Patna High Court
Sanjay Kumar vs The State Of Bihar & Ors on 13 May, 2008
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.5631 of 2008
ASPUJAN SINGH
Versus
THE STATE OF BIHAR & ORS
With
CWJC No.5651 of 2008
RAMASHISH SAH
Versus
THE STATE OF BIHAR & ORS
With
CWJC No.5799 of 2008
SANJAY KUMAR
Versus
THE STATE OF BIHAR & ORS
With
CWJC No.5976 of 2008
RAM CHANDRA SINGH
Versus
THE STATE OF BIHAR & ORS.
With
CWJC No.5796 of 2008
ASHOK KUMAR
Versus
THE STATE OF BIHAR & ORS
With
CWJC No.5929 of 2008
KRISHNA KUMAR BHARGAV
Versus
THE STATE OF BIHAR & ORS
With
CWJC No. 6270 of 2008
NARENDRA LAL DEO
Versus
THE STATE OF BIHAR & ORS.
With
CWJC No. 6234 of 2008
RAM ISHWAR SAH
Versus
THE STATE OF BIHAR & ORS.
With
CWJC No. 6832 of 2008
ANIL KUMAR
VERSUS
THE STATE OF BIHAR & ORS.
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2
For The Petitioners : Banwari Sharma, Adv.
Mr. Shivendra Kishore, Adv.
For the State : Mrs. Nivedita Nirvikar, Adv. GP-16
Mr. Shyam Kishore Sharma, GP-5
P R E S E N T
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
Mihir Kr. Jha, J. Since all the writ petitions involve same question
they have been heard together and are being disposed of
by this common order.
The petitioners are aggrieved by an order dated
10.9.2007whereby and whereunder the Directorate of Health in the Health Department in compliance of the order of this Court dated 26.6.2006 in L.P.A. No. 946 of 2003 in the case of State of Bihar Vs. Purendra Sulan Kit reported in 2006(3) PLJR 386 has sought to regularize the services of the 91 persons while denying the same relief to the petitioners.
In order to appreciate the aforementioned grievance of the petitioners, it would be necessary for this court to consider the factual background under which these cases have been filed.
CWJC No. 5631 of 2008
Aspujan Singh Vs. The State of Bihar & Ors.
In this case the petitioner Aspujan Singh claims to 3 have been appointed in the post of Basic Health Worker in view of a direction of the Director, Health Services, Bihar, Patna as contained in letter no. 987(10) dated 23.6.1981 which led to an order of his appointment issued under the pen and signature of Civil Surgeon cum Chief Medical Officer, Singhbhum at Chaibasa vide his office order as contained in memo no. 59 (Kusth) dated 24.7.1981. The petitioner on the strength of his appointment letter dated 24.7.1981 had continued to work on the post of Basic Health Worker and was also paid his salary in the prescribed pay-scale by the State Government. It is the case of the petitioner that the State Establishment Committee at Directorate Level in its meeting held on 28.12.1988 had taken a decision for inter district transfer from Chakari Primary Health Centre (P.H.C.) in Potka block in the Singhbhum district to the office of Civil Surgeon cum Chief Medical Officer, Rohtas which was given effect to by an office order dated 31.12.1988 issued by the Directorate at Health. The petitioner after being relieved from Potka on 12.5.1989 had joined in the office of the Chief Medical Officer, Rohtas who had thereafter posted him against a sanctioned and vacant post of Basic Health Worker in Shivsagar P.H.C. in the district of Rohtas. It has been asserted by the petitioner that genuineness of aforesaid his order of transfer dated 4 31.12.1988 was also verified and on its being confirmed by the Directorate of Health vide order no. 1323(22) dated 25.10.1989, his payment of salary was released by the office of Civil Surgeon cum Chief Medical Officer, Rohtas vide letter no. 5349 dated 30.11.1989.
