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Judgment
Heard Mr. Deepak Kumar Prasad, the learned counsel appearing on behalf of the petitioner and Mr. Rohan Kashyap, the learned counsel for the
respondent State.
This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due
to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been
heard.
The petitioner has preferred this writ petition for quashing the order dated 23.04.2019 contained in Annexure-17 whereby the claim of the petitioner
for confirmation of services has been rejected. A prayer is also made for direction to confirm the services of the petitioner with all consequential
benefits.
The petitioner has earlier moved before this Court in W.P.(S) No.3444 of 2018 which was disposed of with a direction to the respondents to consider
the case of the petitioner and pass the reasoned order. Pursuant thereto, the reasoned order has been passed as contained in Annexure-17 and that is
why the writ petition has been filed.
The petitioner was appointed as Stenographer in the Regional Dairy Development Office, Ranchi, vide order dated 29.07.1990 on ad-hoc basis.
Subsequently, the appointment was extended for three months by order dated 13.10.1990 and time to time it was extended by the office order
contained in Annexure-1 series. By order dated 18.12.1993, the Director, Dairy Development Directorate, Bihar, Patna directed to the Regional Joint
Director, Dairy Development, South Bihar to make appointment of the candidates due process on sanctioned vacant posts. Pursuant thereto, the
selection committee was constituted and after deliberation the committee has recommended the name of the petitioner along with others for the post
of Typist-clerk vide selection committee proceeding dated 28.02.1994 as contained in Annexure-3. The petitioner has also cleared examination of 1st
and 2nd papers prescribed for Mufsil office in view of Memo No.911(2) dated 23.07.2011. The pay-scale of the petitioner has been fixed for 5th, 6th
and 7th pay revision. In view of the bifurcation of the Stage of Bihar the petitioner's services have been allotted to the State of Jharkhand contained in
Annexure-7 series. The petitioner's GPF has also been deducted and the service-book of the petitioner has also been opened. The seniority-list dated
14.02.1994 has been prepared whereby the name of the petitioner figured at serial no.76. The petitioner is still working and presently he is working as
Head-clerk in the office of the Dairy Development. The persons who were appointed along with the petitioner and who have been allotted the State of
Bihar namely Nobal Kachhap, Prabhat Kumar Sinha and Budhdeo Asur their services were confirmed by the order dater dated 27.06.2011 and order
dated 25.07.2013 contained in Annexure-13 and 13/1 respectively by the State of Bihar.
Mr. Deepak Kumar Prasad, the learned counsel appearing for the petitioner submits that the petitioner has worked for almost 35 years as regular
employee. The petitioner's pay scale has also been fixed in view of different pay revisions, the GPF has also been started to be deducted, the similarly
situated persons appointed along with the petitioner have been confirmed by the State of Bihar and the committee has recommended for such
appointment and thereafter the petitioner has been appointed and is still working. He submits that it will be very harsh if after serving for such a long
period, the services of the petitioner will not be confirmed by the State of Jharkhand.
The learned counsel appearing for the respondent State submits that pursuant to the earlier order of this Court, the representation of the petitioner has
been considered and appropriate order has been passed. He submits that the petitioner was not appointed by the appointing authority and was not
approved by the competent authority and that is why the prayer of the petitioner has been rejected. To buttress his argument, the learned counsel for
the respondent State has relied on the case in "" Union of India v. Raghuwar Pal Singh"" reported in (2018) 15 SCC 463. Paragraph nos. 19 and 20 of
the said judgment are quoted hereinbelow:
We shall now consider the efficacy of the reason so recorded in the office order. The recruitment procedure in relation to the post of Veterinary
Compounder is governed by the statutory rules titled Central Cattle Breeding Farms (Class III and Class IV Posts) Recruitment Rules, 1969, as
amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the
appointment letter could be issued only by an authorised officer and after grant of approval by the competent authority.
Nowhere in the original application filed by the respondent, it has been asserted that such prior approval is not the quintessence for issuing a letter of
appointment.
For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the
authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case
has been made out in the original application that due approval was granted by the competent authority before issuance of the letter of appointment to
the respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the respondent. In such a
case, the next logical issue that arises for consideration is: whether the appointment letter issued to the respondent, would be a case of nullity or a
mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non-grant of opportunity may not
vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the
Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge
would, therefore, suffer from the vice of lack of authority and nullity in law.
On such arguments of the learned counsel appearing on behalf of the parties, the Court has gone through the materials on record. By way of
Annexure-3 the committee constituted for the appointment of the petitioner and the other persons recommended the name of the petitioner for
appointment. The persons appointed along with the petitioner their services have been confirmed by the State of Bihar as contained in Annexure-13
and 13/1. The petitioner has worked for almost 35 years and at this stage, the rejection on the ground taken by the respondent State does not sound
good and particularly considering this aspect of the matter that the similarly situated persons have been confirmed by the State of Bihar. Had the
services the petitioner was not in accordance with the rules, there was no occasion to open the service book of the petitioner, to allow different pay
revisions and to start deducting the GPF amount. It was incumbent upon the respondents either to regularize or terminate the service of the petitioner,
however, it has not been done and the services of the petitioner has been taken by the State of Jharkhand at the time of transfer of the cadre also and
no objection has been raised by the State of Jharkhand. The services of the petitioner has been extended from time to time and there is no limit of
confirmation and if the State is not passing the appropriate order for confirmation it would be an implied confirmation as held by the Hon'ble Supreme
Court in the case of "" M.K. Agarwal v. Gurgaon Gramin Bank and Ors."" reported in AIR 1988 SC 28.6 The case of ""Union of India v. Raghuwar Pal
Singh"" was on different footing and that was travelled up to the Supreme Court and the order of termination was considered by the Tribunal. The
discrimination point was not there in that matter which has been considered by the Hon'ble Supreme Court. The facts of the present case is different.
Thus, that order of Hon'ble Supreme Court is not helping the respondent State. The Constitution Bench in the case of D""irect Recruit Class II Engg.
Officers' Assn. v. State of Maharashtra,"" reported in (1990) 2 SCC 715 [para.47]. The paragraph no.47 of the said judgment is quoted hereinbelow:
To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to
the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the
officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till
the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules
are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In
case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the
quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the
procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted
in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such
relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the
executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the
single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than
scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With respect to Writ Petition No. 1327 of
1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule
of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave
petitions which are accordingly dismissed. There will be, however, no order as to costs.
The case of the petitioner is covered under the direction of the Constitution Bench [para 47-B], on the ground of equity if the relief is not granted to
the petitioner, the petitioner will suffer a lot. In that view of the matter, there was not only the case of the petitioner having a legitimate expectation
that his services will be considered for regularization by the competent authority but also the case where the services rules were made applicable to
the petitioner. The petitioner is still continuing in the State Department.
As a cumulative effect of the above discussions, the impugned order cannot sustain in the eye of law and accordingly, the impugned order dated
23.04.2019 is quashed and the respondents are directed to confirm the services of the petitioner as has been done in the case of the persons who have
been appointed alongwith the petitioner as contained in Annexure-13 and 13/1 by the State of Bihar. The petitioner shall be entitled for consequential
benefits.
The writ petition [W.P.(S) No. 981 of 2020] is allowed and disposed of.