STATE OF BIHAR Vs. SANJAY RAI

JUDGEMENT

(1.) THE appeal is against a common judgment and order dated 8th October, 2002 rendered on three writ petitions. In this appeal, the appellant is aggrieved by the order in so far as the same relates to C.W.J.C. No. 7786 of 2002* (Sanjay Rai vs. State of Bihar & Ors.). In the writ petition, it was contended by the petitioner -respondent that on 12th June, 1989, he was appointed in a scale and such appointment was extended on 6th May, 1991 till further order. It was contended that on 7th December, 2001, a show cause was issued to the respondent and thereupon without considering the replies given to the show cause on 13th December, 2001 and 19th December, 2001. the impugned order of termination of the services of the respondent dated 11th February, 2002. was passed.

(2.) IN the counter affidavit, it was contended that the appointment letter of the respondent dated 12th June, 1989 would show that the said appointment was limited for 89 days and the same was a purely temporary appointment terminable at any point of time without showing any cause. In the counter affidavit, it was further contended that the letter dated 6th May, 1991, by which the said temporary service of the respondent was extended, was at the behest of the Headmaster of the School, who had no authority to do so. In addition to that, it was contended that upon consideration of the replies to the show cause, it was ascertained that before the appointment was given by the letter dated 12th June, 1989, no advertisement was published and accordingly, the respondent was the sole candidate for the post in question. It was contended that such appointment having been given in a nationalized school, provisions contained in Articles 14 and 16. squarely applied to the same and having regard to the facts pertaining to the appointment as was given to the respondent, the appointment was per se bad and therefore, by the order dated 11th February, 2002 the service of the respondent had been terminated from the date thereof. The learned Single Judge, who dealt with the writ petition alongwith two other writ petitions, found that the order terminating the services of the petitioner did not speak the reasons in support thereof. The learned Judge observed that the contentions raised in the show cause had not been dealt with in the order of termination. The learned Judge found as a fact that the respondent was permitted to work uninterruptedly from 12th June, 1989 until issuance of the order of termination dated 11th February, 2002 and felt that it was improper to terminate the services of an employee, who had been permitted to work uninterruptedly for a period in excess of 12 years. Particularly for those reasons the writ petition was allowed.

(3.) BEFORE us the learned counsel for the appellant submitted that when an appointment is per se illegal i.e., in violation of mandatory provisions of law, it does not matter whether on the basis of such appointment, the appointee has been permitted to work for how many years. It was contended by the learned counsel before us that no sooner the illegal appointment was brought to the notice of the authorities of the State, appropriate action had been taken and it was found that contrary to the mandatory provisions contained in Articles 14 and 16 of the Constitution, the respondent alone competed for the post in question and such an appointee, in law, has no right to remain in service although the detection was delayed.