Patna High Court - Orders
Upendra Kumar Singh vs The State Of Bihar & Ors on 1 September, 2014
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18912 of 2011
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1. Ajay Kumar Son Of Late Ramshray Prasad Singh Resident Of
Village-Parseni, Police Station-Barbigha, District-Sheikhpura.
.... .... Petitioner
Versus
1. The State Of Bihar through Principal Secretary, Department Of
Health, Govt. of Bihar, Patna.
2. Director-In-Chief, Health Services, Govt. of Bihar, Patna.
3. Regional Deputy Director, Health Services, Magadh Division, Gaya.
4. Civil-Surgeon-Cum-Chief Medical Officer, Nawada.
5. Incharge Medical Officer, Additional Primary Health Centre,
Kadirganj, Nawada.
.... .... Respondents
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with
Civil Writ Jurisdiction Case No.20511 of 2011
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1. Upendra Kumar Singh Son Of Sri Pasupati Nath Singh Resident Of
Village - Madhurapur, Police Station- Teghra, District- Begusarai
.... .... Petitioner
Versus
1. The State Of Bihar through Principal Secretary, Department Of
Health, Govt. Of Bihar, Patna
2. Director-In-Chief, Health Services, Govt. Of Bihar, Patna
3. Deputy Director (Family Welfare) Health Services, Bihar, Patna
4. Civil Surgeon-Cum-Chief Medical Officer, Begusarai
5. Incharge Medical Officer, Primary Health Centre, Barauni, District
Begusarai
.... .... Respondents
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with
Civil Writ Jurisdiction Case No.17366 of 2011
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1. Madhusudan Soi @ Madhusoodan Soy Son Of Late Somar Prasad
Resident Of Village Pranchak, Police Station - Chandi, District -
Nalanda.
.... .... Petitioner
Versus
1. The State Of Bihar through Principal Secretary, Department Of
Health, Govt. of Bihar, Patna.
Patna High Court CWJC No.18912 of 2011 (13)
2/31
2. Director-In-Chief, Health Services, Govt. of Bihar, Patna.
3. Civil Surgeon -Cum-Chief Medical Officer, Araria.
4. Incharge Medical Officer, Primary Health Centre, Narpatganj, Araria.
.... .... Respondents
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with
Civil Writ Jurisdiction Case No.19938 of 2012
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1. Kamta Pandit S/O Late Ganauri Pandit R/O Vill-Tharthari, P.S.-Koil
Bigha, Distt-Nalanda
.... .... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Department Of
Health, Govt. Of Bihar, Patna
2. Director in Chief, Health Services, Bihar, Patna
3. Additional Director, Health Services (F.W.), Bihar, Patna
4. Civil Surgeon cum Chief Medical Officer, Saharsa
5. Incharge Medical Officer, Primary Health Centre, Sour Bazar, Saharsa
.... .... Respondents
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Appearance :
(In CWJC No.18912 of 2011)
For the Petitioners : Mr. Shiv Kumar, advocate
For the Respondents : Mr. Sanjay Kr No.1 SC12
(In CWJC No.20511 of 2011)
For the Petitioners : Mr. Shiv Kumar, advocate
For the Respondents : Mr. Rakesh Kr. Sharma, AC to GP2
(In CWJC No.17366 of 2011)
For the Petitioners : Mr. Shiv Kumar, advocate
For the Respondents : Mr. Ajay SC11
(In CWJC No.19938 of 2012)
For the Petitioners : Mr. Shiv Kumar, advocate
For the Respondents : Mr. Sunil Kr. Mandal SC24
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL ORDER
13 01-09-2014All these writ applications involve a common issue and, therefore, they have been heard together and are being disposed of by the present common order.
Patna High Court CWJC No.18912 of 2011 (13)3/31
2. In all these writ applications, relevant portion of the enquiry report submitted by Five Member Committee under the orders of this court dated 26.06.2006 in L.P.A. No. 946 of 2003 (the State of Bihar vs. Purendra Sulankit and others){2006(3) PLJR 386} and other analogous cases, is under challenge to the extent the report is adverse to them.
