Sri. Kishore Kumar Sinha, Sanjay Kumar Sinha and Rajesh Kumar Singh and Others vs The State of Bihar and Others

Radha Mohan Prasad, J.—In all the three writ applications the order of 9th September, 1992 issued by the Director, Employment and Training, Bihar, Patna, as contained in Annexure A is under challenge. By the said order the appointments on the posts of Clerk of all the Petitioners of the three writ applications have been cancelled on the ground that the said appointments were illegal and unauthorised as they were found to be beyond the total sanctioned strength of Clerks.

In short, the case of the Petitioners in the three writ applications is that they are qualified for appointment as clerk and their appointments on the posts of Clerk have been made in different Employment Exchanges after following the procedure for regular appointment within the sanctioned strength and that there was no illegality committed while making their appointment. Further, it has been submitted that their appointments have been made with the approval of the Employment and Training, Government of Bihar, Patna (Respondent No. 2),

On the other hand, the case of the Respondents in their counter affidavit, is that the strength of Clerks for Employment Exchanges is maintained at the Directorate of Employment Exchanges and Training, Bihar, Patna and that the number of actual vacancies is maintained at the Directorate level on the basis of the strength of the cadre as a whole and not on the basis of region wise or exchange wise. It has been stated in the counter affidavit that there are 297 sanctioned posts of Clerk in the Employment Exchanges under the Directorate of Employment and Training, Bihar, Patna against which the appointments had already been made prior to the joining of the persons whose appoiments have been cancelled by the impugned order. Thus, it is contended that no sanctioned posts existed on which the Petitioners could have been validly appointed or joined.

In the reply affidavit filed on behalf of Petitioners it is stated that the statement regarding the total sanctioned posts in the counter affidavit is not correct. According to the Petitioners the total strength of the Clerks in different Employment Exchanges/Sub-regional Employment Exchanges are 334. In support of the same the Petitioners have annexed certain documents which in view of the order which I propose to pass, I do not consider any necessity to deal about them in detail.

Mr. Tara Kant Jha, learned Counsel apprearing for the Petitioners in C.W.J.C. No. 12059 of 1992 has submitted that it is clear case of non-application of mind by the authority before passing of the impugned order inasmuch as if the Petitioners would have been given opportunity to explain before the impugned order was passed, the entire matter would have been explained by them and they would have shown that in fact, their appointments have been made strictly in accordance with law and within the sanctioned strength of Clerks. In support of his aforesaid submission learned Counsel by way of an example referred to the case of Petitioner No. 2 who was appointed vide Annexure 4 on the post of Clerk which was sanctioned for Women Cell in Dumka. He submitted that the said post had initially been sanctioned during the financial year 1990-91 and the extension of the said period was made from time to time and the last one was vide order contained in Government letter dated 26th August, 1992 for the period 1.8.1993.

Mr. Jha, learned Counsel for the Petitioners referred to the letter dated 18th February, 1994 of the Joint Director, as contained in Annexure 12 and the reply given by the Assistant Director, as contained in, Annexure 13. The Joint Director, Vide Annexure 12, has enquired from the Assistant Director, employment, Sub-Regional Employment Exchange, Jamshedpur/Dumka with regard to the names of the persons appointed on the posts of Women Clerk in the Special Cell for women to which the Assistant Director, Dumka, vide Annexure 13, replied that Petitioner No. 2 had been appointed against the said post and that later by the impugned order her appointment had been cancelled. Thus Mr. Jha, learned Counsel appearing for the Petitioners, has submitted that from the said facts it is apparent that the reason assigned in the impugned order that the appointments had been made beyond the total sanctioned strength is on the face of it is nonest in so far as Petitioner No. 2 is concerned. Similarly, he also referred to the case of Petitioner No. 5, who has been appointed against the reserved post meant for Scheduled Tribes. Further, it was submitted by him that appointments were made by a joint selection committee constituted for the said purpose which had made its recommenation vide Annexure 2, in which the names of the Petitioners were also recommended to the Director, vide Annexure 2/1 and approved by the Director on 26.12.1992. In support of this he referred to the note given by the Director in the margin of said Annexure 2/1, which has not been disputed by the Respondents although in this regard answer has been given in paragraph 16 of the counter affidavit wherein it is only stated that "...from the official record available in the Directorate it does not transpire that any such approval has been accorded for the appointment of the Petitioners."

Mr. S.J. Mukhopadhyay, learned Counsel appearing to the Petitioners in C.W.J.C. No. 10380 of 1992, submitted that the only reason for cancelling the appointments of the Petitioners, as stated in the impugned order, is that their appointments were illegal and unauthorised as they have been found to have been made beyond the total sanctioned strength of Clerks. It is contended by the learned Counsel that the vacancies existing in the respective Employment Exchanges are not in dispute. What has been contended by the Respondents in the counter affidavit is that the said vacancies cannot be treated as vacancies actually existing in the cadre under the Directorate of Employment and Training and that unless prior approval of the Director is obtained for appointment, no vacancy can be said to be existing at the particular time anywhere in any office under the Directorate of Employment. Learned Counsel submitted that from the documents, contained in Annexures 21, 22 and 26, it would appear that the appointments of the Petitioners were made in full consultation and approval of the Director of Employment (Respondent No. 2).