The petitioner has claimed that in May 1991 his payment of salary was withheld on the ground of some enquiry and he was directed by the In-charge Medical Officer of Shivsagar block in the district of Rohtas to submit documents relating to his original certificate and mark-sheet of matriculation examination as also training certificate of Basic Health Worker, copy of his transfer order from the district of Singhbhum, relieving order from the district of Singhbhum and caste certificate. It is said that the petitioner had complied the said order and had submitted the relevant documents in the office of In- charge, Medical Officer, Primary Health Center, Shivsagar on 13.6.1991 but even then his payment of salary was not resumed in next two years and as such he had filed a writ petition being CWJC No. 10489 of 1995 for payment of his salary which was ultimately disposed of by an order of this Court dated 18.1.1996 directing the respondents to pass final order in the enquiry within a period of one month with a further direction that if the result of the enquiry was in favour of the petitioner, he must be paid 5 his arrear of salary within a period of two months from the date of such order. Whereafter payment of his salary was resumed under the orders of Civil Surgeon, Rohtas dated 20.2.1996.
For next seven years, the petitioner continued to work with without any impediments and it is said that only in April 203 he was again served with a show-cause notice issued by the office of Civil Surgeon cum Chief Medical Officer, Rohtas at Sasaram wherein his correctness of his initial appointment was questioned on the ground of a general enquiry undertaken in respect of all appointments on Class-III or Class-IV posts in the Health Department w.e.f. 1.1.1980. In such show cause notice it was alleged that his appointment was made without issuance of any advertisement and as such, he was asked to explain as to why his appointment should not be declared illegal on account of his being appointed without following the prescribed procedure of appointment i.e. advertisement, selection and the government policy of roaster and reservation. The petitioner claims that he had filed his show cause reply on 13.5.2003 stating therein that after completing 22 years of service, the issuance of show-cause notice questioning his initial appointment of the year 1981 was itself bad and in this context, he had also relied on the order of this Court dated 18.1.1996 in 6 CWJC No. 10489/1995 with an added emphasis that once his payment of salary in course of an earlier enquiry pertaining to an allegation of illegal appointment leading to stoppage of payment of salary had already been gone into by the Civil Surgeon of Rohtas district, it was wholly unfair to subject his appointment to further scrutiny on the ground of his being appointed without issuance of an advertisement. The service of the petitioner however was terminated by an order dated 7.6.2003 passed and issued by the Civil Surgeon cum Chief Medical Officer, Rohtas at Sasaram who had merely indicated in the order terminating the services of the petitioner that the reply submitted by the petitioner in response to the show-cause was not satisfactory and his services had been terminated only on the ground that his initial appointment was illegal as it was made without publication of advertisement in newspaper.
It is the case of the petitioner that he had assailed the aforementioned order of termination of services dated 7.6.2003 on various grounds in CWJC No. 12977 of 2003 which came to be heard along with a batch of letters patent appeals and writ applications all relating to termination of service of the employees of the Health Department which were disposed of by a common judgment dated 26.6.2006 in the case of Purendra Sulan 7 Kit (supra) directing the respondents to consider the case of all the affected employees including that of the petitioner to examine their cases afresh in the light of law laid down by the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006(4) SCC 1 and its paragraph no.44 of the judgment.
The petitioner has stated that pursuant to the order of this Court dated 26.6.2006 in the aforementioned batch of LPAs and writ applications, the Health Department after constituting a committee had sought to regularize the services of 91 candidates in the light of the recommendation of the committee vide an order dated 10.9.2007 but the same relief was sought to be denied to the petitioner because the committee had found the initial appointment letter of the petitioner to be forged inasmuch as the same was not found to have been issued from the concerned office.
The petitioner while assailing the aforementioned decision in the present writ application declaring his appointment to be forged has taken a plea that his case was exactly similar as that of Sidheshwar Prasad Singh, holding the post of Basic Health Worker whose services were also terminated earlier in exactly similar manner by the Civil Surgeon cum Chief Medical Officer of Rohtas district with a finding that the appointment of Sidheshwar 8 Prasad Singh was illegal as he had been appointed without issuance of an advertisement in newspaper. The grievance of the petitioner therefore in this writ application is that the consideration and recommendation of the committee constituted by the Health Department pursuant to the order of this Court dated 26.6.2006 in the batch of letters patent appeals and writ applications is both arbitrary and discriminatory inasmuch as the service of Sideshwar Prasad Singh was sought to be regularized among the 91 persons but the petitioner was shown the door on the ground that his appointment letter was forged a finding which is not only patently absurd but also arrived behind his back without even giving any notice and/or opportunity of hearing.