CWJC No. 18912 of 2011
3. The petitioner of this case claims that he was in search of some job and learnt that a notice had been published on the notice board of the office of Regional Deputy Director (R.D.D.), Health Services, Magadh Division, Gaya, inviting applications for filling up different class-III & IV posts lying vacant in Magadh Division. Pursuant to the said notice, he is said to have applied whereupon by a letter dated 12.05.1989 issued by the R.D.D (H), Magadh Division, Gaya he was asked to appear for written examination/ interview on 27.05.1989 at 10 AM. The said letter dated 12.05.1989 has been brought on record as annexure-1 to the writ application. He appeared in the written examination/ interview along with relevant original documents and, after written examination/ interview taken by the board of five members under the chairman of R.D.D (H), Magadh Division, Gaya, the petitioner was finally selected for the post of Clerk and, accordingly, vide Patna High Court CWJC No.18912 of 2011 (13) 4/31 letter dated 27.07.1989 he was appointed to the post of Clerk and was posted in the office of R.D.D (H), Magadh Division, Gaya. The petitioner was subsequently, posted at Additional Primary Health Centre, Londh, (Sirdala) Nawada. By an order dated 16.01.1992 issued by Civil Surgeon-cum- Chief Medical Officer, Nawada services of altogether 46 persons were terminated on the ground that their initial appointments itself were irregular. Service of petitioner was also terminated. Subsequently, the order of termination was set aside by this court by an order dated 19.10.1992 passed in CWJC No. 1701 of 1992 whereupon the Civil Surgeon-cum- Chief Medical Officer, Nawada issued an office order vide memo No. 2053 dated 20.11.1992, pursuant to which the petitioner was reinstated in service with retrospective effect and was directed to join at his earlier place of posting at Additional Primary Health Centre, Londh, (Sirdala) Nawada. Subsequently, while the petitioner was posted at Additional Primary Health Centre, Kadirganj, a show cause notice dated 22.03.2003 was served upon him asking him to explain the validity of his appointment. The petitioner filed his show cause along with relevant documents. Thereafter, by an order issued by Civil Surgeon-cum- Chief Medical Officer, Nawada vide memo no. 409 dated 13.08.2003, the petitioner‟s service was terminated on the Patna High Court CWJC No.18912 of 2011 (13) 5/31 ground that the petitioner relied upon the appointment letter issued vide letter No. 41C dated 27.07.1989 whereas in the said letter No. 41C name of one Arun Kumar, „Lipik‟ was mentioned. It was also mentioned that prescribed guidelines and rules were not followed in making such appointments and reservation requirements were also given a go bye. The petitioner filed a writ application before this court vide CWJC No. 11415/ 2003, which was heard along with batch of cases, the leading case is being L.P.A. No. 946 of 2003 (the State of Bihar vs. Purendra Sulankit and others). A Division Bench of this court made following observations, while disposing of the said LPA No. 946 of 2003 and other analogous cases (supra).
"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 judgement of the constitution Bench of the Supreme Court in, the case of Secretary, State of Karnataka & Ors. V. Uma Devi & 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 judgement. In view of such consensus on the part of lawyers appearing for the aforesaid employees and the counsel for the State, the task of deciding those Letters Patent Appeal and writ petitions has become considerably easy because the learned counsel for the affected employees accepted that the Letters Patent Appeals as well as the writ petitions be disposed of with a direction to Patna High Court CWJC No.18912 of 2011 (13) 6/31 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 judgement 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 judgement and particularly, in accordance with observations and directions given by the Apex Court in paragraph 44 of the said judgement.
It is useful to notice that in paragraph 44 of the said judgement 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 regularization if such employees have continued to work for ten years or more without intervention of orders of courts or 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 court or of tribunals. Along with such direction to the various Governments and their instrumentalities the Apex Court directed them to ensure that regular recruitment 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 judgement i.e. 10.04.2006".
4. An enquiry committee was constituted in the light of direction given by this court in case of State of Bihar vs. Patna High Court CWJC No.18912 of 2011 (13) 7/31 Purendra Sulankit (supra). The committee submitted its report holding the petitioner‟s appointment as illegal on the ground that R.D.D, (H), Magadh Division, Gaya was not competent authority to make such appointments.
5. This is to be noted here from the report of the said enquiry committee that the appointments, which were being considered by the Five Member Committee, in the light of order of this court, were divided in three categories, namely, illegal, forged and irregular, which were based on the nature of initial appointments. The petitioner challenges the report of the enquiry committee on the ground that there is total non application of mind by the members of the enquiry committee; the report of the enquiry committee was prepared behind the back of the petitioner in violation of principles of natural justice; similarly situated persons were treated differently and favourably by the enquiry committee.
