Patna High Court
The State Of Bihar And Ors. Etc. Etc. vs Purendra Sulan Kit And Ors. Etc. Etc. on 26 June, 2006
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
JUDGMENT
1. This judgment and order is to govern approximately 819 Letters Patent Appeals and Writ Petitions which have been heard as analogous cases because the concerned employees in all these oases whether they are impleaded as petitioners or respondents belonged to cadre of Class III or Class IV employees under the Health Department, Government of Bihar. The services of these employees have been terminated on alleged illegalities/ irregularities in their appointment.
2. On behalf of the affected employees and on behalf of the State arguments stretching over several dates have been advanced covering important issues of law such as when an appointment may be treated as illegal or when it should be termed only as irregular capable of being regularised by the State on relevant considerations.
3. According to the case of the affected employees, they have been appointed on sanctioned vacant posts, and, they are qualified persons, to hold respective posts in Class III and Class IV service in the Health Department. It is, further, contented that most of them have been regularly appointed and all of them have been paid salary, increment, and other service benefits, including, housing facility, medical reimbursement, etc. They have been, also, promoted and transferred from time to time.
4. Some of them have also been retired by now and for a long spell of more than almost two decades in most of the cases no grievance or complaint came to be made or no enquiry came to be undertaken against them and, therefore, their termination without following proper procedure or observing the principle of natural justice cannot be sustained.
5. The submissions also covered the issue of equity on basis whereof it was submitted on behalf of the affected employees that since most of them have rendered more than 10 years of service before they were removed, they should have been regularised and retained on humanitarian grounds including equity in their favour. It was also highlighted and submitted on behalf of the employees that the State has accepted in its submissions that approximately 40 thousand Class III and Class IV posts are vacant throughout the State under the Health Department of the State Government alone. Hence, it has been submitted that not only equity but even the interest of the Department warrants reconsideration of cases of the affected employees by reappraising as to whether their appointments are actually illegal or only Irregular and fit to be regularised.
6. On the other hand, on behalf of the State it was submitted and argued that the affected employees have been terminated from service because in most of the cases, the entry was through back-door methods in violation of requirements of Articles 14 and 16 of the Constitution of India; in many cases, the entry was allegedly through forged and fabricated letters of appointment or through transfer orders without actual appointment and in some cases the appointments were without availability of sanctioned posts made by the authorities not competent to appoint.
7. After marathon arguments, fortunately the differences on issues of law were greatly reconciled because the parties by consensus agreed that in view of overall factual profile of these cases the recent judgment of the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., reported in 2006 (2) PLJR (SC) 363 shall govern the cases of the affected employees and the legal issues shall be treated to have been settled by the law declared by the Constitution Bench in the aforesaid judgment. In view of such consensus on the part of lawyers appearing for the affected employees and the counsel for the State, the task of deciding these Letters Patent Appeals and Writ Petitions has become considerably easy because the learned counsels for the affected employees accepted that the Letters Patent Appeals as well as the Writ Petitions be disposed of with a direction to the Government of Bihar in the Department of Health to scrutinize the cases of the affected employees afresh on the basis of relevant materials and in view of law declared by the aforesaid Constitution Bench judgment so as to find out the cases of those affected employees which can be termed only as irregular appointments and not illegal appointments and then take steps to regularize the services of such irregularly appointed employees as a one time measure in accordance with the aforesaid judgment and particularly, in accordance with observations and directions given by the Apex Court in paragraph 44 of the said judgment.
8. It is useful to notice that in paragraph 44 of the said judgment the Apex Court has clarified the exceptional situation in which only irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts may be considered for regularisation if such employees have continued to work for ten years or more without intervention of orders of courts or of tribunals. The Apex Court explicitly directed the Union of India, the State Governments and their instrumentalities to take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for 10 years or more in duly sanctioned posts without cover of orders of courts or of tribunals. Along with such direction to the various Governments and their instrumentalities the Apex Court directed them to ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. This process has been directed to be set in motion within six months from the date of the judgment i.e. 10.4.2006.
9. On behalf of the State also it was accepted and agreed that the cases of al1 the affected employees shall be considered by the authorities of the Health Department in accordance with law laid down by the Constitution Bench of the Supreme Court in the case of Secretary State of Karnataka v. Uma Devi, noticed above, particularly, in the light of observations and directions in paragraph 44 of the said judgment. The State agreed to complete the exercise in respect of at least the affected employees impleaded before this Court within a reasonable period which has been accepted by the State to be six months from today. It is made clear that if the exercise is not completed within the period of six months on account of any reason, the State of Bihar in the Department of Health would be obliged to fills an application disclosing all the relevant reasons for seeking extension of the aforesaid time period.
10. In view of the discussion made above and on account of disposal of these matters on the basis of consensus, as noticed above, the prayers made in several Letters Patent Appeals for condonation of limitation are allowed and the delay in preferring the appeals is condoned. Rule in that matter is made absolute without any order as to costs.
11. All the Letters Patent Appeals whether preferred by the State or by affected employees and all the Writ Petitions preferred by the affected employees are hereby disposed of by this common judgment and order with a direction to the authorities of the Health Department, Government of Bihar to reconsider the cases of all the affected employees with a view to find out, on the basis of relevant facts and law as settled by the Constitution Bench in the ease of Secretary, State of Karnataka V. Uma Devi (supra) as to which of such affected employees are fit for regularisation in terms of that judgment, particularly in terms of paragraph 44 of the judgment. Such exercise should be completed within a period of six months from today. If for any good reason, the time period is required to be extended then the respondent State must file an application for that purpose and seek extension from this Court, Till the process is completed, the State of Bihar and its authorities shall maintain status quo in respect of services of the affected employees as existing on date. The status quo shall get revised by the orders that may be passed by the authorities in respect of affected employees as a result of the exercise to be undertaken by them and their final decision in the light of this judgment and order.
12. Before parting with this judgment and order, it is considered relevant to observe that recently a writ petition bearing CWJC No.3349 of 2000 (Yogendra Singh and Ors. v. the State of Bihar and Ors.) was disposed of by judgment dated 9.5.2000 rendered by one of us, Shiva Kirti Singh, J. in which reliance was placed upon the aforesaid Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka V. Uma Devi for directing the State Government to consider the cases of petitioners of that case for regularisation as a one time measure, if their cases meet the requirements laid down in the aforesaid judgment. As observed in that judgment, here also it is clarified that the authorities of Health Department, Government of Bihar while considering the cases of affected employees in these cases, may consider and take decision as per law in respect of similarly situated other employees of the Department, if any, and for that category of similar situated employees, the Department may Issue public notice etc. if it is so advised. But they must be conscious of the judgment of the Apex Court, as noticed above that the exercise of regularisation is only a one time measure for the whole Department and no such further exercise will be permissible after the one time measure is resorted to and completed within a reasonable period. Thereafter, the vacancies must be filled up as per requirement of the Department in regular manner as per direction of the Apex Court.
13. All the matters shall stand disposed of. There shall be no order as to costs.