CWJC No. 5651 of 2008
Ramashish Sah Vs. The State of Bihar The petitioner Ramashish Sah is said to have been appointed on 29.4.1981 under the order of In-charge Medical Officer, Bagha-(II), West Champaran on the post of Swasthya Sevak (Health Worker) and was posted in the Primary Health Center, Bagha (II) and his such appointment was also approved by the Civil Surgeon cum Chief Medical Officer, West Champaran at Betiah vide his office letter no. 1530 dated 15.10.1982. It has been claimed by the petitioner that he was subsequently 9 transferred from Bagha to Sitamarhi under the order of Regional Deputy Director of Health, Tirhut Division, Muzaffarpur vide memo no. 374 dated 18.4.1983 and accordingly after being relieved, he had reported before the Civil Surgeon cum Chief Medical Officer, Sitamarhi and after continuing in service for long 19 years, his appointment also came under the zone of enquiry on the ground that since he was appointed after the year 1980, the validity of his appointment was to be looked into in the light of the decision taken by the State Government through its Chief Secretary.
The petitioner claims that he had been served a show cause notice dated 30.5.2000 issued under the pen and signature of Superintendent of Sadar Hospital, Sitamarhi wherein he was asked to explain as to whether his appointment was made pursuant to any advertisement or on the basis of his name being registered and recommended by the concerned employment exchange, and further as to whether the petitioner had appeared in an interview and if so, the name of appointing authority, his designation and the copy of the appointment letter as well as the order of his transfer from one district to another. The petitioner claims to have filed his show cause reply with all information and records on 6.6.2000 but no action was taken thereafter against the petitioner. 10 However he was subjected to another show cause noticed dated 10.5.2003 issued by the Civil Surgeon cum Chief Medical Officer, Sitamarhi vide his office memo no. 1921 dated 10.5.2003 directing the petitioner to explain as to why his service be not terminated on the ground that his initial appointment on 29.4.1981 had been made by the incompetent authority and that the issuance of the order of his confirmation of appointment by the Civil Surgeon, Betiah vide his order dated 15.10.1982 was also doubtful because the office of Civil Surgeon, Betiah had denied the issuance of such order approving/confirming the appointment of the petitioner. In the said show-cause notice, the appointment of the petitioner was also found to be prima facie illegal because the procedure of advertisement and selection through selection committee was not followed.
The petitioner also does not appear to have submitted his show-cause reply to the said notice as also his certificate of educational qualification though the petitioner on his part claims that he had filed his detailed show cause reply on 25.5.2003 justifying his appointment as also confirmation of his appointment. The Civil Surgeon cum Chief Medical Officer, Sitamarhi by an order dated 20.6.2003 had thereafter terminated his service on the ground that the petitioner was appointed on the post 11 of Health Worker by an incompetent authority and as such, the appointment of the petitioner being provisional could at best have continued for a period of three months and as such, his appointment was fit to be cancelled.
The petitioner had assailed the aforementioned order of the Civil Surgeon, Sitamarhi terminating his service dated 20.6.2003 by filing a writ application before this Court being CWJC No. 6919 of 2003 which was allowed by this Court by an order dated 25.7.2003 in a batch of writ applications quashing the order of termination of the petitioner as well with certain directions. It has been stated that as against the aforementioned judgment of the learned Single Judge in the writ application of the petitioner CWJC No. 6919 of 2003 along with other batch cases, the State of Bihar had filed a batch of Letters Patent Appeal including an appeal as against the judgment of the petitioner and all such L.P.As. with a batch of writ applications were disposed of by a common judgment dated 26.6.2006 directing the authorities of the Health Department to reconsider the matter in the light of the judgment of Uma Devi (supra) and when the matter was remitted, the State Government having constituted a committee had gone to regularize the services of 91 persons on the recommendation of the committee whereas in the case of the petitioner, he was 12 denied such regularization of service on the ground that the Committee had found his appointment to be forged, a finding which according to the petitioner was around at without giving him any notice and/or opportunity. The petitioner in this regard has compared his case with one Krishna Murari Singh alleging therein that the same committee with regard to same type of alleged irregularity in the appointment of Krishna Murari Singh had recommended for his regularization and the government had also regularized his service by an order dated 10.9.2007 whereas the same benefit was denied to the petitioner and of his service of more than 22 years were nullified by a whimsical decision of the authorities of the Health Department.
