2007 Supreme(Pat) 1159

PATNA HIGH COURT
Shiva Kirti Singh and Sheema Ali Khan JJ.
Hemkant Jha, Dharmshila Devi, Umesh Kumar Yadav, Surendra Kumar, Dileep Kumar, md. Kalamuddin, Raju Kumar, Naresh Prasad Singh, Jitendra Kumar, Pawan Kumar @ pawan Kumar Jha, Chandar Lal Singh, Sunil Kumar Rana, Ram Narayan Harijan, mahendra Kumar Rana, Kamlesh Kumar Yadav, K.B.Bipin Kumar
Versus
State Of Bihar
Letters Patent Appeal No. 625 of 2003 ; 460 of 2003 ; 426 of 2003 ; 545 of 2003 ; 583 of 2003 ; 429 of 2003 ; 425 of 2003 ; 553 of 2003 ; 401 of 2003 ; 418 of 2003 ; 427 of 2003 ; 431 of 2003 ; 419 of 2003 ; 717 of 2003 ; 1189 of 2003 ;
Letters Patent Appeal No. 644 of 2006 ;
Decided On : JULY 18, 2007

Headnote:Service Law-Appointment on the Post of constable cancelled on the ground that appointment made through back door method in complete disregard or procedure for appointment laid down in relevant rules in Police Manual and in violation of constitutional mandate of equality in public employment-Such appointments do not confer any right on the appointee and in such cases of appointments made without following due process as per mandate of the constitution or the relevant rules for appointment, absorption, regularization or reengagement-Principle laid down in Uma Devis Case though considered in the context of absorption/regularization will apply with equal force where such illegal appointment has been terminated and the court is called upon to consider such order and the connected issue of ordering for reinstatement i.e. for continuation of such illegal appointments. (Para 6)

       AIR 1991 SC 101, AIR 1998 SC 3261, 2001 (3) PLJR 217, (2006)4 SCC CI CWJC No. 14685 of 2001 and analogous cases decided on 12.11.2001, LPA No. 1496 and 1514 of 2001 1999 (3) PLJR 984-Referred to.

       Service Law-Appointment cancelled on the ground that appointment made through back door method-Enquiry held-Notices issued-Back door appointments detected-Action for their termination taken-In order to insure rule of law and obedience to consitutional mandate governing public employment, the State and its officials must be held duty bound to take such steps and there is no legal infirmity in such action. (Para 8)

       Service Law-Appointment-Back-door method-Cancellation-Employees appointed dehors the appointment rules and in violation of constitutional mandate of equality in public employments-No decisions of the State Government to show relaxation of rules and laying down of any policy to support such back door appointments-Writ petitions in exercise of wholesome power under Article 226 of the constitution could not have been allowed on ground of purported violation of natural justice when on their own pleadings petitioners Gould not show any right to hold the post to which they claim to have been appointed-For issuance of writ of Mandamus petitioner besides showing a statutory or public duty upon the concerned authority to act otherwise must also prove co-existence of a corresponding right in himself in order to claim enforcement of the said duty. (Para 9)

       Service Law-Appointment-Back door methods-cancellation-Principle of natural justice-There is no scope to hold that in an enquiry against an individual employee regarding his appointment being illegal notice is not necessary-In individual cases such notice must be given to ensure that the enquiry is just, fair and reasonable-Natural Justice is not an unruly horse which can be deployed anywhere and everywhere even to defeat the ends of justice-The purpose of observing principle of natural justice is to ensure fairness and justice-It will depend on the fact of a given case and if on facts the court comes to a conclusion that lack of notice has caused injustice or that there is fair and reasonable chance of injustice and prejudice the relevant issue may be remitted back to the concerned authority for fresh decision after affording opportunity of hearing to the affected party-But in a case of present nature where it has found that the backdoor procedure adopted was common to large number of employees including the appellants and the concerned authority has considered fundamental facts and they have been established unquestionably not only in a proceeding but also before the court in a writ proceeding under Article 226 of the constitution-It would be unfair and unjust to segregate the cases of some of the employees on the ground of alleged lac of notice and to direct for reconsideration of only their cases by the authorities when on facts court has already found their appointments were admittedly made in similar fashion as those of others whose appointments have been terminated on valid grounds after giving notice-Such exercise would be futile and would envolve only a wastage of public time and saddle the concerned employees with further harassment and expenses-It will be contrary to well established principle that for interference in exercise of writ jurisdiction the petitioner in given circumstances must show that had a right to hold the post-It will also lead to perpetuate ingustice-Appellants have failed to succeed in the challenge to orders of termination and have failed to show any right in themselves to hold the post of constable-Writ jurisdiction under Article 226 could not have been exercised in a different manner when all cases stand on same footing-No plausible ground to interfere with the orders under appeal. (Paras 13 & 14)

       AIR 2006 SC 257; 1988 (3) SLR 130-Relied Upon.

       Service Law-Appointment-Back door method-Cancellation-Appointment given by superior police officer by way of compensation for injury caused to his brother, a policeman on duty due to accidental firing. Appointment is being terminated after long service of more than 18 years-Not possible to grant relief for reinstatement as his appointment was also similar in procedure like others i.e. back door method-However, it is well settled that in appropriate cases court can mould the relief in exercise of writ jurisdiction under Article 226 of the constitution to serve the interest of justice-State of Bihar directed to pay Rs. 500 000 as compensation for wrong way of compensating the family through illegal appointment-Amount must be paid to him within three months otherwise if will carry an interest 10% per annum compounded every year till payment-State of Bihar if so adviced may initiate steps against those responsible for illegal appointment for realising the compensatory amount-No ground to interfere with the impugned judgment and orders of learned Single Judge-Further observed that if the government feels that recruitment to the post of constable in Police force on special grounds includes bravery or extreme hardship due to injury to a brother while on duty in police force is likely to enhance the efficiency or morate of policemen on such special grounds keeping in view the requirements of Articles 14 & 16 of the constitution. (Paras 15, 16 & 17)