P.P. Bhatt, J. - (1.) HEARD the learned counsel for the parties. The petitioner, by way of filing this petition under Article 226 of the Constitution of India, has prayed for quashing the portion of the order as contained in Memo No. 2 dated 20.5.03 (Annexure -17) issued under the Signature of Regional Director, Animal Husbandry Department, Dumka, by which, the services of the petitioner is ordered to be terminated without giving any notice to show cause and an opportunity to file a show cause and of being heard and without following the rules and procedure when the petitioner has been working regularly to the post of Technical Assistant since 26.8.1988 I.e. for more than 15 years. It is further prayed that an appropriate direction may be issued to the respondent authorities to reinstate the petitioner on the post of technical assistant with consequential benefit.
(2.) IT is the case of the petitioner that the respondent - State of Bihar decided to appoint Technical Assistants under the provision of Frozen Semen Bank Scheme on ad hoc basis in the tribal region as per the decision as contained in letter No. 11397 dated 31.12.87 (Annexure -1 to the petition) empowering the Regional Director, Animal Husbandry Department for making temporary appointment till regular appointments are made. The State Government decided that the technical Assistant being a class -III post, 50% of the post are to be appointed by direct recruitment and rest 50% of the post shall be earmarked to be appointed by promotion to Class - IV employees working in the Animal Husbandry Department. That after issuance of letter No. 11397 dated 31.12.87, the Regional Director, Animal Husbandry Department, South Chhotanagpur at Ranchi constituted the Establishment Committee. It is also the case of the petitioner that his name was registered with the Employment Exchange and accordingly his name was forwarded to the office of the Regional Deputy Director who ask the petitioner to appear before the Interview Board. It is also submitted that the petitioner along with other persons, who appeared before the Interview Board found eligible were appointed by the office order as contained in Memo No. 2601 dated 28.6.88 (Annexure - 3 to the petition). Accordingly, the petitioner was appointed against the sanctioned vacant post of technical assistant purely on temporary basis and on completion of requisite training, he was posted at Dumka. Subsequent thereto, the petitioner had cleared the Hindi Noting Drafting Examination conducted by Bihar State Rajbhasha Department and petitioner was declared successful in the said examination and since then working continuously on the post of technical Assistant right from initial date of appointment. Thereafter, the Secretary, Animal Husbandry and Fisheries Department, Govt. of Bihar, Patna vide letter No. 2084 dated 16.4.96 directed to give information under what circumstances the Regional Director, Animal Husbandry, Dumka has made appointment to class -III post when the Department by letter Nos. 626 and 637 dated 28.10.92, and 28.10.91 respectively, had withdrawn the power of Regional Director for appointment of Class - III posts. By another letter No. 6147 dated 1.11.96 (annexure -5 to the petition), the Secretary of the Animal Husbandry Department directed the Director of Animal Husbandry Department, Bihar, Patna to take steps for termination of the services of such class III posts employees who have been appointed by the order of Regional Director, after 28.10.91 and 21.2.1992. It is further submitted by the petitioner that without issuance of any show cause notice, the services of the petitioner has been terminated on 20.5.2003 (Annexure -7 to the petition) along with other 29 employees, wherein the name of petitioner has been shown at Srl. No. 19. It is further the case of the petitioner that his case is similar to that of the petitioners of writ petition being CWJC Nos. 5533/98 and 5480/98. It is submitted that the High Court of Judicature at Patna after careful consideration of the facts and circumstances involved in these matters including the counter affidavit filed by the respondents passed the order setting aside the impugned order of termination and the respondent authorities were directed to reinstate the petitioners of the said petition on the said post. It is further submitted that being aggrieved and dissatisfied with the said order, the respondent -State preferred letters patent appeal being LPA No. 325/2000 before the Patna High Court, which was dismissed on the ground of delay and latches as well as on merit and the order of the Single Judge was confirmed by the Division Bench. It is further submitted by the learned counsel for the petitioner that while dismissing the LPA, the court dealt with the issue with regard to cut off date i.e. 29th October, 1991 which provides that the Regional Deputy Director had the jurisdiction to make appointment prior to 29th October, 1991 and, therefore, it was held by the Division Bench that there is nothing wrong in such appointments. Learned counsel for the petitioner by referring counter affidavit filed by the State and the order annexed with the said counter affidavit submitted that the order passed in those matters including the orders passed by the Hon'ble Apex Court arising out of the LPA, has no relevance as the appointment of the petitioner was done in the year 1988 and therefore, there was no need to pass the order of termination by the respondent authorities. However, along with other employees, who were recruited subsequent to the year 1991, the order of termination was also passed against the petitioner. Learned counsel for the petitioner by referring I.A. No. 1446 of 04 (annexure -19) pointed out that the respondent Regional Director certified that the petitioner has rendered his services from 5.8.88 to 31.5.2003 continuously. By referring the order passed by the Hon'ble Apex Court, it