6. Heavy reliance has been placed upon an order of this court dated 14.05.2009 passed in CWJC No. 6088/2009 to contend that appointment of one Surendra Prasad Singh was also held illegal, having been appointed by the R.D.D (H), who was not competent to do so. Relying upon the said order of this court, it has been contended that adopting the reasoning assigned by this court, the petitioner‟s appointment could have been at the maximum said Patna High Court CWJC No.18912 of 2011 (13) 8/31 to be irregular and not illegal. Several instances have been given in the writ application in order to make out a case that even persons who got appointment letters fraudulently have been allowed to continue in service.
7. This is to be noted that appointees, 91 in number, whose cases were placed in the category of "irregular appointees"
by the enquiry committee. In terms of the judgement of the Supreme Court in case of Secretary State of Karnata vs. Uma Devi (2006 (2) PLJR (SC) 363), they were reinstated and allowed to continue in service whereas the persons who were placed in the categories of illegal appointees or fraudulent appointees were terminated from service.
8. Strong reliance has been placed upon a Division Bench order of this court dated 14.07.2011 passed in LPA No. 1541 of 2010 (the State of Bihar vs. Birendra Prasad Singh) in order to contend that, in the facts and circumstances of the case, at the maximum, the petitioner‟s appointment could have been said to be irregular and could not be termed as illegal. For the same purpose, reliance has been placed upon another Division Bench order of this court dated 20.07.2011 passed in LPA No. 1563/ 2010 (State of Bihar vs. Rajendra Prasad Singh). An order of the Supreme Court dated 07.10.2013 passed in SLP (C) No. 17769/ Patna High Court CWJC No.18912 of 2011 (13) 9/31 2003 (State of Bihar vs. Birendra Prasad Singh) has also been brought on record by the petitioner with a plea that the order dated 14.07.2011 in case of Birendra Prasad Singh (supra) passed by Division Bench of this court came to be upheld by the Supreme Court also.
9. A counter affidavit has been filed in the present case on behalf of Incharge, Medical Officer, Additional Primary Health Centre, Kadirganj, Nawada stating therein that power to appoint a person against class-III post was vested in the appointment committee and R.D.D (H), Magadh Division, Gaya did not have any jurisdiction to make appointment against class-III post. It has also been stated in the counter affidavit that the case of Surendra Prasad Singh (supra) is not on similar footing. It has been stated that no other person appointed in similar manner as that of the petitioner by the same authority, i.e., R.D.D (H), Magadh Division, Gaya has been allowed to continue.
10. Separate counter affidavit has been filed on behalf of the Deputy Director, Health Services, Government of Bihar, Patna stating that there was no record of the advertisement/ notice inviting application or applications submitted pursuant thereto in the office of R.D.D (H), Magadh Division, Gaya. It has been asserted that there was only five posts of Clerks in R.D.D. office, Patna High Court CWJC No.18912 of 2011 (13) 10/31 Gaya sanctioned in the year 1989-91 against which names of Shri Ganesh Ram, Shri Krishna Prasad Sharma, Shri Madhav Sharan, Shri Bhupendra Pati and Shri Din Dayal Mishra are mentioned in the acquittance roll of the office whereas the petitioner‟s name is not there in the acquittance roll. It has been stated in paragraph 6 of the counter affidavit that memo No. 54 dated 12.05.1989, brought on record as annexure-1, was not addressed to the petitioner but it was addressed to the Civil Surgeon-cum- Chief Medical Officer, Aurangabad, the petitioner has claimed in the writ application that the said letter No. 54 dated 12.05.1989 was issued to him asking him to appear in the written examination/ interview.
11. A rejoinder has been filed on behalf of the petitioner on 07.04.2014 to the counter affidavit, as noted above. The petitioner has blamed the office for non availability of record as regards absence of petitioner‟s name in the acquittance roll. It has been stated that petitioner was waiting for posting in the office of R.D.D (H), Magadh Division, Gaya and subsequently he was posted in Additional Primary Health Centre, Londh, (Sirdala) Nawada vide memo no. 84C dated 21.11.1989 issued under the signature of R.D.D (H), Magadh Division, Gaya and, therefore, there was no question of his name appearing in the acquittance roll of R.D.D (H), Magadh Division, Gaya as he was never posted Patna High Court CWJC No.18912 of 2011 (13) 11/31 there.