On the other hand, Mr. Noorul Warish, learned Standing Counsel No. III appearing for the State submitted that the appointments of the Petitioners were made beyond the total sanctioned strength of the posts of Clerk by such authorities who did not have the power to make appointment. In this regard he placed reliance on the Government Circular dated 5th January, 1957 as contained in Annexure A to the counter affidavit. He submitted that according to the provisions, contained in the said circular, the State Director is the appointing authority in respect of the appointments of Assistants in the Employment Exchanges, whereas, in the present case, the orders of appointment annexed to the writ applications, would show that they have been issued by the Assistant Director, who was not the competent authority.

In reply, Mr. Mukhopadhyay, learned Counsel appearing for the Petitioners in C.W.J.C. No. 10380 of 1993 submitted that the present appointments of the Petitioners have been made on the posts of Clerk and not on the post of Assistant. According to him, under the provisions contained in Annexure-A itself, the appointing authority in respect of the non-gazetted staff of his own office and in respect of the Office Superintendent of the Regional Employment Exchange and the Assistants in the Exchanges is the Director whereas the Regional Employment Officer and the Sub-Regional Employment Officers are the appointing authorities in respect of other non-gazetted staff in their own offices and in the exchanges subordinate to them subject to prior approval of the State Director. According to the learned Counsel, the post of Clerk is not covered by the first part for which the State Director has been made the appointing authority.

In the third case, i.e., C.W.J.C. No. 12849 of 1992 Mr. Ranjit Kumar Das appearing for the Petitioners has submitted that the appointments of the Petitioners have been made by the Selection Committee constituted for the said purpose and with the approval of the Director. In this regard he referred to the very appointment letter in which it is mentioned that the appointments have been made under the direction of the Director and the said appointment letters were forwarded to him for his final approval.

On the other hand, Mr. Warish, learned Standing Counsel appearing for the State submitted that this case stands on different footing. He submitted that in this ease appointments have been made by the Incharge Assistant Director who was not authorised for making such appointments and that too beyond the sanctioned posts. Further, learned Standing Counsel submitted that several such illegal appointments have been made in different employment Exchanges which are being enquired into by taking appropriate action against such illegally appointed persons as well as against the person who had made such illegal appointments. In this regard he referred to the statement made in paragraph 27 of the counter affidavit in which it is stated that "...a detailed inquiry is going on with regard to the illegal appointments made by the unauthorised persons and suitable action would be taken against such illegally appointed persons who have made such illegal appointments". In reply, Mr. Das submitted that in fact, by passing of the impugned order the authorities have acted without application of mind inasmuch as the appointments have been sought to be cancelled even when the result of the detailed enquiry is yet to come.

After hearing learned Counsel for the Petitioners and the learned Counsel appearing for the State in all the three writ applications and from the facts of these cases I find that the detailed enquiry in the matter was still going on when the impugned order was passed.

Further, the statements made by the Petitioners in all the three writ applications that prior to the issuance of the impugned order no enquiry was made by the Respondents nor any show cause notice was given to the Petitioners nor any other persons whose names have been shown in the impugned order, have not been denied in the counter affidavit.

Mr. Warish, learned Standing Counsel ventured to submit that it is well settled that where the appointments are made in an illegal manner and without following the rules and regulations and beyond the sanctioned strength, the authorities are not obliged to give any show cause notice before terminating/cancelling such appointments.

There cannot be any dispute to the preposition which has been contended by Mr. Warish but, in the peculiar facts and circumstances of the cases, from bare perusal whereof it is apparent that the impugned order suffers from non-application of mind as also that it is difficult to completely ignore the materials produced by the Petitioners in support of the fact that their appointments were made against the vacancies existing in the respective offices of the Employment Exchanges. I am of the view that the Respondents authorities should have given an opportunity to the Petitioners to explain their cases before cancelling their appointments. As that has not been done, the impugned order cannot be sustained and it is, accordingly, quashed.

However, as the impugned order has been quashed on technical ground, the matters regarding the payment of salary to the Petitioners shall depend on the result of the enquiry which the Respondents are directed to conclude by a reasoned order within a period of four months from the date of receipt/production of a copy of the judgment/order after giving show cause notice to the Petitioners. Respondent No. 2 is further directed to place all the materials on the record as regards the total number of sanctioned strength of Clerks in the Directorate as well as the appointments made thereon as claimed in the counter affidavit. These facts should also form part of the enquiry being held by the Respondents.

In the result, these applications are allowed with the aforementioned directions.