VIKRAMADITYA PRASAD, J. - (1.) THIS writ application has been filed for quashing Annexures -9 and 15 annexed to the writ application. Annexure -9 is a direction issued by the Secretary, Public Health Engineering Department, Government of Bihar, Patna, to all the Regional Chief Engineers and Superintending Engineers of P.H.E.D. Department directing them to terminate the services of those persons, who were appointed after 1.1.1988 irregularly and after inviting show cause from such irregular appointed persons the decision with regard to the termination of their service be taken. This letter is advisory in nature. Then Annexure -15 is a letter issued by the Superintending Engineer, P.H.E.D., department on 8.4.1999. whereby and whereunder in compliance of the order of the Hon'ble High Court (case no. not given) the services of the petitioners were terminated on the ground that they were appointed after 1.1.1988. However, by that order, in the light of the Hon'ble High Court order, the salary of the month pf May and June 1998 was directed to be paid.
(2.) THE petitioners were appointed on 26.5.1988 and 13.7.1988 respectively for three months' on purely provisional basis. Their appointments were purely temporary and was liable to be terminated without any notice, vide Annexures -1 and 2. It is also mentioned in the aforesaid letter of appointment Annexure -1, that Durganand Jha was an outsider and he was appointed against vacant post of correspondence clerk in P.H.E.D. Tenughat Division, and the other petitioner Surendra Thakur was also an outsider and he was appointed against a vacant post in the scale of Rs. 535 -705 in P.H.E.D. Department in Petarwar Sub -Division. Then the Government issued a notification on 4.4.1989 by which there was completely. a ban on the irregular appointment in the cadre of Class III and Class IV and it was directed that the appointments of the persons, which were made after 1.1.1988 be cancelled. Consequently, the services of the petitioners were terminated by Annexure -3. Being aggrieved by that order the petitioners filed C.W.J.C. No. 1682 of 1989 (R), which was heard but ultimately that writ was withdralM1, vide Annexure -4. Then an order was issued by Government vide Annexure 5 after considering the order of the High Court and also the representation of the employees that the persons who were appointed against the sanctioned post and who had been retrenched, they should be taken back in service. It was also directed that the persons who were taken back will be treated in their service from the date of new joining and this was applicable in the case of those employees who had been removed after 1.1.1988. Thereafter it appears that the Registrar of the Public Health and Engineering Department made an enquiry (vide Annexure 6) from the Executive Engineer, Public Health and Engineering Department whether or not, the petitioners who were retrenched employees had joined or not and if so then they should be apprised with the date of their joining. Consequent to that letter, the Executive Engineer, Public Health Engineering Department, Tenughat vide Annexure 7 informed that the petitioner No. 2 Surendra Thakur has joined as Work Sarkar on 29.3.1990 at Public Health and Engineering Department, Petarvar Sub Division and Durganand Jha, petitioner No. 1 had joined on 12.2.1990 at Tenughat as Correspondence Clerk and the information thereof has been given to the Superintending Engineer, Dhanbad but that has not been returned back after approval. Then it transpires that the Superintending Engineer, Dhanbad vide Annexure 8 sent a letter to the Regional Chief Engineer, Ranchi informing him that against eight posts of Dispatch Clerks, five persons have been adjusted with regard to three posts in which the petitioners' name not included, it was stated that they should be adjusted in other circles. Through Annexure -8/A, the joining of Durganand Jha on the post of Patracharclerk, P.H.E.D., Tenughat was accepted by the Superintending Engineer. In this letter there is no mention of acceptance of joining of second petitioner, namely, Surendra Thakur. Then in compliance of the order contained in Annexure -9, (supra) which was received on 3.1.1997, a show cause notice was issued to the petitioner no. 1 Durganand Jha as to why, though he has joined on 12.2.1990 in the office of the Superintending Engineer, but his appointment was made without following the procedure and in irregular way so, he may file his show cause within a month and if his reply was found not satisfactory his services would be terminated vide Annexure -10. Then it transpires that. a similar letter Annexure10/A was issued to the second petitioner also. Then it transpires that on 22.3.1997 another letter Annexure -11 was issued by the Chief Engineer -cum -Special Secretary, Department of P.H.E.D. that though it was directed that the persons who had been appointed irregularly, their services be terminated after receiving show cause and after making enquiry but it has come to the knowledge of the Government that in the case of those employees, who were employed after following the legal procedure, on compassionate ground, and under the order of the Hon'ble High Court, their salaries are being withheld, which was unjustified. Therefore, a direction was made to act according to the direction made above. Then a letter Annexure -12 was issued that those persons, who were appointed either on regular basis, on compassionate ground and/or under the order of the High Court, should be retained in their service. Then another letter was issued on 12.6.1997 in which a number of the several writ petitions were referred to, in those writ petitions which the order contained in letter no. 14 dated 3.1.1997 was challenged and as per the decisions of the Hon'ble court dated 20.5.1997 the status quo as on 20.5.1997 was directed to be maintained along with that letter the order of the Hon'ble High Court was also enclosed. Then again one letter Annexure -14 was issued on 4.6.1998 by the Vigilance Investigation Bureau asking for an information in compliance of the order of the Hon'ble High Court to send the names of the employees along with the names of the appointing authority and his address right from the year 1975 till to date and, thereafter, by the impugned order dated 8.4.1998 the services of the petitioners were terminated. The respondents appeared and filed a counter affidavit. According to them the petitioners has suppressed some material facts and consequently the writ was fit to be dismissed in limine. It was averred that the petitioners were appointed in unauthorized manner against non -existent vacancies and therefore, there is no question of regularization of their services nor they can be given any protection from future termination and Annexure -15 was passed in pursuance to the order passed by this Hon'ble Court as well as the decision taken by the Government and therefore, it is legal and valid. It is seriously contended that the petitioners were appointed against sanctioned post or by the competent person. It was further averred in reply to paragraph -23 of the writ petition, wherein it has been stated that several persons, who have been appointed after the petitioners on Class III and Class IV post they are still continuing on the aforesaid posts, that only four staffs are working in Tenughat Division and out of them one Dwarika Kumar Nayak, was working as a jeep driver and he has been working on daily basis since 6.3.1985 to 25.1.1986 and from 12.7.1987 till date and three persons who were appointed pursuant to the letter of the District Commissioner, Giridih, Vide Annexures -D, E and F annexed to the counter affidavit and those staffs were appointed from the panel of list of Umidwar prepared by the Selection Committee after following rules of the reservation and following all the procedure of appointment.
(3.) NOTHING has been shown by the petitioner that their appointment was made adopting the procedure. Any appointment made without observing procedure, is not a legal appointment. The petitioners have cited certain example of Ummidwar who were ultimately appointed. It is found that such Ummidwar were appointed on the recommendation of the District Establishment Committee. Similar to those is not the case of the petitioners. The Registrar had asked for an information whether or not the petitioners had joined and the information was given accordingly. But even in face of this the appointment does not become legal. The very appointment letter shows that they were appointed for three months and purely on provisional basis. Therefore, as per this appointment letter also the appointment comes to an end. The mere working against a sanctioned post in absence of any appointment according to procedure by a competent authority does not render the appointment legal.;