Dhrub Prasad and Others vs The State of Bihar and Others

S.J. Mukhopadhaya, J.—The Petitioners in this case have challenged the order, contained in Memo No. 1165 dated 7th of April, 1992 (Annexure-5), by which the appointments of the Petitioners have been cancelled on the ground of illegal appointment after about 12 years of their services.

The case of the Petitioners lies in a narrow compass, as stated hereunder:

The Respondent-State vide their resolution dated 15th of January, 1979 laid down mode and procedure for appointment against Class-IV posts. According to the aforesaid resolution Selection Committees at the district level were to make selection for appointment against Class IV posts available in the district offices under the Excise and Prohibition Department of the State of Bihar. In the said year 1979 a number of posts of Excise Constables (Class IV posts) were created in the Excise and Prohibition Department in different offices vide letter dated 10th of October, 1979. Total 1267 posts were created. According to the Petitioners, notice was published by the Deputy Commissioner, Excise and Prohibition, Darbhanga and Koshi Division, Begusarai in the year, 1980 for filling up the Class IV posts of Excise Constables, which were under his jurisdiction. Petitioners along with Ors. applied for the said posts. They were called for interview, which was held on 13th of June, 1980, and after the recommendation of the Selection Committee, they were appointed to the post of Excise Constables vide orders, contained in different letters dated 13th of June, 1980 (Annexure-1 series). The orders of appointment were issued by the Deputy Commissioner, Excise and Prohibition Department, Darbhanga and Koshi Division, Begusarai.

The Petitioners thereafter joined their respective posts and continued to function but their salary was not released. It was only vide letter dated 13th of June, 1981 (Annexure-2), when the extension relating to posts were granted, salary of the Petitioners and Ors. wore released from the month of June, 1981. The Petitioners continued to receive their salary from June, 1981 onwards.

In the letter dated 13th of June, 1981 (Annexure-2) while it was ordered to release the salary, it was ordered that the payment should be released in favour of those, who have been appointed prior to 30th of June, 1980, and they will be getting the salary. Any appointment made after 30th of June, 1980 will not be recognized. Further it was mentioned therein that the temporary posts will continue till the persons appointed for prohibition purpose are not adjusted against permanent posts. A bar was put to make new appointment.

According to the Petitioners, the Petitioners and Ors. continued to function against the posts of Excise Constables, having been appointed prior to 30th of June, 1980 and their services were transferred and placed at other places for their absorption against permanent posts. Further according to the Petitioners, all the time their services remained satisfactory and when pay-revision was made, the salary of the Petitioners was also reviewed. It was alter about 12 years, when the Petitioners were still continuing the Respondents came out with the impugned order dated 7th of April, 1992 (Annexure-5) stating therein that the appointments of the Petitioners have been made illegal by the Deputy Commissioner, Excise and Prohibition Department, Darbhanga and Koshi Division, Begusarai and their services have been cancelled. The order has been passed by the Commissioner-cum-Secretary of the Excise and Prohibition Department of the State.

Counsel for the Petitioners submitted that they were appointed after following the procedures of appointment. They were interviewed; selection was made by the Selection Committee, who declared them fit and recommended the Petitioners along with Ors. and then only the orders of appointment have been issued in favour of the Petitioners. It was further contended by the counsel for the Petitioners that no show cause notice was given to the Petitioners prior to the issuance of the impugned order of cancellation of appointment dated 7th of April, 1992 (Annexure-5), in complete violation of the rules of natural justice. Counsel for the Petitioners relied on different decisions, including a decision of the Hon''ble Supreme Court in the case of H.C. Puttaswamy and others Vs. The Hon''ble Chief Justice of Karnataka High Court, Bangalore and others, He also submitted that the Petitioners having already performed their duties for about 12 years, it was not open to the Respondents to re-open the matter relating to legality of appointment. For this proposition the counsel for the Petitioners relied on a decision of this Court in the case of Bhairvi Nandan Mishra Vs. State of Bihar and Others,

Counsel for the State submitted that the appointment of the Petitioners having been made illegally, there was no question of giving any show cause notice in favour of the Petitioners. According to him, this matter stands settled by different decisions of this Court as well as that of the Hon''ble Supreme Court.

