DINESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, who is an elected member of the Bihar Legislative Assembly from Sahar Constituency in the district of Bhojpur, has moved this Court questioning the validity of the appointment of respondent No. 6 to the post of Superintending Engineer, Housing Department, by the order of the Board dated 4-11-1980, as contained in Annexure-1, and to call upon him as to why a writ in the nature of quo warranto be not issued directing him to show cause under what authority he was holding that post which was illegal, unjustified and ultra vires of the provisions of the Housing Board Ordinance.

(2.) In order to appreciate the points, which have been raised on behalf of the petitioner, it will be necessary to state some facts. But it may be stated that many irrelevant facts have been brought on the record of this case by the different parties with the result that the brief runs to about three hundred and fifty pages and I will refer to the relevant facts only from the petition, counter-affidavits and reply thereto and supplementary affidavit filed on behalf of the parties. Housing Board, which is a statutory body, was created under Ordinance No. 119 of 1972 which was notified on 18-8-1972. The Ordinance is being renewed from time to time tilt it has become an Act now. Under the provisions of the Ordinance many posts, including the post of Superintending Engineer, have been created and under Section 16 (3) (1) of the Ordinance the Board, with the previous approval of the State Government, may sanction the creation of any post, the maximum scale of which exceed Rs. 1,580/- per month and for the appointment of such posts consultation with the Public Service Commission has to be made prior to the appointment.

(3.) The respondent No. 6 was working as Executive Engineer Urban Development (Housing Department) in the year 1972. When the Ordinance came into force his services were transferred on 1-9-1972 and he was posted as Executive Engineer, Jamshedpur. On 1-3-1978 he was appointed as Superintending Engineer in charge Ranchi Division but respondent No. 6 could not stay there longer because Sri J. G. P. Sinha, who was earlier holding that post, was asked to continue on that post. On 4-11-1980 the State Government directed the Board to make appointment to the post of Superintending Engineer after consulting the Bihar Public Service Commission; a true copy of the letter has been filed and marked Annexure 2. The Chairman did not act according to the direction of the State Government and issued notification appointing respondent No. 6 on the post of Superintending Engineer with effect from 1-3-1978. Some questions were raised in the Assembly regarding this irregular appointment of respondent No. 6 and reply was given that Public Service Commission will be consulted and all other formalities will be observed with regard to this appointment; a copy of the reply given on the floor of the Assembly has been filed and marked Annexure-3. Thereafter the Government, after examining the position, set aside the order passed by the Chairman, as contained in Annexure-1, under Section 23 of the Act on 28-6-1981; a copy of the order of the State Government has been filed and marked as Annexure-4. In spite of that, according to the petitioner, the respondent No. 6 was holding that post in collusion with the Chairman of the Housing Board. On 20-7-1981 the State Government recalled its previous order as contained in Annexure-4, a copy of the same has been filed with the counter-affidavit and marked as Annexure-9. This writ application was filed on 17-8-1981 and was admitted. Counter-affidavit has been filed on behalf of the Board in which it is stated that after the creation of the Board in 1972 the services of technical staff of the Housing Department, including that of respondent No. 6, were transferred to the Board on the condition that till new rules were not framed by the Board their service condition will be governed on the same terms and conditions as applicable to those persons who were serving the State Government; a true copy of the notification has been filed and marked Annexure-A. Respondent No. 6, who had joined as Executive Engineer, was confirmed on that post and he was the senior most Executive Engineer and he was made Superintending Engineer in charge; a copy of the order has been filed and marked Annexure-E. The Board made enquiries from the State Government whether the concurrence of the Public Service Commission for the promotion to the post of Superintending Engineer was necessary and a copy of the letter has been filed and marked Annexure-F. A reply was received that no concurrence was necessary; a copy of the reply of the State Government dated 3-1-1978 has been filed and marked Annexure-G. Thereafter all the formalities were completed and no objection certificate was also obtained from Vigilance Department and the notification was issued on 4-11-1980 appointing respondent No. 6 as Superintending Engineer and this was approved by the members of the Board on 15-11-1980. The promotion of respondent No. 6 has been justified on various grounds and it has been stated that the petitioner and his companions tried to create vested interest in the affairs of the Board and had been trying to put various impediments in its working and the application was not filed in a bona fide manner. As regards Annexure-4 it has been stated that it was issued under some wrong apprehension and full facts were not brought to the notice of the State Government and when all facts came to its knowledge Annexure-9 was issued. In the supplementary affidavit it was asserted on behalf of the petitioner that during the pendency of this application, concurrence of the Public Service Commission was sought for after the writ application was admit led and the Commission made some queries with regard to respondent No. 6; a copy of the letter dated 13-11-1981 has been filed and marked Annexure-7. In the affidavit filed on behalf of respondent No. 6 a number of documents have been filed in order to show that the promotion has been done in a legal manner giving the background from the year 1970 and a number of documents have been filed and they have been marked as Annexure-A to Annexure-H of the main affidavit and Annexure-X series in reply to respondent No. 6 in the supplementary counter-affidavit filed on his behalf. In this supplementary counter-affidavit, in para. 7, it has been stated that the petitioner along with some persons, who are still members of the Assembly and some ex-members have been trying to harass him because he could not oblige them for their illegal demands and all of them have set up this petition only to harass him. In the affidavit filed on 20-4-1982 it has been stated that in order to avoid confusion the Housing Board made consultation with the Public Service Commission and the Commission, after full investigation and after examining all necessary materials, has given its post facto concurrence and it was communicated under letter No. 17 dated 13-3-1982. The opinion of the Advocate General, given to the Minister Housing, has also been filed in which the action of the Board has been supported. In the affidavit filed on behalf of the State, the notification issued on 20-7-1981 has been justified and it is stated that it was done after full consideration.