CWJC No. 20511 of 2011
12. The petitioner of this case claims that he was appointed as Male Family Welfare worker in the scale of Rs. 975- 1540/- vide memo No. 1805 dated 02.11.1989 issued under the signature of Civil Surgeon-cum- Chief Medical Officer, Sahebganj and was thereafter posted in Primary Health Centre, Taljhari, Sahibganj. He was transferred from one place to another and while posted at Primary Health Centre, Barauni a letter vide memo no. 1003 dated 26.12.2003 issued by Incharge, Medical Officer, Barauni was served upon him informing that his service had been terminated by a letter issued vide memo no. 3847 dated 20.12.2003 under the signature of Civil Surgeon-cum- Chief Medical Officer, Begusarai. The petitioner thereafter filed a writ application vide CWJC No. 1209 of 2004 which was disposed of along with L.P.A. No. 946 of 2003 (the State of Bihar vs. Purendra Sulankit and others). As has been noted above, the Five Member Enquiry Committee was constituted, which found the petitioner‟s appointment as forged as would be evident from annexure-7 to the writ application. From the report of the enquiry committee, it appears that his appointment letter itself was found to be forged. The petitioner challenges he said report on same grounds, as has Patna High Court CWJC No.18912 of 2011 (13) 12/31 been noted in the case of Ajay Kumar (CWJC No. 18912/2011).
13. In the counter affidavit filed on behalf of the respondents, it has been asserted that it transpired, upon verification, that the petitioner never joined at Primary Health Centre, Taljhari as claimed by him and the petitioner worked on a forged appointment letter till termination of his services.
CWJC No. 17366 of 2011
14. The petitioner claims that he was admitted for training as Basic Health Worker in Sadar Hospital, Ranchi and after successful training from 10.08.1973 to 25.05.1974, a certificate had been issued in his favour. According to him, he learnt that an advertisement has been issued in daily Hindi newspaper, Aryabart inviting applications from persons who had taken training of Basic Health Worker in the year 1973-74 but are still unemployed. The petitioner in response to the said advertisement applied and thereafter vide memo no. 318 dated 07.02.1981 he was appointed to the post of Basic Health Worker in the scale of Rs. 220-315/-. The petitioner, it is said, was given first time bound promotion w.e.f. 09.02.1991 upon completion of 10 years of service. However, all of a sudden the petitioner received a communication vide memo no. 273 dated 07.02.2003 under the signature of Civil Surgeon-cum- Chief Medical Officer, Araria Patna High Court CWJC No.18912 of 2011 (13) 13/31 asking him to show cause as regards validity of his appointment on the ground that in the issue register name of one Mohan Jha was mentioned whereas the petitioner claimed that he was appointed on the basis of such appointment letter vide memo no. 318 dated 07.02.1981. The petitioner‟s service was, thereafter, terminated by memo no. 396 dated 22.02.2003. The petitioner, thereafter, filed a writ application vide CWJC No. 4146/ 2003 before this court seeking quashing of the order issued vide memo no. 396 dated 22.02.2003 whereby his service was terminated. By an order dated 08.09.2003 passed in CWJC No. 4702 of 2003 and other similar matters, this court allowed the writ application and quashed the order of termination. The State Government, thereafter, preferred appeals against various orders. LPA No. 225 of 2004 was preferred by the State Government against the order passed in CWJC No. 4146 of 2003, which was filed by the petitioner. The LPA no. 225/2004 was heard along with L.P.A. No. 946 of 2003 (the State of Bihar vs. Purendra Sulankit and others) and other similar matters. Pursuant to direction by the Division Bench, the petitioner‟s case was considered and the enquiry committee held the petitioner‟s appointment to be forged, as appointment letter no. 318 dated 07.02.1981 was found forged.
15. It is specific plea of the petitioner in paragraph 17 Patna High Court CWJC No.18912 of 2011 (13) 14/31 of the writ application that the enquiry committee wrongly came to a finding that petitioner‟s appointment letter was forged on absolutely wrong basis. The petitioner was appointed vide letter no. 318 dated 07.02.1981 whereas the respondents compared the petitioner‟s appointment letter from dispatch register with reference to letter no. 318 dated 07.02.1989. It is the petitioner‟s plea that the very basis of holding petitioner‟s appointment as forged is nonest and there has been non application of mind by the members of the enquiry committee to the extent it is related to scrutinizing appointment of this petitioner. Other grounds to challenge of petitioner‟s appointment are by and large same as taken in the above mentioned two writ applications.
