PRABHAT KUMAR MUKHERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellant was appointed by the government of Bihar as an Assistant Professor (Civil Engineer) in the Industries department in the year 1950. He was posted as University Engineer in the Patna University While he was serving in the Patna University he was superannuated in the year 1966 but was re-employed for a period of four years. The Patna Improvement Trust (hereinafter described as the Trust) requested the government of Bihar to lend the services of an Engineer. preferably the appellant for appointment as ' Chief Engineer of the Trust in its letter No. 295/lsg, dated January 10, 1967 the government accorded approval to the appointment of the appellant as Chief Engineer of the trust. By a resolution, dated 28/10/1967 the Trust appointed the appellant as Chief Engineer with effect from March 30, 1567 on the terms and conditions specified In the said resolution. The appellant joined his duties on 30/03/1967 in pursuance of the said resolution. It appears that subsequently the public service commission expressed Its Inability to give its concurrence to the appointment. Thereafter the government asked the Trust to terminate the services of the appellant as the Public service Commission expressed its inability to give its concurrence, in its meeting held on 8/01/1968 the Trust resolved that the government should be requested to reconsider its decision. Accordingly the government reconsidered the matter and by its letter No. 1312, LSG. dated 22/02/1968 the government communicated its approval to the appointment of the appellant as proposed by the 'trust A special meeting of the Trust was held on 22/02/1968 and a resolution was passed confirming the appointment of the appellant. In the meantime one T. N. Bajpay, an Executive Engineer of the Trust and two other persons filed writ petitions before the Patna High court challenging the validity of resolution of the Trust in appointing the appellant as Chief Engineer. The writ petitions were adjourned For bearing to 9/05/1968. On that date T. N. Bajpay produced a letter dated 8/05/1968 of State government withdrawing the sanction given to the appointment of the appellant as chief Engineer of the Trust. The letter of the State government reads as follows:- "as directed in connection with the appointment of Shri P. K. Mukherjee on the post of Chief Engineer in Patna Improvement Trust, I am to say that after taking into consideration all the facts in regard to the appointment of Shri Mukherjee, the opinion of the Legal Adviser was obtained and the government has reached to the conclusion that the appointment of Shri P. K. Mukherjee has not been made in accordance with law because according to section (28) of the Bihar Town Planning and Improvement Act, 1951 the prior approval of the Public Service Commission and prior sanction of the government for his appointment has not been obtained. Thus it if requested that Shri P K. Mukherjee be relieved at once (soon) from the post of Chief Engineer and the intimation to this effect be sent to the government without delay.

(2.) Government letter No. 1312 Stha Sewa. Sha Local Self Govt. dated 2/2/1968 in which sanction (approval) of the appointment of Shri p. K. Mukherjee was mentioned, is hereby withdrawn. On 9/05/1968 the High court made the following order: "in these three writs, the main grievances of the petitioner is regarding the alleged invalidity in the appointment of Shri p. K. Mukherjee (respondent No. 4) as Chief Engineer of the patna Improvement Trust Mr. Dayal for the petitioner, however, filed before us a recent order of the government of bihar, dated 3-5-68 (Annexure 1 to D. W. J. C. 351 of 1967) in which the government have issued a direction to the Patna improvement Trust to relieve Shri Mukherjee from his present post as soon as possible in view of this letter of the government, these three writ petitions have become infructuous because the main relief asked for has already been granted by the government. Mr. Dayal thereupon urged that there is reasonable apprehension that whatever may, be the government's order, the Chairman. Improvement Trust (respondent No. 2) may not obey the same. Mr. Verma, Standing Counsel for government has; after consulting the secretary concerned, given an assurance on behalf of the State that steps would be taken as early as possible to implement the aforesaid government Order in accordance with law. in view of this assurance Mr. Dayal does not press these petitions, which were accordingly disposed of "

(3.) Ob 15/05/1968 T. N. Bajpay filed a petition under s. 2 of the contempt of courts Act against the Chairman of the Trust and the appellant was added as a party to the petition. On 22/07/1968 Mr. Sulaiman, gave an undertaking to the High court to remove the appellant from his post subject to certain conditions. By its order dated 22/07/1968 the High court discharged the rule for contempt. The orders of the High court, dated 22/07/1968 and July 23, 1968 are to the following effect:- "22.7.68. Head counsel for all the patties and also Mr. Sulaiman in person. The main question for consideration is the due implementation of the assurance given by Mr. Verma, Standing Counsel for the government, after consulting the secretary concerned on 9th May, 1968 in C. W. J. C. No 351 of 1967, Mr. Verma assured this court that steps would be taken to implement theater of the government directing the Patna Improvement Trust to remove shri P. K. Mukherji from his post as Chief Engineer of the patna Improvement Trust. It appears from the affidavits that government have issued further directions to, Sri Sulaiman, chairman of the Improvement Trust, to see that the assurance is duly implemented by removing Sri Mukherji from his present post. Mr. Sulaiman who appears in person entertained some doubts about the legality of the order. But in the last letter addressed to him by Mr. H. Prasad on the 9/07/1968 (Annexure B) it appears that government have directed him to relieve Shri Mukherji at once and to report the action takes on their letter. Mr. Sulaiman informed as that be will gladly obey the government's order at once; provided he does not become liable in any litigation which Shri Mukherji may decide to start or continue against the Improvement Trust or the government. The learned Advocate-General thereupon intervened and stated that, according to law of Tort, if a person commits a tortuous wrong to another person under the directions of a third party, the third party alone (here the government will be liable to the person wronged and that shri Sulaiman need not have any anxiety on this point. In view of this statement of the law, Mr. Sulaiman stated that he will immediately obey the government's order and relieve shri Mukherji by this evening". "28.7.68. . . . . . . . Rule for contempt against Mr. H. Prasad and Mr. Sulaiman la discharged in view of the effective compliance with the undertaking given by Mr. Verma".