is also submitted that the advertisement given by respondent authorities was in respect of 25 posts against the reserved category and the respondent State did not notify any vacancy for the general category and, therefore, the question with regard to giving opportunity to the employees whose services were terminated by giving them age relaxation is also not available to the petitioner and the other similarly situated person belonging to general category. Of course, learned counsel for the petitioner submitted that the petitioner is not required to apply in pursuance to the advertisement, as the case of the petitioner is different than that of the cases of employees whose services were terminated, as they were recruited subsequent to the year 1991. However, the advertisement produced by the respondent State along with counter affidavit includes that no such opportunity is available to such employees, despite, direction issued by the Hon'ble Apex Court in this regard. As against this, Learned counsel appearing on behalf of State submitted that the petitioner was appointed unauthorizedly on the post of Technical Assistant, a State Cadre Post of Class -III Category during 1990 -91 by the then Regional Director, Santhal Pargana Area, Dumka. It is further stated that as the post is a State Cadre, the power of appointment on the post is exclusively vested with the Director, Animal Husbandry Department only. It is further submitted that with a view to have speedy completion of the project, the Director, Animal Husbandry was directed to make appointment on the post on purely temporary and ad hoc basis till regular appointments are made vide letter No. 113 dated 31st December, 1987. It is further submitted that the Regional Directors encroached upon the jurisdiction of the Director and made a large number of appointments exceeding the sanctioned strength flouting all the norms and rules of appointment. When this fact came into light, the Secretary of the Department directed the respondent authorities concerned to terminate the services of those employees recruited by the Regional Directors. Accordingly, the services of the petitioner was terminated as it was illegal appointment. Learned counsel for the State has also referred to and relied upon the various communication annexed to the counter affidavit as well as the order passed in LPA Nos. 243, 466, 480, 539, 467, 572 and 588 of 2001 as well as the order passed by the Hon'ble Apex Court in Civil Appeal Nos. 5342, 5343, 5344, 5345, 5346 and 5376 of 2003 arising out of the above referred Letters patent appeals and submitted that the Hon'ble Supreme Court, after careful consideration of the facts and circumstances involved in these matters, directed the respondent State to constitute a Selection Committee as per the existing Rules and to start the recruitment process. The Hon'ble Supreme Court has also directed to give relaxation of age and weightage over outsiders as directed by the High Court to the candidates whose services were terminated. Therefore, According to the learned counsel appearing for the State, the petitioner is not entitled to claim as a matter of right that he should be reinstate in his services.
(3.) CONSIDERING the aforesaid rival submissions advanced by the learned counsel for the parties and from perusal of the materials facts on record, it appears that the petitioner was appointed on purely temporary and ad hoc basis by order dated 28.6.1988 against the sanctioned vacant post of Technical Assistant. It further appears that the appointments were done by the Regional Director of the Animal Husbandry Department in pursuance to the decision given to him vide letter No. 113 dated 31.12.1987, which empowers the Regional Director, Animal Husbandry Department for making temporary appointments till the regular appointments are made. It also appears that the Regional Director, Animal Husbandry Department constituted a committee for making appointment on the post of technical assistants and the mode of recruitment was also prescribed that the 50% of the posts shall be made by direct recruit and rest 50% of the posts shall be made by way of promotion amongst the employees of Class -IV in the Department concerned. It also appears that the name of the petitioner was forwarded by the employment exchange and after due process of selection; the appointment of the petitioner was made on the post of Technical Assistant on purely temporary and ad hoc basis against the vacant sanctioned post. It also appears that subsequent thereto, the State Government decided to cancel the appointments which are taken place subsequent to 1991 and accordingly, it was communicated to the all concerned Officers throughout the State. As it was noticed that certain irregular and illegal appointments have been made at local level in pursuance to the directions as contained in letter dated 31.12.87, the respondent -State issued order of termination of about 30 employees recruited directly and about 42 employees were reverted to Class -IV employees. From perusal of record, it transpires that except three employees, all others were recruited in the year 1990 and onwards and therefore in view of administrative instructions received from the State - Authority, the services of those employees required to be terminated. But, it appears that along with those employees, the services of the petitioner, whose appointment was made in the year 1988 and who completed continuously about 14 years terminated, for which, no satisfactory explanation is rendered by the State. It also appears that in the year 1998, similarly situated employees, whose services were also terminated by the State, preferred CWJC Nos. 5480/1998 and 5533/1998. It also appears that in those cases also, the respondent State has also taken the stand which has been taken in the present case but after careful consideration of the facts and circumstances involved in those case, the Patna High Court set aside the order of termination and respondent authorities concerned were directed to reinstate the services of those employees. Being aggrieved and dissatisfied with the said order, the State preferred letters patent appeal being LPA No. 325/2000 and the said LPA was dismissed by the Court on the ground of delay and latches as well as on merit also. From perusal of order passed in LPA No. 325/2000, it appears that the Division Bench, after careful consideration of the material facts, which is relevant for the purpose of deciding the present case, found no reason to entertain the LPA and dismissed the same. The Division Bench while dismissing the LPA observed as under; A part from the aforesaid, even there is reliance no merit in this appeal. Because from bare reference to the impugned order, it would appear that prior to 29th of October, 1991, the Regional Deputy Director had the jurisdiction to make appointments. Therefore, there is nothing wrong in such an appointment. Taking into consideration the facts stated above, we dismiss both the limitation petition as well as the appeal. The learned counsel for the State is not in a position to show anything from the materials on record that the case of the present petitioner is different than that of the cases of the petitioners of above referred cases. From perusal of orders passed in LPA Nos. 243, 466, 480, 539, 467, 572 and 588 of 2001, it appears that the Division Bench of this Court has dismissed the appeals by observing that in the matter of fresh selection, the appellants shall be accorded full consideration irrespective of the fact whether they have crossed the age bar and preference shall be given to them while making fresh selection keeping in view the fact that he had worked in past. Being aggrieved by and dissatisfied with the said order, the original petitioners herein preferred Civil Appeal Nos. 5342, 5343, 5344, 5345, 5346 and 5376 of 2003 and while disposing of all the appeals, the Hon'ble Apex Court passed the following orders; We make it clear that ad hoc appointees have no right to claim regularization in the service but because of erroneous procedure adopted by the concerned authority in appointing such persons and thereafter continuing them for years together, on occasions, relief is required to be molded in favour of such employees. In the present case, undisputed, the appellants were appointed as early as in the year 1988 -89 and have continued to work on the posts for years together. Further considering the fact that appointments of the appellants were made on the basis of orders passed by the State Government and that too on recommendation by the Selection Board and after taking into consideration the requirement of the project, which is still continuing. We accept the submission made by the learned senior counsel for the appellants. In this view of the matter, we direct the State of Jharkhand to consider at the earliest for recruiting Technical Assistant for the Semen Bank Project and to fill up the existing vacancies within a period of three months from today. For that purpose the respondent - State is directed to constitute a Selection Committee as per the existing Rules within a period of three months from today. (II) The appellants whose services are terminated may apply to the secretary of the Animal Husbandry Department within a period of one month for being re -appointed and for regularization of their services. The Committee shall consider the eligibility, suitability, past record as well as the educational qualifications of the appellants as per the rules as on today; (III) The Committee shall give relaxation of age and weightage over outsiders as directed by the High Court. However, if the appellants are found unsuitable for some reasons, it would be open to the Committee to reject their applications. Appropriate authority shall issue orders for appointment after considering the roster and the merit list, on available vacancies. The appeals stand disposed of accordingly. There shall be no order as to costs. We, however, make it clear that this case shall not be treated as precedent as we have decided it purely on the facts and in the peculiar circumstances of this case. From perusal of said order, it appears that the Hon'ble Apex Court made it clear that that ad hoc appointees have no right to claim regularization in the service but because of erroneous procedure adopted by the concerned authority in appointing such persons and thereafter continuing them for years together, on occasions, relief is required to be molded in favour of such employees. In the present case, the petitioner was appointed as back as in the year 1988 and had continuously worked for more than 14 years together. It further appears that the appointments of the applicant was made by the order of State -Government and that too on the recommendation of the Selection Board and after taking into consideration the requirement of the project, which is still continuing. The Hon'ble Apex Court issued certain direction as contained in above referred order dated 23rd July, 2003. Thus in view of the above, the writ petition and the letters patent appeals referred by the learned counsel for the State were in respect of the employees, whose appointments were made in the year 1991 and onwards. The stand taken by the respondent State in respect of the present petitioner can not be accepted by this Court and the orders of termination is required to be quashed and set aside. From perusal of order dated 23.7.2003 (Annexure -G to the counter affidavit), passed by the Hon'ble Apex Court, it became clear that the issue before the Hon'ble Apex Court was also in respect of the employees, whose recruitments were made in the year 1988 -89 and, therefore the direction given by the Hon'ble Apex Court is required to be followed by the respondent State in respect of such employees.;