16. This writ application was filed on 27.09.2011 after serving two copies of the writ application upon the office of Advocate General, Bihar on 06.09.2011. By an order date 29.03.2012, the respondents were granted six weeks time for filing counter affidavit. However, no counter affidavit has been filed on behalf of the State respondents. The averments made in the present writ application, particularly, those in paragraph 17 that respondents wrongly compared petitioner‟s appointment letter no. 318 dated 07.02.1981 stand admitted.
CWJC No. 19938 of 2012 Patna High Court CWJC No.18912 of 2011 (13) 15/31
17. The petitioner‟s case is that he was appointed on daily wage basis in the district of Darbhanga where he continued for two years. Subsequently, by a letter dated 24.08.1983 Additional Director, Health Services (Family Welfare), Bihar forwarded list/names of several persons asking the Civil Surgeon- cum- Chief Medical Officer, Saharsa to absorb them on vacant posts. According to the petitioner, this was done in pursuance of the letter dated 17.09.1979 issued by the Health Department, Government of Bihar whereby, decision was taken to absorb the services of those employee who were working in Chapra, Bettiah and Darbhanga districts but were subsequently retrenched. Thereafter, vide memo no. 2564 dated 30.11.1983 issued by Civil Surgeon-cum- Chief Medical Officer, Saharsa the petitioner was absorbed on the post of Computer in the scale of Rs. 535-765/- and was posted in Simri Bakhtiyarpur block, Saharsa where he joined on 02.12.1983. The petitioner was given first Time Bound Promotion on 02.12.1993. While posted at Primary Health Centre, Sour Bazar, Saharsa the petitioner was served with a show cause notice dated 12.05.2003 asking him to show cause as to why his services be not terminated. The petitioner is said to have replied to the said show cause. Again by letter no. 905 dated 29.03.2004 the petitioner was asked to submit his reply and thereafter by an order Patna High Court CWJC No.18912 of 2011 (13) 16/31 dated 15.07.2004 (annexure-5), the petitioner‟s services came to be terminated on the ground that the certificate of petitioner‟s retrenchment was found to be forged and he never worked on daily wage basis nor retrenched, therefore, he did not have any case for his absorption.
18. From annexure-5, it would appear that such persons were required to be absorbed who were appointed in the year 1970 and were retrenched in the year 1972. The petitioner challenged the said letter dated 15.07.2004 by filing CWJC No. 13569 of 2004 before this court which was heard along with the said L.P.A. No. 946 of 2003 (the State of Bihar vs. Purendra Sulankit and others)(supra) and was disposed of by a common order, operative portion of which has been quoted hereinabove. The enquiry committee constituted under the orders of this court found the petitioner‟s appointment to be based on false panel. Again this petitioner has also taken similar rather identical plea as in case of other petitioners in the present bath of writ applications to challenge the finding of the enquiry committee.
19. In the counter affidavit it has been asserted that the petitioner obtained the job by way of adjustment on the basis of false retrenchment certificate and was correctly found to be forged by the enquiry committee. It has been stated in paragraph 14 that Patna High Court CWJC No.18912 of 2011 (13) 17/31 the name of the petitioner was not available in acquittance roll of daily wage workers of the year 1970-72.
20. A rejoinder to the said counter affidavit has been filed asserting that there has been non application of mind by the members of the enquiry committee and without giving due opportunity to the petitioner, finding have been recorded by the enquiry committee against this petitioner.
21. There is a common plea raised in all these writ applications that the respondents were required to follow the detailed procedure as contemplated under Article 311(2) of the Constitution of India before terminating their services.
22. I will deal with CWJC No. 17366 of 2011 first. In my opinion, the facts alleged in the writ application that the committee came to a wrong finding that petitioner‟s appointment letter No. 318 dated 07.02.1981 was forged by wrongly comparing it with letter No. 318 dated 07.02.1989. Since there is no counter affidavit filed on behalf of the respondents-the State of Bihar in this regard, the petitioner‟s plea to this extent stands admitted. The enquiry report, as contained in annexure-5 to the writ application, to the extent it relates to the petitioner of CWJC No.17366 of 2011 is quashed. The petitioner shall be reinstated in service forthwith. In the facts and circumstances of the case, I direct the Director-in- Patna High Court CWJC No.18912 of 2011 (13) 18/31 Chief, Health Service, Government of Bihar, Patna to consider the petitioner‟s appointment letter No. 318 dated 07.02.1981 appointing the petitioner on the post of Basic Health Worker. Such order must be passed within a period of three months from the date of production of a copy of this order by the petitioner. The petitioner shall be entitled for future salary upon his reinstatement but his backwages will depend upon the outcome of the order of the Director-in-Chief to be passed pursuant to the present order. If his appointment letter No. 318 dated 07.02.1981 is found to be genuine, the Director-in-Chief will also be required to record whether the petitioner will be entitled for arrears of salary or not. If any order, which is passed by the Director-in-Chief, pursuant to the present order, adverse to the interest of the petitioner, must be reasoned. The petitioner shall have the liberty to challenge the order of the Director-in-Chief, if he feels aggrieved, before appropriate forum.