CWJC No. 5799 of 2008
Sanjay Kumar Vs. The State of Bihar & Ors.
The petitioner Sanjay Kumar claims to have been engaged and working in the Health Department on daily wages between 4.9.1984 to 29.8.1984, 15.1.1987 to 22.2.1987, 9.11.1988 to 20.11.1988 and from 25.6.1989 to 20.9.1989 in the Sub-divisional Hospital, Jahanabad under the orders of its Deputy Superintendent. It is said that subsequently he came to be appointed on the post of Male Ward Attendant on 10.5.1990 and his such appointment was ultimately approved and regularized by 13 an order dated 4.4.1991 of the Civil Surgeon cum Chief Medical Officer, Jahanabad. The petitioner who continued to function on the post of Male Ward Attendant with the consequential benefit of payment of salary had been subsequently transferred to Additional Primary Health Center, Turt Telpa and from there he was again transferred after serving there for almost seven years to Primary Health Center, Karpi and subsequently his services were confirmed on the post of Male Ward Attendant by an order dated 28.6.1997. After all this had happened, it appears his initial appointment too was made subject matter of an enquiry and a show-cause notice of Civil Surgeon dated 11.10.2000 alleging his appointment as illegal was issued whereafter he is said to have submitted his show-cause reply on 23.10.2000. The petitioner claims that the genuineness of his appointment was gone into by the office of Divisional Commissioner, Magadh Division, Gaya, who had got it enquired through an Additional Collector, Gaya wherein the said appointment of the petitioner was found to be valid in the report of the Additional Collector dated 17.11.2000. His payment of salary however had remained withheld in view of the order of the Civil Surgeon dated 11.10.2000 and as such, he had moved this Court in CWJC No. 2152 of 2001 which was disposed of by an order dated 1.12.2001 14 directing payment of his salary on verification of his records and on production of documents relating to his appointment and continuation in service. The petitioner is said to have submitted all his documents regarding his appointment on 14.1.2002 whereafter an enquiry to this effect was made by the Civil Surgeon, Jehanabad but service of the petitioner was terminated under the order of Civil Surgeon, Jahanabad dated 27.2.2002 removing him from the post of Male Ward Attendant on the ground that the established norms and procedure for appointment in government service was not followed.
The petitioner had thereafter moved this Court assailing the order of his termination dated 27.2.2002 in CWJC No. 9568 of 2003 which came to be disposed of by a common judgment dated 8.9.2003 quashing the order of termination of the service of the petitioner in a batch case, CWJC No. 4702 of 2003 and its analogous cases. In the case of the petitioner also, the State of Bihar had filed LPA being LPA NO. 155 of 2004 which were disposed of by an order dated 26.6.2006 disposing of in all 293 LPAs and 527 writ petitions by a common judgment dated 26.6.2006 remitting the matter back to the authorities of Health Department to re-examine the whole issue in the light of the judgment of Uma Devi (supra).
The grievance of the petitioner in this writ 15 application is that when the Health Department pursuant to the order of the Division Bench dated 26.6.2006 had constituted a committee of five officials to scrutinize the cases of such persons, the government had regularized services of 91 persons irregularly appointed persons on the recommendation of the Committee but the petitioner was denied the same relief because the committee had held that the appointment of the petitioner was forged. Such finding according to the petitioner was however recorded without even giving him any notice and/or opportunity of hearing. The petitioner has in this context relied on the earlier order of the Director in Chief dated 4.4.2002 to suggest that the Director in Chief of the Health Services of Government of Bihar finding no illegality in the appointment of the petitioner had directed the Civil Surgeon to reinstate the petitioner back in service but the same was not complied because by this time Dr. Manoranjan Prasad, the then Civil Surgeon, Jahanabad had become the Director-in-Chief who according to the petitioner was earlier instrumental in holding the appointment of the petitioner to be forged. Basically he too has also assailed the decision of the committee declaring his appointment on the post of Ward Attendant to be forged on the same ground as that by others namely that at no point of time the appointment of 16 the petitioner was even alleged be forged by any of the authority of the Health Department.
