IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1096 of 2011 In
Civil Writ Jurisdiction Case No. 5664 of 2003 With
Interlocutory Application No. 5083 of 2011 In
Letters Patent Appeal No.1096 of 2011 ====================================================== Laxmy Narayan Singh, Son of Sri Brij Mohan Singh, Resident of Village- Koshdihra, Post Office-Nabinagar, Police Station-Nabinagar, District- Aurangabad.
.... .... Petitioner/Appellant
1. The State of Bihar.
2. The Director, Secondary Education Department, Government of Bihar, Patna.
3. The Regional Deputy Director of Education, Magadh Division, Gaya.
4. The District Education Officer, Aurangabd.
5. The Incharge Headmistress, Rajkiyakrit Balika Uchch Vidyalaya, Nabinagar, District-Aurangabad.
.... .... Respondents/Respondents
====================================================== Appearance :
For the Appellant : Mr. Rajendra Pd. Singh, Senior Advocate For the Respondents : Mr. Arjun Prasad Singh, A.C. to S.C.-2 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE) 2 Patna High Court LPA No.1096 of 2011 (4) dt.10-08-2011
4. 10.08.2011 Interlocutory Application No. 5083 of 2011: Delay of 276 days occurred in filing the Letters Patent Appeal is condoned.
Interlocutory Application stands disposed of. Letters Patent Appeal No.1096 of 2011: This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 18 th August 2010 passed by the learned single Judge in above C.W.J.C. No. 5664 of 2003.
The matter at issue is the termination of service of the writ petitioner on 17th December 2002; his appointment being illegal. The learned single Judge has held that the appointment of the writ petitioner was rank illegal and that such service cannot be protected. In view of the said finding, the learned single Judge has dismissed the writ petition.
Feeling aggrieved, the writ petitioner has preferred the present Appeal.
Learned counsel Mr. Rajendra Prasad Singh has appeared for the appellant. He has submitted that whatever be the nature of his appointment the appellant having served continuously since 1993 and he having received the salary; his service cannot now be terminated. In support thereof he has relied upon the judgment of the Hon'ble Supreme Court in the matter of State of Karnataka v. M.L.Kesari, [(2010) 9 SCC 247], particularly paragraph 7 thereof.
It is evident that the appellant did not serve continuously for 10 years since his appointment in 1993. He, therefore, cannot get the benefit of the exception made out by the Hon'ble Supreme Court in the matter of Secretary, State of 3 Patna High Court LPA No.1096 of 2011 (4) dt.10-08-2011
Karnataka v. Uma Devi (3), [(2006) 4 SCC 1]. In view of the finding that the appointment of the appellant was rank illegal, his service cannot be protected in view of the aforesaid judgment in the matter Secretary, State of Karnataka v. Uma Devi (3) nor under the aforesaid judgment in the matter of State of Karnataka v. M.L.Kesari. No case for interference is made out. Appeal is dismissed in limine.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)