BACHCHA RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned Counsel for the Petitioner and the State. Petitioner has challenged office Order No. 877 dated, 4.04.2006, Annexure -11, whereunder Secretary, Personnel and Administrative Reforms Department of the State Government, Respondent No. 2 has cancelled his appointment on the post of Assistant with effect from the date of initial appointment with observation that emoluments already received by the Petitioner during the period of employment shall not be recovered. The ground taken in support of cancellation is that Petitioner was not eligible for being appointed as Assistant pursuant to Advertisement No. 13 of 1987 published in Hindustan newspaper dated, 7.08.1987, as contained in Annexure -2. Perusal of Advertisement No. 13 of 1987. dated, 7.08.1987, Annexure -2 would indicate that thereunder ministerial employees of the Secretariat and attached offices as also of the Mufassil offices of the State Government were offered employment on the post of Secretariat Assistant through a limited competitive examination. Petitioner was appointed as a routine Clerk in the establishment of the Vice Chairman, Bihar State Complaint and Vigilance Board under office Order bearing Memo No. 3849 dated, 4.10.1986, Annexure -1. Perusal of the said office Order, Annexure -1 would, however, indicate that he was appointed as an outsider on the post of routine Clerk and the tenure of his appointment was coterminous with the tenure of appointment of the Vice Chairman of the Bihar State Complaint and Vigilance Board. Petitioner having noticed Advertisement No. 13 of 1987 dated, 7.08.1987, Annexure -2 applied for being considered for the post of Secretariat Assistant and after receipt of the admit card appeared in the examination and became successful, whereafter recommendations were made by the Bihar State Subordinate Service Selection Board on the basis of which Order appointing him and others bearing Memo No. 9797 dated, 27.07.1989, Annexure -4 was issued and Petitioner was posted as Assistant in the Cane Department of the State Government where he was allotted work under office Order bearing Memo No. 3106 dated, 22.08.1989, Annexure -13 and thereafter his pay was fixed in the revised scale on provisional basis under office Order bearing Memo No. 395 dated, 30.01.1990, Annexure -14 vide Serial No. 67 of the chart appended with the said office Order and at the bottom of the chart it was clearly indicated that the persons mentioned at Serial No. 61 to 67 were newly appointed persons and their salary was not required to be fixed with effect from 1.01.1986. Petitioner while serving as Assistant in the Cane Department also passed hindi noting and drafting examination, as is evident from Order bearing Memo No, 103 dated, 21.02.1992 issued by the Rajbhasha Department of the State Government, Annexure -15. Cane Commissioner under office Order bearing No. 312 dated, 31.01.1994, Annexure -16 returned the services of the Petitioner to the Personnel and Administrative Reforms Department, whereafter his services were placed at the disposal of the Water Resources Department under office Order No. 227 dated, 2.05.1994, Annexure -5 and 17 whereafter the period between 1.02.1994 to 2.05.1994 during which he awaited for posting was regularized by the Personal and Administrative Reforms Department vide their instructions contained in Letter bearing Memo No. 163 dated, 5.05.1995, Annexure -18. Petitioner was, however, placed under suspension under office Order No. 548 dated, 23.08.1997, Annexure -6 in contemplation of a departmental enquiry on the ground that he was not qualified to appear in the Limited Departmental examination conducted pursuant to Advertisement No. 13 of 1987, Annexure -2 as he was an outsider routine Clerk in the establishment of the Vice Chairman of the Bihar State Complaint and Vigilance Board and was not qualified to appear in the Limited Departmental examination meant for ministerial staff of the Secretariat, attached office and Muffasil office. Later, charge sheet dated, 22.05.1999, Annexure -7 spelling out the aforesaid charge was also served on him. Petitioner continued under suspension for about one and half year whereafter under office Order bearing Memo No. 357 dated, 24.04.2000, Annexure -21 his suspension was revoked and he submitted his joining in the headquarters of the Water Resources Department on 24.04.2000, as is evident from joining report, Annexure -22, whereafter he was posted in the office of the Chief Engineer, Water Resources Department, Siwan under office Order No. 222 dated, 25.09.2000, Annexure -23 and his last pay -slip was forwarded to the Chief Engineer under Memo No. 2449 dated, 26.09.2000, Annexure -24. Later, the departmental proceeding itself was closed under office Order No. 05 dated, 3.12.2005, Annexure -8 with stipulation that separate show cause about the illegality in his appointment on the post of Assistant pursuant to Advertisement No. 13 of 1987, Annexure -2 has already been asked for which is contained in Memo No. 03 dated, 2.12.2005, Annexure -9 in compliance whereto Petitioner submitted his reply dated, 25.01.2006, Annexure -10 and having considered the reply and the eligibility clause of Advertisement No. 13 of 1987, Annexure -2 and the fact that the Petitioner was appointed as routine Clerk in the establishment of the Vice Chairman, Bihar State Complaint and Vigilance Board as an outsider which appointment was coterminous with the tenure of appointment of the Vice Chairman of the Bihar State Complaint and Vigilance Board i.e. until 30.11.1988 under impugned office Order No. 877 dated, 4.04.2006, Annexure -11 it was held that Petitioner being not eligible to be appointed as Assistant pursuant to Advertisement No. 13 of 1987, Annexure -2 his appointment is accordingly terminated with effect from the date of appointment with stipulation that the emoluments paid to the Petitioner during the period of employment shall not be recovered.

(2.) PETITIONER has assailed the said Order on the ground that he may not be a ministerial employee of the Secretariat and attached office or the Mufassil office of the State Government as he was appointed as an outsider on the post of routine Clerk in the establishment of the Vice Chairman, Bihar State Complaint and Vigilance Board and his appointment was coterminous with the tenure of appointment of the Vice Chairman, Bihar State Complaint and Vigilance Board but nonetheless he has successfully competed along with those who were ministerial employees of the Secretariat and attached office/Mufassil office and in the circumstances after having served the two Departments of the State Government, namely, Cane Department and Water Resources Department for sufficiently long period i.e. about 10 years his appointment should not be cancelled as cancellation of his appointment will relegate him and his other family members towards starvation which shall not only be arbitrary but shall also violate his right to life.

(3.) IN support of the aforesaid claim learned Counsel for the Petitioner has relied on the Judgment in "the case of Buddhi Nath Chaudhary and Ors. V/s. Abhai Kumar and Ors., AIR 2001 SC 1176, paragraph 6, It appears in the case of Buddhi Nath Chaudhary (Supra) the appointment of the Appellants as Motor Vehicle Inspector was questioned on the ground that the Appellants did not possess the qualification and experience as provided in the advertisement but during the pendency of the litigation the Appellants continued to serve as Motor Vehicle Inspector and taking into account the service rendered during the period of litigation Hon ble Supreme Court observed as follows: