The Patna High Court, while disposing of a petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ in the nature of Certiorari to quash an order, dated 29th of January, 2019, passed by the Bihar State Pharmacy Council, whereby the Petitioner was dismissed from the post of Clerk of the Council, held that after the petitioner’s regularization, his appointment could not be challenged subsequently on the ground that it was made de hors the rules of appointment.
Brief Facts:
By a letter, dated 15th January 2004, the Petitioner was informed that on the basis of the recommendation of the candidates for interview, he was selected to join the Council on the post of a Clerk. It was also directed that he would be on probation on the said post for a period of 45 days. After the expiry of the probation period, Petitioner's appointment was again extended. Later. The Petitioner was appointed on a regular basis on the unreserved post of Assistant Clerk of the Council. On 25 January 2018, the then Registrar issued an order dismissing the Petitioner from the post of the Clerk of the Council on the ground that he was not appointed to the said post following the rules of appointment.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that all documents relating to the publication of advertisement for appointment to the post of a Clerk in the Council are well within the custody of the Council and those documents sufficiently prove that the Petitioner is a regular employee of the Council. However, while passing the ex parte order against the Petitioner, the Respondents did not consider any such documents.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the Petitioner was not subjected to any process of recruitment. He has failed to produce any document to show that he was appointed against the sanctioned vacant post.
Observations of the Court:
The Court noted that when a person had been discharging his duties as an employee of the Council and he was paid from the public exchequer, the Court is entitled to draw a presumption in favor of the continuity of Petitioner’s service.
The Court observed that after the petitioner’s regularization, his appointment could not be challenged subsequently on the ground that it was made de hors the rules of appointment. The Respondents cannot demand that the Petitioner prove the legality and validity of his appointment. It is the duty of the Respondents to prove that the appointment of the Petitioner was illegal and forged. It is the duty of the Respondents to prove that the appointment of the Petitioner was illegal and forged. The Respondents have failed to prove the same.
The decision of the Court:
The Patna High Court, disposing of the petition, held that the impugned order is set aside and the matter is remitted back to the Respondents for initiating a full-fledged departmental inquiry.
Case Title: Ravi Prakash v The State of Bihar & Ors.
Coram: Hon’ble Justice Bibek Chaudhuri
Case No.: Civil Writ Jurisdiction Case No.8066 of 2023
Advocate for the Petitioner: Ms. Shilpi Keshri
Advocate for the Respondents: Mr. Binod Kr. Yadav
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