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PATNA HIGH COURT
S.B.Sinha and G.C.Bharuka JJ.
Mannu Kumar
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 8352 of 1992 ;
Decided On : JANUARY 20, 1993
CONSTITUTIONAL LAW - ARTICLE 16 - APPOINTMENT - ILLEGAL APPOINTMENT - PRINCIPLES OF NATURAL JUSTICE - APPLICABILITY - BACKDOOR APPOINTMENTS - JUDICIAL REVIEW.
Fact of the Case:
The petitioner challenged the cancellation of his appointment as a Graduate Physical Training Teacher in a school run by the Welfare Department of the State of Bihar. The appointment was made at the behest of the Minister of Welfare, without following the prescribed recruitment rules and procedures, and in violation of Article 16 of the Constitution of India.
Finding of the Court:
The court found that the petitioner's appointment was illegal and void ab initio, as it was made by an incompetent authority and without following the mandatory provisions of the recruitment rules and Article 16 of the Constitution. The court held that the principles of natural justice were not required to be complied with in this case, as the petitioner had admitted that his appointment was illegal.
Issues: 1. Whether the petitioner's appointment was illegal and void ab initio? 2. Whether the principles of natural justice were required to be complied with in this case?
Ratio Decidendi: 1. The court held that the petitioner's appointment was illegal and void ab initio, as it was made by an incompetent authority and without following the mandatory provisions of the recruitment rules and Article 16 of the Constitution. 2. The court held that the principles of natural justice were not required to be complied with in this case, as the petitioner had admitted that his appointment was illegal.
Final Decision: The court dismissed the petitioner's application, holding that his appointment was illegal and that the principles of natural justice were not required to be complied with. The court also observed that the practice of making backdoor appointments was a matter of great concern and that the ministers and officers of the State of Bihar should realize that they are governed by the rule of law.
S.B.Sinha and G.B.Bharuka JJ.
1. In this application the petitioner has prayed for quashing of an order as contained in Memo No. 3836 dated 30-6-1992 whereby and whereunder the appointment of the petitioner in the post of Graduate Physical Training Teacher in Anusuchit Janjati Awasiya Uchcha Vidyalaya, Nima, Katihar has been cancelled and also for quashing of the order whereby he has been directed to refund a sum of Rs. 12.127-60 paise.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner filied an application before the Director Welfare, Government of Bihar for his appointment as a Graduate Physical training teacher in the school in question.
4. The Minister Incharge, Tribal Welfare made an endorsement to the respondent No. 3 on 21-8-1991 for his appointment in the said school. The said application of the petitioner was thereafter forward by the Assistant Director, Welfare, vide his memo No. 7204, dated 1-10-1991 with a direction to take necessary steps for his appointment.
5. The petitioner on 27-12-1991 again filed an application before the Minister Incharge, Tribal Welfare Department, stating: therein that only the Director Welfare was competent to appoint Graduate trained physical training Teachers, On that application the Minister Incharge Tribal Welfare by an order dated 16-1-1992 directed the District Welfare Officer, Katihar to appoint the petitioner on the vacant post.
6. The District Welfare Officer pursuant to the aforementioned direction appointed the petitioner in the school by a letter dated 17-1-1992. The said offer of appointment is contained in Annexure 6 to the writ application.
7. The petitioner joined the said school on 22-1-1992. The petitioner, however, has not been paid his salary from June, 1992. The petitioner submitted an application on 25-2-1992 for regularisation of his appointment and upon that again an endorsement in favour of the petitioner bad been made by the Minister.
8. The Director, Welfare Department, however by his letter dated 18-4-1992 directed the petitioner to show cause as to why he should not be removed from the said post as his appointment was illegal. A copy of the letter is contained in Annexure-10 to the writ application. The petitioner submitted his show cause to the respondent No. 3 on 8-6-1992, a copy whereof is contained in Annexure-11 to the writ application.
9. The petitioners appointment has been cancelled and pursuant thereto the Headmaster of the said school has directed the petitioner to refund a sum of Rs. 12,127-60 paise on the ground that his appointment has been cancelled with effect from the date of appointment.
10. The learned Counsel appearing on behalf of the petitioner has submitted that prior to issuance of the impugned order, he was entitled to an oral hearing, He has further submitted that the grounds mentioned in the show cause notice and the grounds mentioned in the impugned order vary and in that view of the matter too, the impugned order must be held to be ill-gal. The learned Counsel further submitted that in any event, the petitioners application for regularisation should have been considered by the respondent. The learned Counsel in support of his contention relied upon a decision of the Supreme Court of India in Shrawan Kumar Jha V/s. State of Bihar, reported in AIR 1991 SC 309.
11. In this case a counter affidavit has been filed on behalf of the respondent Nos. 2 to 4 wherein it has inter alia been contended that the petitioners appointment was wholly illegal and void ab initio.
12. According to the respondents as soon as the illegal appointment was made known to the District Welfare Officer, he immediately took action in the matter. According the respondents the petitioner had been appointed without observing the rules and procedures laid down by the State and further the said appointment had been made by an authority who was not competent therefor.
13. It is one of those cases which depicis a sordid state of affairs
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