BINAY KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioners and the State. The petitioners are aggrieved by the orders dated 15.4.2008 and 16.4.2008 passed by the three man committee declining to regularize their services, holding upon consideration that their appointments were illegal.

(2.) IT is submitted that the petitioners were appointed on 29.12.1993 and 14.9.1993 as Clerks by the Regional Deputy Director of Education, Tirhut Division at Muzaffarpur, and who was statutorily competent to make the appointment as the appointing authority. Their services were terminated on 12.6.2000 and 26.11.1999 respectively leading to institution of C.W.J.C. No. 8325 of 2000 and C.W.J.C. No. 9089 of 2000. By separate orders dated 6.9.2001 and 9.7.2001 the writ applications were allowed. Petitioner no. 1 was held to have been appointed by the Divisional Establishment Committee after following procedure. The liability for not following reservation roster could not be fastened at the door of the petitioner. The termination of petitioner no. 2 was likewise held to be bad holding that the appointment was made by the Divisional Establishment Committee after advertisement. In a span of six years his appointment has been verified more than once. Even if some wrong appointments has been made in Tirhut Division the allegation against him across the Board without identification of individual facts was not justified. While the termination orders stated that it was without advertisement, the show cause notice did not mention that ground. The non compliance of reservation roster could not be attributed to the petitioner. IT was further noticed that similar other applications had been allowed and affirmed in L.P.A.

(3.) WHAT the term merger shall mean in a case shall largely depend on the nature of the orders passed as held in AIR 1967 SUPREME COURT 681 "State of Madras v. Madurai Mills Co., Ltd." at Paragraph-6 as follows:- 6.But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. A similar view has been expressed in (2010) 11 SCC 374 (MRF Limited v. Manohar Parrikar) at Paragarph-38 as follows:- 38The merger is essentially of the operative part of the order and the principle of merger of the order of the subordinate court with the order of the superior court cannot be applied when there is no order made by the superior court on merits and the controversy between the parties has not been looked into by the superior court.