CWJC No. 5976 of 2008 Ram Chandra Singh Vs. The State of Bihar & Ors. The petitioner Ram Chandra Singh was appointed on the post of Family Welfare Worker by an order of the Civil Surgeon, Purnea dated 6.6.1980 and was posted in Primary Health Center, Banmakhi. His services were confirmed by an order dated 19.8.1986 pursuant to the direction of the Joint Secretary of the Health Department of the Government of Bihar dated 30.12.1982 and he was also given time bound promotion by the competent authority who had also transferred him at different places as is clearly recorded in the time to time duly verified entries of his service book.
The petitioner for the first time was subjected to a show-cause notice after continuing in service for more than twenty years wherein he was asked to explain as to why his appointment should not be held illegal and when the petitioner had filed his show-cause reply on 16.8.2000, the same appears to have also been accepted inasmuch as the Civil Surgeon, Purnea, thereafter had passed no adverse order against him but all of a sudden on 11.10.2004 his services were terminated under the orders of Civil Surgeon, Purnia in view of the direction of 17 the State Government by a common order in respect of 416 employees wherein the appointment of the petitioner was held to irregular.
The petitioner had assailed his aforesaid order of termination in CWJC No. 15250 of 2004 which was heard by the Division Bench with a batch of 293 LPAs preferred against the common judgment of the learned Single Judge quashing such order of termination of similarly situated persons and 593 writ petitions by a common judgment of a Division Bench dated 26.6.2006 which had remitted all of them to the Health Department for considering their regularization in service.
It is the case of the petitioner that the five men committee had declared his appointment to be 'forged' without giving any show-cause notice and/or opportunity of hearing to him. In this respect, the specific grievance of the petitioner is that on earlier occasion when the batch of LPAs and writ petitions were under consideration before this Court, the Directorate of Health had filed an affidavit in which is appointment was categorized as an 'irregular' appointment but even then the five men committee had declared his appointment to be 'forged' without giving any notice or affording any opportunity of hearing to him and as such it has been alleged that the five men committee had adopted an arbitrary method of pick and choose in 18 making recommendation for regularizing the services of 91 persons while leaving out the case of the petitioner and similarly situated persons who were also entitled to be given same benefit in the category of irregularly appointed persons. In this context, the petitioner has also cited an example of Hari Narain Yadav, Laboratory Technician alleging discrimination, who according to him was appointed on the post under the order of Superintendent of Sadar Hospital, Purnia though the appointing authority of the said post of Laboratory Technician, a State cadre post, was Director-in-chief. He has thus assailed the recommendation of the five men committee for regularizing the services of Hari Narayan Yadav and its being also accepted by the Government when in his case also, the prescribed procedure of appointment in government service namely advertisement, recommendation of his appointment by a Selection Committee and roaster and reservation policy of the Government was not followed.
CWJC No. 5796 of 2008
Ashok Kumar Vs. The State of Bihar & Ors.
The petitioner Ashok Kumar was appointed on the post of Clerk under the order of Additional Director of Health Services of the Government of Bihar dated 24.10.1983 on the ground that he was a retrenched 19 employee of Malaria Eradication Scheme and was posted in Primary Health Center, Hanterganj in the district of Hazaribagh. He was subsequently transferred under the order of the Additional Director, Health Services of the Government of Bihar from Hanterganj in the district of Hazaribagh to the control of Civil Surgeon, Katihar for his being posted against the vacant post of Clerk and in view of the aforementioned inter-district transfer, the petitioner on being relieved from Hunterganj block on 19.3.1985 had also submitted his joining report before the Civil Surgeon, Katihar on 19.3.1985 who having accepted his such joining had posted the petitioner on the vacant post of Family Welfare Clerk in Barari in the district of Katihar. The petitioner further claims to have continued in Barari block till the month of June, 1989 on the post of a Clerk whereafter he was sought to be transferred under the order of the Directorate of Health while an order issued by the Deputy Director of Health contained in memo no. 827 (22) dated 20.6.1989 placing his services under the Civil Surgeon, Patna. The petitioner is said to him complied his aforesaid transfer order and after being relieved from Barari block in the district of Katihar on 23.12.1989, he had also submitted his joining report before the Civil Surgeon, Patna on 5.1.1990 but his joining was not accepted by the Civil Surgeon, Patna on the ground of 20 want of vacancy on the post of Clerk and as such when the petitioner had represented to the Directorate of Health as against his refusal of his acceptance of joining by the Civil Surgeon, Patna, he was given a new posting by the order of Directorate of Health under orders of the Deputy Director of the Health Department in his memo no. 1083(22) dated 9.10.1990 posting him in Sadar Block at Jahanabad. The joining of the petitioner at Jehanabad was accepted by the Civil Surgeon, Jehanabad after getting the aforesaid transfer order of the petitioner was duly verified by the Director of Health vide letter no. 1321(22) dated 22.12.1990. The Civil Surgeon, Jahanabad had also posted the petitioner as Clerk in the Additional Primary Health Centre, Nehalpur (Kurtha) vide his order dated 28.1.1991 and pursuant thereto, the petitioner had submitted his joining as Nahalpur on 2.2.1991.