In the counter affidavit filed by the Respondent-State, it was stated that the temporary vacancies of Class IV posts are to be filled up by the Excise Superintendent in accordance with the list of candidates from the panel. It was further stated therein that total number of Class IV posts, which were created in the districts, vide letter dated 10th of September, 1979 (Annexure-A) all the District Officers were asked to make appointment of Excise Constables in their respective districts. The Deputy Commissioner. Excise and Prohibition Department was not empowered to make such appointment and thereby the appointment was illegal. No other ground has been given by the Respondents as to what specific instruction or rule, which is mandatory in nature was violated when the appointments of the Petitioners were made.

The assertion of the Respondents in their counter-affidavit to the extent that the District Officers were directed to make appointment against Class IV posts of Excise Constables but such power was not vested with the Deputy Commissioner, Excise this argument is to be rejected. The Deputy Commissioner of Excise is admittedly higher authority than that of the District Officers. In the District office, the Collector is the head. Different Districts and the Controlling Officers of such districts are within the control and jurisdiction of the Divisional Commissioner. The power, which was vested with his subordinate officer automatically stands vested in him, being superior officer, the power of appointment being administrative in nature. The Rule 3 of the Bihar Boards Miscellaneous Rules also vests such power on the higher officer. Thereby, if the power of appointment is vested with the District Officer, the same stands automatically vested in the superior officer like Deputy Commissioner.

So far as the appointments of the Petitioners are concerned the same have been made after due interview and on the recommendation of the Selection Committee, this matter has not been denied by the Respondents. The Respondents had also knowledge with respect to the appointment of the Petitioners will be evident from the fact that in the counter affidavit it has been stated by the Respondents themselves that the information regarding appointments of the Petitioners was sent to the Secretary to the Excise Commissioner vide Deputy Commissioner''s letter No. 93 dated 13th of June, 1980. If for 12 years, i.e., since June, 1980 up to 1992 the Respondent Excise Commissioner has not acted on the basis of the same by approving and/or dis-approving such appointment, in spite of his knowledge as back as in the month of June, 1980, I feel that after 12 years this matter cannot be re-opened.

At this stage it is also to be taken into note that the intimation relating to appointment of the Petitioners was sent vide letter No. 93 dated 13th of June, 1980. It was one year thereafter the Respondent State from its Excise and Prohibition Department issued a letter dated 13th of June, 1981 (Annexure-2). In that letter it was stated that the persons appointed after 30th of June, 1980, their services will not be recognized, meaning thereby the persons appointed prior to 30th of June, 1980 relating to which the knowledge was there, recognition was granted by the Respondent-State. By this letter dated 13th of June, 1981 (Annexure-2) the decision of the Respondent State having been issued by the order of the Governor of Bihar, the Respondent Commissioner and Secretary cannot re-open the matter at this belated stage.

Further it is to be taken into note that according to the Government Circular dated 3rd of December, 1980, if any person makes illegal appointment, then it is open to the Respondent-State to start a departmental proceeding against the person, who made illegal appointment and to dismiss him from service, if it is found that he has made illegal appointment. In this case appointment having been made on 13th of June, 1980, intimation having been sent by the Deputy Commissioner of Excise and Prohibition, Darbhanga and Koshi Division, Begusarai as back as on 13th of June, 1980 to the Excise Commissioner, the Respondents thereby having their knowledge 12 years back, they cannot re-open the matter of departmental proceeding against such officer. This finding I am giving on the basis of the decision of the Hon''ble Supreme Court in the case of The State of Madhya Pradesh Vs. Bani Singh and another, as well as decision of this Court in the case of Shyam Kishore Singh v. State of Bihar and Ors. passed in C.W.J.C. No. 4584 of 1991 disposed of on 30.10.1991.

If the matter of departmental proceeding cannot be initiated against the Deputy Commissioner of Excise at this belated stage of 12 years, I fail to understand as to how the Respondents re-open the matter of illegality of appointment of the Petitioners, they having such knowledge 12 years back relating to appointment of the Petitioners made by the Deputy Commissioner of Excise.

Accordingly, this writ application is allowed and the impugned order dated 7th of April, 1992 (Annexure-5) is hereby quashed.

But in the facts and circumstances of the case, there will be no order as to costs.