SURENDRA PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) We have heard counsel for the parties at length, and after hearing them we are disposing of this writ petition at the admission state itself. The respondents have not filed counter-affidavit and, therefore, we shall proceed on the basis of the fact as stated in the writ petition and as apparent from Annexures annexed therewith.

(2.) This is yet another case where appointments made on 14th May, 1987 and thereafter have been cancelled by order dated 18th June, 1989 (Annexure-4). The petitioner has therefore, challenged the validity and legality of Annexure-4. We have come across large number of such cases where the Government finding no alternative has cancelled appointments made by the appointing authority, obviously because the appointments were illegal and unathorised. It is indeed unfortunate that in the last 10 or 15 years, rarely have appointments been made in accordance with rules, if any, or in accordance with the Circulars, Notifications etc. issued by the State of Bihar laying down the procedure for making appointments. In different Departments, instructions, Circulars etc. have been issued from time to time wherein, in the absence of rulers, fair procedure for making appointment has been laid down. In most of those instructions, notifications etc. the Government has directed the appointing authority to advertise the post and/or to call for names from the Employment Exchange. A selection committee or establishment committee has been constituted to consider the relative merits of the applicants, and of those persons whose names or sponsored by the Employment Exchance. Such a procedure obviously is calculated to give an equal opportunity to all intending candidates having regard to the quality of opportunity doctoribe enshrinted in Article 16 of the Constitution of India. The minimum requirement of Article 16 of the Constitution is that citizens must have an opportunity to apply for jobs in public services. Equality of opportunity is achieved by subjecting all candidates to a process of selection whereby their relative merit is determined. Subject to the laws relating to the reservation, appointments must be made on the basis of merit. Unfortunately the state of affairs as is prevalent in the State is most depressing. The rules, instructions etc. are never followed by the appointing authority. In the matter of making appointment even the constitutional mandate is ignored. Article 16 of the Constitution is observed only in its breach. The devise adopted by the adopting authority is ingenious. Not only where a temporary need exists, but even where there is a substansive vacancy, the appointing authority without advertising the post and without considering the relative merit of the candidates who may apply, chooses to appoint person on personal approach. To give it a colour of legality, appointments are initially made on daily wages basis. The tenure is precarious, whether it is described as purely temporary, ad hoc or on daily wages basis. Persons so appointed are continued for sometime and thereafter they are sought to be granted a regular scale of pay, and very often a daily wages employee is thereafter described as purely temporary employee or ad hoc employee. The appointee continues to work for two or three years, and thereafter a recommendation is made for his regularisation or absorption in service. Very often the game succeeds and appointments are made under the State without advertising the posts and without judging the relative merit of the candidates who may apply. This is in complete defiance of the instruction/circular issued by the State from time to time and obviously in breach of the principles enshrined in Article 16 of the Constitution of India. The question is, when such illegal appointments are terminated, should the court come to the aid of such appointee who has produced the appointment by illegal means. I may only notice the observation of the Supreme Court in the case of Delhi Development Horticulture Employee Union v. Devhi Administration, Delhi and others, AIR 1992 SC 789, wherein it was observed that such appointments are given and taken on monetary considerations. The appointing authority obviously acts on ulterior considerations in appointing such a person. The misfortune is that when that appointing authority is transferred the successor follows the same pattern, and the game has to be played over again.

(3.) The facts of this ease also demonstrate this ingenious modus operandi. The petitioner himself states that in the year 1984 permanent post of clerk fell vacant in the Accounts Division of the Adult Education Department, Government of Bihar, Patna. The petitioner was an applicant who was interviewed by the competent authority and was appointed as a clerk on daily wages with effect from 25-4-1984. Annexure-1 is his letter of appointment which is dated 7th December, 1984, but the appointment is with effect from an earlier date, namely, 25-4-1984. This is quite unusual, but what is noticeable in the letter of appointment is the statement that the petitioner will have no claim for regular appointment on the basis of such appointment, and further his service can be terminaled at any time without notice to the petitioner. The appointing authority is the Director, Adult Education and Informal Education, Government of Bihar, Patna. It is not the case of the petitioner that the permanent posts which fell vacant were advertised and that intending candidates were asked to apply. It is also not stated that the petitioner was interviewed by any establishment Committee or the selection committee. One could understand the appointment of the petitioner on daily wage basis pending regular appointment, because the exigencies of the situation may compel the appointing authority to make appointment on daily wage basis till regular appointments are made, particularly when the post was a permanent post. That was never done, and according to the petitioner his name was recommended for absorption on temporary and ad hoc basis on daily wages. Annexure-2 is another letter of appointment dated 4th January, 1986 whereby the petitioner, a daily wager was appointed on temporary and ad hoc basis on the post of Clerk-cum-Typist in the scale of Rs. 580-860/- and posted to work under the Adult Education Scheme, Gaya. It will appear from Annexure-2 that the petitioner who had been working on daily wage basis was appointed on temporary and ad hoc basis with a scale of pay, The letter of appointment (Annexure-2) again mentions that his services could be terminated at any time without notice to the petitioner.