23. CWJC No.17366 of 2011 is, accordingly, allowed.
24. Since the State has failed to file any counter affidavit despite the fact that the matter remained pending for nearly three years, I impose a cost of Rs. 10,000/- to be paid to the petitioner within the said period of three months.
CWJC Nos. 18912 of 2011, 20511/2011 and 19938 Patna High Court CWJC No.18912 of 2011 (13) 19/31 of 2012
25. With respect to these applications, Mr. Shiv Kumar, learned counsel for the petitioners, has vehemently argued that a full fledged departmental proceeding was a constitutional requirement under Article 311(2) of the Constitution of India before taking a decision to terminate the services of these petitioners. He has contended that without conducting a full fledged departmental proceeding, governed and regulated by the disciplinary rules applicable to the State Government employees, the services of the petitioners could not be terminated. In order to consider this submission, I consider it appropriate to discuss in brief the manner in which these petitioners claimed to have been appointed and nature of objections raised by the enquiry committee.
26. The petitioner of CWJC No. 18912 of 2011 has claimed that he submitted his application in response to a notice published on the notice board of the office of Regional Deputy Director (H), Magadh Division, Gaya. Pursuant thereto, by a letter No. 54 dated 12.05.1989, he was asked to appear for interview on 27.05.1989. The so-called interview letter has been annexed as annexure-1 the writ application. The letter does not mention even the post against which the petitioner had applied and the post for Patna High Court CWJC No.18912 of 2011 (13) 20/31 which he was invited to appear for examination/ interview. It is his claim that he was appointed by letter dated 27.07.1989 issued by Regional Deputy Director (H), Magadh Division, Gaya. Upon enquiry, it was found that the letter No. 41C dated 27.07.1989, which the petitioner claimed to have issued to him appointing him against class-III post, was in fact issued to one Arun Kumar, Lipik.
27. In the counter affidavit the respondents has taken a plea that the Regional Deputy Director (H), Magadh Division, Gaya did not have any authority to appoint a person against class- III post. It has also been stated in the counter affidavit that the petitioner‟s name does not figure in the acquittance roll. Letter No. 54 dated 12.05.1989 which, according to the petitioner, was written to him inviting him for interview was, as per counter affidavit, addressed to Civil Surgeon-cum- Chief Medical Officer, Aurangabad and not to the petitioner.
28. These facts point towards one and only thing that the petitioner‟s appointment was fraudulent. This is evident from the fact that neither any notice inviting applications could be found in the so-called interview letter nor name of the post is mentioned. The interview letter has not been found to be even issued to the petitioner and the petitioner‟s name could not be found in acquittance roll.
Patna High Court CWJC No.18912 of 2011 (13)21/31
29. The petitioner of CWJC No. 20511 of 2011 has claimed that he was appointed as Male Family Welfare Worker on 02.11.1989. The petitioner‟s appointment letter has been found to be forged. The plea of the respondents in their counter affidavit is that the petitioner worked on a forged appointment letter. Nothing has been stated in the writ application about the manner in which the petitioner was selected for appointment by the Civil Surgeon- cum- Chief Medical Officer, Sahebganj. Even as per the petitioner‟s averment, no notice was issued and no selection process was followed for making appointment added with the fact that the enquiry committee has come to a finding that the petitioner‟s appointment letter itself was forged.
30. The petitioner of CWJC No. 19938 of 2012 was said to be appointed in pursuance of a letter issued by Health Department, Government of Bihar dated 17.09.1979 whereby a decision was taken to absorb the services of those employees who were working in Chapra, Bettiah and Darbhanga but were subsequently retrenched. The petitioner was appointed on the basis that he was also worked on daily wage during the period 1970-72 and retrenched. The retrenchment certificate, on the basis of which the petitioner came to be appointed, has been found to be forged and fabricated as his name did not figure in the acquittance roll of Patna High Court CWJC No.18912 of 2011 (13) 22/31 daily wage workers for the said period.