The petitioner claims that he was confirmed in service on the post of Clerk by an order dated 31.7.1993 issued by the Civil Surgeon, Jahanabad and in fact he continued in service without any further impediment till the month of September, 2000 but his appointment and continuance at Jehanabad was made subject matter of an enquiry under a show cause notice of the Civil Surgeon cum Chief Medical Officer, Jahanabad dated 11.10.2000 wherein his such appointment was sought to be assailed 21 on the ground of its being illegal/forged. The petitioner thereafter is said to have filed his show-cause reply along with all the relevant papers before the authorities and consequently the Additional District Magistrate, Gaya who was authorized by the Commissioner of Magadh Division to hold an enquiry as with regard to the appointment of the petitioner and others, had declared the appointment of the petitioner to be genuine and in order. The petitioner however being subjected to non-payment of salary from the date of issuance of show-cause notice by the Civil Surgeon, Jahanabad dated 11.10.2000 had moved this Court for payment of his salary in CWJC No. 158 of 2001 which came to be disposed of by an order dated 9.1.2001 directing the Divisional Commissioner, Gaya to consider the case of the petitioner and issue necessary order for payment of salary in view of the fact that the appointment of the petitioner was found to be valid and legal in course of enquiry by the Additional Collector of Gaya. Consequently, the Commissioner of Magadh Division vide his order dated 23.2.2001 had directed the Civil Surgeon, Jahanabad to make payment of salary of the petitioner. It however appears that the aforementioned order of the learned Single Judge in the writ application filed by the petitioner (CWJC No. 158 of 2001) was made subject matter of an appeal at the instance of the State of Bihar 22 which had filed LPA No. 523 of 2001 which was allowed by an order dated 15.10.2001 quashing the order of the learned Single Judge with regard to the direction for payment of salary of the petitioner and the petitioner was directed to file a show-cause reply, if not already filed in pursuance of the show-cause notice issued to him by the Civil Surgeon, Jahanabad, whereafter the said authority, Civil Surgeon, Jahanabad was directed to dispose of the same within two months by deciding the issue of the payment of salary of the petitioner. The petitioner claims that it was only thereafter that the Civil Surgeon, Jahanabad by his order dated 4.1.2002 had terminated the services of the petitioner on the ground that the petitioner was appointed on the post of Clerk under the order of the Additional Director of Health Services but the power of appointment on a class-3 post of Clerk was vested only in the District Head i.e. Civil Surgeon and as such his appointment was illegal.
