Birendra Singh vs The State of Bihar and Others

S.B. Sinha, J.—The petitioner in this writ application has sought for issuance of a writ of certiorari for quashing a letter bearing no. 84 dated 11.2.1986 as contained in Annexure-6 to the writ application, whereby and whereunder the petitioner has been forbidden from signing the attendance register. The petitioner was appointed pursuant to Memo No. 1436/39 Siwan dated 13.2.1984 purported to be under the orders of the Education Minister, Bihar dated 22.11.1983 and the direction of the Director, Secondary Education as contained in his letter bearing no. 607-8 dated 21.1.1984. The said order of appointment was absolutely temporary in nature and has been issued under the signature of the District Education Officer, Siwan. Admittedly at the relevant time, petitioner''s father was acting as Head-master of the School in question.

The petitioner has alleged that because the authorities of the Education Department bore animosity and grudge as against the petitioner''s father, the impugned order as contained in Annexure-6 to the writ application has been issued, although the persons similarly situated have been allowed to continue.

In this case a counter affidavit has been filed on behalf of Respondents 1 to 4, wherein it has been contended that the appointment of the petitioner as contained in Annexure-1 to the writ application was modified by order dated 22nd February, 1984, whereby his appointment has been made on a purely temporary basis for a period of three months. In support of the assertions, a letter has been annexed which is contained in Annexure-A to the counter affidavit. However, according to the Respondents despite the said fact the Incharge Headmaster (father of the petitioner) got him continued till he retired. The petitioner in a rejoinder to the said counter affidavit denied the factum of issuance of Annexure-A to the counter affidavit.

It has further been reiterated that the petitioner was appointed as a Clerk in terms of Annexure-1 to the writ application after necessary consultation in this regard has been made by and between the authorities of the Education Department. It is not in dispute that the petitioner''s appointment was purely temporary in nature. It has also not been stated that the appointment of the petitioner was made after following the mandatory provisions of the Recruitment Rules as also Article 16 of the Constitution of India. It has not been disputed at the Bar that the appointment of teaching and non-teaching staff in a nationalised School is required to be done in terms of the provisions of Bihar Secondary Education (Condition of Service) Rules, 1983 framed under the provisions of the Bihar Non-Government Secondary School (Taking over of Management and Control) Act, 1981.

In our opinion, in view of Annexure-A to the counter affidavit, the petitioner was merely appointed on purely temporary basis and that too for a fixed period of three months. The petitioner, therefore, had no right to continue to serve in the said School on the expiry of the aforesaid period unless the service of the petitioner has been extended in accordance with law by the competent authority.

Further in view of 1983 Rules which are statutory in nature neither the Minister of Education nor the Director of Secondary Education could have initiated in the matter of appointment of teacher in a nationalised School. Such appointments must conform to the provisions of the said Statutory Rules and any appointment made in violation thereof would render the appointment nullity.

Mr. Ganesh Prasad Singh, Learned Counsel appearing on behalf of the petitioner, however, has submitted that in this situation, petitioner''s service should have been regularised.

The submission of Mr. Singh is taken to be note of, only to be rejected. A person who has been appointed on a tenure post and that too on wholly irrelevant and extraneous considerations has no right to hold the post as his appointment itself is a nullity being violative of the mandatory provisions of the Recruitment Rules as also Article 16 of the Constitution of India. It is now well known by various decisions of this Court as also of the Supreme Court of India that a regularisation cannot be a mode of recruitment in derogation to the provisions of the Statutory Rules as also Article 309 of the Constitution of India.

Mr. Singh further submitted that as the persons similarly situated have been retained in service, the petitioner should be allowed to continue in service.

For the reasons aforementioned, this submission of Mr. Singh cannot also be accepted. In any event the petitioner has not stated that who else were retained in service nor the petitioners have named those persons who are allegedly similarly situated. In any event, if the petitioner is allowed to continue only on the ground that other persons who were also illegally appointed have been allowed to continue in service would amount to perpetuation of illegality by this Court.

However, we observe that the Director of Secondary Education and other concerned Officers of the State of Bihar should apply the law as also the policy decision of the State as against all concerned employees.

It further goes without saying that in the event the State of Bihar intends to fill up the post, the case of the petitioner may be considered along with other eligible candidates and in accordance with law. This application is dismissed with the aforementioned observations.

G.C. Bharuka, J.

I agree.