STATE OF BIHAR Vs. SHAKTI SHANKAR SINHA

JUDGEMENT

(1.) BY a notice dated 31st October, 2001, it was held out to the respondent -writ petitioner that a list of illegal appointees have been prepared, who had been appointed without following the mandatory rules for appointment and in that list, the name of the respondent -writ petitioner has been included. It was stated in the said notice that the respondent -writ petitioner should show cause as to why his services should not be terminated. The respondent -writ petitioner gave a reply thereto. Thereupon by an order dated 11th February, 2002, the services of the respondent -writ petitioner were terminated.

(2.) The writ petition challenging the order dated 11th February, 2002 having succeeded before a learned Single Judge of this court, the present appeal has been filed. Lt is the case of the appellant that the respondent was appointed on a Class -IV post on 29th May, 1985 when he did not respond to any advertisement and he did not go through any selection process. It is the contention of the appellant that the very appointment of the respondent is thus, void ab initio being in total disregard to the constitutional scheme as also the recruitment rules framed by the State. It is the case of the appellant that on the basis of the recommendation of the Headmaster, the respondent was appointed on a Class -III post on 4th January, 1990 and such appointment is also contrary to specific rules made by the State Government. It is the contention of the appellant that since the appointment of the respondent was void ab initio, the same could be put to an end at any point of time and in that matter, it was not even necessary to give a notice. It was contended that having regard to the nature of the appointments, as would be evident from the letters of appointment, appointing him on Class -lV and Class -III posts as well as his reply to the show cause, the appointments of the respondent were illegal and not irregular.

(3.) ANYTHING contrary to law being illegal is void. No edifice can be built up without a foundation and an illegal thing being void, the same is no foundation at all. ln the circumstances, if the very appointment is void, it is void from the date of the appointment and as a result, a declaration thereof at a later point of time is only a declaration to that effect. If the appointment is void, the person concerned does not acquire the status of employee and accordingly, is not protected by Article 311 and as such, question of giving prior notice etc. may not apply.