The petitioner thereafter had moved this Court again now assailing the order of his termination dated 4.1.2002 in CWJC No. 4238 of 2002 which came to be allowed by quashing the order of his termination under a common judgment dated 8.9.2003 whereby and whereunder a large number of writ petitions including the one of the petitioner were disposed of. It was this 23 judgment of the petitioner which was made subject matter of an appeal along with a batch of other appeals which came to be disposed of by a common order dated 26.6.2006 whereby and whereunder 293 LPAs and 527 writ applications were disposed of by the Division Bench by a judgment dated 26.6.2006 remitting the matter back to the authority of Health Department for reconsidering the case of the petitioners and others for regularization of their service in the light of the judgment of Apex Court in the case of Uma Devi (supra). The petitioner has stated that the Health Department constituted a committee of five officers and such committee had recommended to regularize the services of 91 candidates who were found to be irregularly appointed but as with regard to the petitioner, his appointment was held to be 'illegal' by the aforementioned committee on the ground that he was not appointed by competent authority. Such decision of five man committee according to him was taken without giving any notice and/or opportunity to him. He has accordingly also assailed the aforesaid decision of his not being regularized in service by raising a plea of discrimination, inasmuch as, the services of similarly situated 91 persons with identical service history had been regularized. CWJC No. 5929 of 2008 Krishna Kumar Bhargav Vs. The State of Bihar & Ors. 24
The petitioner Krishna Kumar was initially engaged as a Ward Attendant on 1.4.1982 on daily wages and his regular appointment was made on the post of Ward Attendant (Kaksha Pal) under the orders of the Regional Deputy Director of Health Services, North Chhotanagpur, Hazaribagh dated 8.9.1982 and was posted in Referal Hospital, Jainamore. His such appointment also came to be approved by the Civil Surgeon by his letter dated 7.10.1982 and subsequently by an order dated 23.9.1983 issued by the Regional Deputy Director of Health Services, North Chhotanagpur, Hazaribgh, he was promoted on the post of Family Welfare Worker and was posted in Karnar Block. The petitioner appears to have been further promoted on the post of Steno-Typist by the Civil Surgeon cum Chief Medical Officer, Giridih by an order dated 25.4.1987. Subsequently, the petitioner was transferred from Giridih district to Patna district by the Directorate of Health and when in the year 1996, the post of Steno- typist had been abolished, he had been relieved under the orders of the Civil Surgeon, Patna dated 28.11.1996 directing him to report on a newly created Class-III post in the office of Regional Deputy Director of Health, Patna Division, Patna.
The petitioner while continuing under the administrative control of the Regional Deputy Director, 25 Health Services, Patna Division, vide a common show- cause notice dated 3.12.2002 was subjected to an enquiry in which the appointment of the ten persons including petitioner was prima-facie found to be both 'illegal' and 'forged' on the ground of non-publication of advertisement, non-appearance before the selection committee, non-observance of the roaster and reservation, non-preparation of merit list and non-availability of the records of appointment, promotion, posting, adjustment, transfer in the cases of ten persons including the petitioner. The petitioner is said to have filed his show- cause reply on 18.12.2002 but his services were terminated by an order dated 12.5.2003 passed and issued by the Regional Deputy Director of Health Services, Patna Division, Patna on the ground that the prescribed procedure for appointment in Government service such as issuance of advertisement, selection through interview, non-recommendation of the duly constituted selection committee, non-observance of reservation and roaster policy of the Government, order of his appointment/promotion were not observed by the competent authority and his promotion/shifting on the post of Steno-typist from the earlier post of Ward Attendant/Family Welfare Worker being against the rules of the Government, his continuation in service was illegal 26 and by way of favour bestowed on him.
