the District Compassionate Committee and only on its recommendation, appointment can be made to a particular post. He highlights that even if the case of the petitioner is treated to be a case of appointment as a Clerk, that is vitiated on account of the fact he was adjusted to the post of Clerk without the recommendation of the District Compassionate Committee meant for making recommendation for appointment on compassionate ground. (8.) Having considered the rival submission, I do not find any substance in the submission of Mr. Thakur. Undisputedly, the case of the petitioner for appointment on compassionate ground was considered by the District Compassionate Committee and it recommended for the petitioner's appointment to a Class IV post. In pursuance thereof, petitioner, in fact, was appointed as Peon and posted in a Project Girls High School. Even if I assume in favour of the petitioner that his adjustment to the post of Clerk is a case of appointment, that also does not advance the case of the petitioner. Petitioner has ho where averred that he has been appointed as Clerk on the recommendation of the District Compassionate Committee and for that matter, case of the petitioner was never placed before the District Compassionate Committee for adjustment as Clerk.

(9.) In my opinion, when a procedure is prescribed for appointment on compassionate ground, appointment made in violation thereof, cannot be said to be legal only on the ground that the Director had issued order of adjustment of the petitioner. This is nothing but playing the words.

(10.) Mr. Thakur then submits that the petitioner's adjustment as Clerk has been rescinded without giving him any opportunity and that itself vitiates the impugned order. I do not find any substance in this submission of Mr. Thakur also. Principle of natural justice is not an unruly horse and its application depends on the facts and circumstances of each case. This principle cannot be restricted in a straight jacket.

(11.) In the present case, the District Compassionate Committee, recommended for the petitioner's appointment to a Class IV post and accordingly, petitioner was appointed as Peon. Thereafter the case of the petitioner was not placed before the District Compassionate Committee but the petitioner was adjusted as a Clerk. This, the petitioner was appointed as Clerk without following the procedure meant for appointment. In such a situation, the principle of natural justice is not attracted. The view, which I have taken finds support from a Full Bench judgment of this Court in the case of Rita Mishra and Ors. v. Director, Primary Education, Bihar and Ors., and my attention has been drawn to para-93 of the said judgment which reads as follows :

"93.--To sum up, it is categorically held that no notice is required to be given in a case of termination simpliciter. It is further held that no notice is required to be given even if the termination is on the ground that the appointment itself was invalid and the principle of natural justice or Article 311 is not attracted in such a case. The substantial question posed at the outset is, therefore, answered in negative, and it is held that no notice was required to be given to the petitioners before terminating their services since termination of their services was termination simpliciter and no stigma was attached to it. It is further held that no notice was required to be given to the petitioners even if their termination was on the ground that their appointment itself was invalid."

(12.) Mr. Thakur, then submits that in the absence of any misrepresentation or fraud, adjustment of the petitioner as a Clerk ought not to have been rescinded after a long lapse of time. In a case in which there are two views, one may save the appointment after lapse of long time but in a case in which there is only one view, illegal appointment cannot be saved. An appointment illegal in the beginning does not become legal with passage of time. Here, in the present case, I have found that the petitioner has been adjusted as Clerk without following the procedure known to law and, therefore, illegal in the eye of law. In such a case, I am of the opinion that the impugned order does not deserve to be saved only on the ground that long period had elapsed.

(13.) As stated earlier, the impugned order directs for recovery of the amount in one instalment. The order impugned to that extent seems absolutely unreasonable to me. In the facts and circumstances of the case, I am of the opinion that the excess amount paid to the petitioner on account of his adjustment as Clerk, be recovered in easy instalments and the respondents taking into account the length of service available to the petitioner, shall take decision in this regard.

(14.) The course which I have adopted is in conformity with the decision of a Division Bench decision of this Court in the case of Vijay Kumar Singh and Ors. v. The State of Bihar and Ors., 2002 (3) PLJR 808 in which it has been observed as follows :

"33.--Taking into consideration the totality of the circumstances even on the strength of the above discussions, we are unable to hold that no order should be made for the recovery of the excess amount. We would, however, require the State Government to recover the amount in easy and proper instalments. The total amount paid to the employees may be recovered without interest in at least 50 instalments provided such an employee has the tenure of 50 months or more. If an employee does not have a tenure of 50 months or more than the instalments may be reduced to a reasonable period so that such an employee does not suffer unnecessary brunt of a cut in the payment/salary etc."

(15.) In the result, I do not find any merit in this application and it is dismissed accordingly with the direction aforesaid. However, in the facts and circumstances of the case, there shall be no order as to cost
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