Invalid appointment due to lack of jurisdiction of the appointing authority

1. Heard learned counsel appearing on behalf of the petitioner and JC to GP 8 for the State.

2. The order, as contained in annexure 10, issued vide memo no. 695 dated 20.6.2000, is under challenge, whereby and whereunder the appointment of the petitioner on the post of clerk has been cancelled and direction has been issued to recover the salary paid to the petitioner.

3. Learned counsel appearing on behalf of the petitioner submitted that the petitioner initially was appointed on 17.8.1989 on the post of assistant in High School, Narkatiaganj, West Champaran, by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, vide order as contained in annexure 1 and pursuant to that he joined the post on 1.9.1989 and the petitioner had been working in Narkatiaganj High School. It is further submitted that thereafter the petitioner was transferred to Guttilal Girls High School, Ram Nagar, vide communication, as contained in annexure 3 and since then he was working in that school and all of a sudden vide communication, as contained in annexure 5 dated 6.3.2000, the petitioner was asked to explain with regard to his appointment on the post of clerk, by the District Education Officer, pursuant to which, the petitioner submitted his reply. Thereafter an opportunity of personal hearing was afforded to the petitioner and the authorities being not satisfied from the explanation submitted by the petitioner and his submissions before them, the appointment of the petitioner was cancelled by the impugned order after giving him second show-cause notice.

4. Learned counsel appearing on behalf of the petitioner submits that the petitioner since continued on the post for more than ten years, now he could not have been terminated as direction of the authorities would be opposed to the principles of equity.

5. A detailed counter affidavit has been filed on behalf of the State stating therein that the Regional Deputy Director of Education was not the authority to appoint on Class III post in Nationalised High School and it was the District Education Officer, who was competent to do so and since in the case of the petitioner, the appointing authority is the Regional Deputy Director of Education, the appointment of the petitioner was wholly without jurisdiction. It is also stated in the counter affidavit that the post was never advertised nor it was a sanctioned post, as all the three sanctioned posts of clerk were filled up from before and the incumbents were continuing on the said posts.

6. The fact that the petitioner was appointed by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur, is not in dispute.

7. Learned counsel appearing on behalf of the petitioner, however, submits that the post on which the petitioner was working was a sanctioned post.

8. From the pleadings of the parties, however, it appears that there were only three posts of clerks in the school in question, where the petitioner initially was appointed and all those posts were already filled up from before. At the same time, it also appears that the petitioner was not appointed by the competent authority and the norms laid down for such appointments were not observed.

9. It is not the case of the petitioner that his initial appointment on the post of clerk was made after following the norms laid down nor his case is that his appointment was subsequently sanctioned by the Divisional Establishment Committee. The appointment of the petitioner on the post of clerk, therefore, appears to be ab inito void and merely because the petitioner continued in services for more than ten years, it would hardly be a ground to interfere with the order impugned. It further appears that immediately after his appointment the authorities asked him to explain in 1996 itself and the process just started within few years of his appointment and after holding an inquiry and after giving him an opportunity of being heard the order impugned has been passed.

10. In this