31. In this background, the plea of the petitioners will have to be considered as to whether the provisions of Article 311(2) of the Constitution of India was required to be followed before terminating the services of these petitioners.
Article 311(2) of the Constitution of India reads as follows:-
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State- (1) No person who is a member of a civil service or of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be Patna High Court CWJC No.18912 of 2011 (13) 23/31 recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such enquiry as is referred to in clause(2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
32. So as to claim provisions of Article 311(2) of the Constitution of India a person will have to establish that "he is a member of a civil service of the Union of India or an all-India service or a civil service of a State or holds a civil post under the Union or a State". For this purpose he will have to establish that he holds a civil post under the Union or the State or, as the case may be, a member of all India service or other service of a State under the authority of law. A person who has been found to have been fraudulently, illegally or unauthorizedly working against the post under the State cannot claim protection under Article 311(2) of the Constitution of India.
33. My view is supported by Supreme Court judgements reported in (2006) 11 SCC 356 (Inderpreet Singh Kahlon vs the State of Punjab), (2008) 1 SCC 798 (Nagendra Chandra vs. the State of Jharkhand), (2007) 5 SCC 65 (State of Patna High Court CWJC No.18912 of 2011 (13) 24/31 Manipur vs Token Singh) and (2007) 8 SCC 249 (State of Jharkhand vs. Manshu Kumbhakar).
34. In case of Inderpreet Singh (supra) the court held in paragraph 40 as follows:-
"40. We at the outset would furthermore notice that having regard to the submissions made before us by Mr. Dwivedi and Mr. Rao that the services of the appellants before us were terminated not in terms of the rules but in view of the commission of illegality in the selection process involved, we need not consider the applicability of the relevant provisions of the statutes as also the effect of the provisions of Article 311 of the Constitution of India. An appointment made in violation of Articles 14 and 16 of the Constitution of India would be void. It would be a nullity. But before such a finding can be arrived at, the appointing authority must take into consideration the foundational facts. Only when such foundational facts are established, the legal principles can be applied."
35. In case of Nagendra Chandra (supra) the Apex Court laid down the law that when the appointments were made without any advertisement inviting applications, such appointments were not only amounted to infraction of Rules but also in violation of Articles 14 and 16 of the Constitution of India. The court in such circumstance upheld the decision of the authorities of dispensing with the service of such persons.
36. In case of Token Singh (supra) the Supreme Court, Patna High Court CWJC No.18912 of 2011 (13) 25/31 while dealing with the forged appointment letters held that if the offers of appointment were forged documents, the State would not have been compelled to pay salaries to them from the State exchequer. The court held in most unambiguous terms that any action which had not been taken by an authority, competent therefor and in complete violation of constitutional and legal framework, would not be binding on State. Law in this regards has succinctly been laid down in paragraphs 17 and 26 of the judgement in case of Token Singh which are being reproduced hereinbelow:-
"17. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fides.
"26. We in the facts and circumstances of this case do not see any arbitrariness on the part of the State in its action directing cancellation of appointments."
37. In case of State of Jharkhand vs. Manshu Kumbhakar (supra) the Apex Court refused to interfere with the cancellation of appointment where, upon examination of dispatch Patna High Court CWJC No.18912 of 2011 (13) 26/31 register it was found that no interview letter as claimed by respondent of that case was ever dispatched.
38. Upon consideration of judgements of the Supreme Court, as discussed above, and the provisions as contained in Article 311(2) of the Constitution of India, I come to the following conclusion:-
(i) If the Union or the State or any authority under it forms opinion that a person has obtained any employment under it fraudulently or where the appointment letter itself is found to be forged, no enquiry as contemplated under Article 311(2) of the Constitution of India will be required as such person cannot be said to be holding a civil post under the Union or a State. Such person who holds a civil post by playing fraud is not covered by Article 311 of the Constitution of India as no relationship of employer and employee exists between the Union or a State as the case may be When there is an issue as regards fraudulent/ illegal/ unauthorized engagement/ appointment/ employment under the Union or the State, a notice to such person by an authority competent to appoint such person on the post in question asking such person to explain the validity of his appointment will be sufficient compliance of principles of natural justice. As the person against whom there is allegation of obtaining appointment/ employment fraudulently/ Patna High Court CWJC No.18912 of 2011 (13) 27/31 illegally will have to satisfy the competent authority about the validity of his appointment and the onus will be upon him to establish that he was duly appointed by a competent authority. The competent authority will thereafter be required to take a final decision by a reasoned order taking into account the stand of such person and material produced by him before the competent authority. It will be open to the competent authority to hold enquiry as he deems fit for the purpose of reaching to a just conclusion.
(ii) It is made clear that no full fledged departmental proceeding as contemplated under Rules governing disciplinary action against persons holding a civil post under the Union or the State shall be required in such cases which normally deal with misconduct committed as a person employed under Union or a State.
(iii) Requirement of compliance of principles of natural justice will arise only when such person is in a position to establish existence of a legal right in his favour to continue to hold such post in order to establish such right as the person will be obliged to establish that appointment had been made after following constitutional mandate under Articles 14 and 16 of Constitution of India and he had been engaged/ employed/ appointed by a person competent to engage/ appoint/ employ him Patna High Court CWJC No.18912 of 2011 (13) 28/31 against such post. If the person fails to establish these things he cannot raise plea of violation of principles of natural justice since in such circumstance it would be useless formality.
39. Coming to the cases in hand I am of the view that a person cannot claim protection under Article 311(2) of the Constitution of India who got an appointment through an illegal selection process. Such protection will not be there also in cases whether the appointment itself is nonest in the eye of law being made in violation of constitutional scheme.
40. So far as, right to hearing is concerned, as noted above, the petitioners were given show cause notice and a fact finding enquiry committee was constituted under the orders of this court which came to a finding that the petitioners‟ appointments were fraudulent.
41. Learned counsel for the petitioners has also argued that the report of the enquiry committee is perfunctory and has been prepared casually. He has submitted that cases of the petitioners have not been considered in their right perspective and there has been non application of mind by the members of the enquiry committee.
42. I do not find that any purpose would be served by going into those aspects for the simple reason that even on the Patna High Court CWJC No.18912 of 2011 (13) 29/31 basis of their own pleadings the petitioners have miserably failed to satisfy this court that their appointment letters were validly issued by the competent authority and after following any procedure. Their appointments, on the basis of their own pleadings, is against the constitutional scheme.
43. This is to be kept in mind that in the light of the Division Bench judgement of this court in case of Purendra Sulankit (supra) the cases of concerned employees were to be considered in the light of and in accordance with the Supreme Court judgement reported in (2006) 4 SCC 1 (Secretary, the State of Karnataka vs. Uma Devi (3) and others. A full Bench of this court in case of Ram Sevak Yadav vs. the State of Bihar reported in 2013 (1) PLJR 965 has held in paragraph 43 as follows:-
"43. We therefore sum up our conclusions and answer the reference as follows:-
(A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant; (B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.
(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of Patna High Court CWJC No.18912 of 2011 (13) 30/31 the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
(D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders."
44. In the background of these facts, even if the pleadings in the writ application, as developed by the petitioners themselves, are accepted no relief can be granted to them.
45. Though the case of the petitioner of CWJC No. 19938 of 2012 is slightly different inasmuch as he has claimed to have been appointed treating him as a retrenched employee who had worked on daily wage basis during the period 1970-72. There is statement in paragraph 4 of the writ application that he was initially appointed and was working on daily wage basis in the district of Darbhanga for about two years and thereafter his service was retrenched. There is absolutely no averment as to when the petitioner was engaged on daily wage basis and the date with effect from which he was disengaged/ retrenched. There is no averment in the writ application that he received any wages for the period during which he worked on daily wage basis. For the first time in Patna High Court CWJC No.18912 of 2011 (13) 31/31 reply to the counter affidavit the petitioner has stated that he worked on daily wage basis for the period 1970-72. Curiously in paragraph 7 of rejoinder to the counter affidavit the petitioner has stated "petitioner has nowhere stated that he was paid his remuneration from the office of Additional Chief Medical Officer, Darbhanga while he was working as daily wager in the district of Darbhanga from 1970 to 1972". It is, therefore, his own admission that he was not paid any wage during the said period and there is no material to substantiate his claim that he in fact worked as daily wage.
46. In view of discussions, as above, I do not find any merit in these writ applications. CWJC Nos. 18912 of 2011, 20511/2011 and 19938 of 2012 are, accordingly, dismissed.
47. CWJC No. 17366 of 2011 is, accordingly, allowed.
The parties shall bear their own cost.
(Chakradhari Sharan Singh, J) BKS/- AFR U