Against such order of termination dated 12.5.2003, the petitioner had filed CWJC No. 5020 of 2003 which was allowed in a batch of writ petitioners by a common judgment dated 8.9.2003 but the State of Bihar had preferred LPA No. 946 of 2003 against the petitioner which came to be disposed of by an order of this Court dated 26.6.2006 disposing all batch of letters patent appeal against common judgment dated 8.9.2003 of the learned Single Judge and 593 writ petitions, all of whom were directed against the similar order of termination and this Court had directed the Government to consider their cases for regularization of service by constituting a five man committee. The said Committee according to the petitioner had however classified and categorized his appointment as 'illegal' without giving him any notice and/or opportunity of hearing and that too without spelling out the nature of illegality in his appointment. The petitioner has in this regard made a grievance that his appointment being found to be 'illegal' in the five men committee report was contrary to the stand taken in an earlier affidavit filed before this Court duly sworn by the Director-in-Chief wherein the appointment of the petitioner was shown to be 'irregular' and not 'illegal'. A general criticism has been made by the petitioner that 27 those employees who were shown to be in the affidavit filed by the Direction-in-Chief before this Court in the category of 'forged' appointees have now been treated as 'irregular' appointees by the five man committee and have been also favoured with a decision of the Government in form of an order of the government dated 10.9.2007 seeking to regularize the services of 91 persons. In this way, he too has assailed the decision with regard to non- regularization of his service by taking the plea of discrimination and lack of any discernible principles. CWJC No. 6270 of 2008 Narendra Lal Deo Vs. The State of Bihar & Ors. The petitioner Narendra Lal Deo having been selected for Vaccinator Training Course, on completion of his training and passing out the examination, was appointed on the post of Vaccinator under the orders of Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur dated 24.2.1990 and having continued in service over 12 years, he was served with an order dated 19.12.2002 directing 38 class-3 and class-4 employees including the petitioner working under the Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur to submit necessary documents along with other relevant evidence as with regard to their appointment within a period of seven days. It is said after 28 the petitioner had submitted his documents, a show- cause notice was slammed on him under the orders of Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur alleging therein that his appointment made on 24.2.1990 by one Dr. R.N. Rai, In- charge, Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur was illegal as the said Dr. R.N. Rai was not authorized to make appointment on the post of Vaccinator. The petitioner had also filed his show- cause reply on 18.6.2003 justifying his appointment made by the competent authority but his services were terminated by an order dated 27.6.2003 passed by the Regional Deputy Director of Health, Tirhut Division, Muzaffarpur in compliance of a purported direction of the State Government on the ground that his appointment was not made by the competent authority and as per prescribed procedure.
The petitioner thereafter had filed CWJC No. 6782 of 2003 assailing his order of termination dated 27.6.2003 which was allowed by a common judgment dated 8.9.2003 in CWJC No. 4702 of 2003 and its analogous cases but he was not reinstated in service as State of Bihar had filed LPA before this Court against the common judgment dated 8.9.2003 assailing also the common judgment. The L.P.A. against the petitioner with 29 other 293 LPAs as also with 591 writ petitions were disposed of by a common judgment dated 26.6.2006 with a direction to the authorities of the Health Department to re-consider the cases of all the affected employees for regularization of their service in the light of the judgment of Apex Court in the case of Uma Devi (supra).
The petitioner too has assailed the recommendation of the five man committee by which 91 persons found to be irregularly appointed were sought to be regularized whereas in his case, the same benefit of regularization of his service was refused on the ground of his initial appointment was itself 'illegal' as it was not made by the competent authority. The grievance of the petitioner is that when the show-cause notice was initially issued by the Regional Deputy Director of Health against 38 persons on the same ground of not being appointed by the competent authority, the decision of the Committee to refuse the regularization of only twelve of them including the petitioner earlier terminated from service, was wholly unjustified as all of them were appointed by the same authority namely Dr. R.N. Rai the In-charge Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur. In this regard, the petitioner has cited specific cases of Akhilesh Kumar Singh, Sri Gunanand Choudhary, Sri Manish Kumar, Sri Sanjay Kumar, Sri 30 Ashok Kumar Thakur, Sri Ramesh Kumar, Sri Shailendra Kumar, Sri Dhirendra Kumar etc. who alike the petitioner were also appointed by the same person and the same authority namely Dr. R.N. Rai, the In-charge Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur and yet were allowed to continue in service. The petitioner in this regard has also alleged the violation of principles of natural justice and lack of transparency in the procedure adopted by the five men committee which is said to have taken a double standard approach in examining and deciding the exactly similar type of appointment.
CWJC 6234 of 2008 Ram Ishwar Shah Vs. The State of Bihar & Ors. The case of petitioner Ram Ishwar Shah is also exactly identical to the aforesaid case of Narendra Lal Deo, petitioner in C.W.J.C. No. 6270 of 2008, inasmuch as, he too is said to have been selected for Vaccinator Training Course and having completed the training by passing the examination, he too was appointed on the post of Vaccinator under the order of Dr. R.N. Rai, In-charge Regional Deputy Director of Health Services Tirhut Division, Muzaffarpur dated 26.3.1990. In his case also after continuation of service for over 12 years, his name was included in the list of 38 Class-3 & Class-4 employees 31 working in the office of the Regional Deputy Director (T) Division, Muzaffarpur all of whom were directed to submit documents relating to their appointment along with evidence and subsequently in his case a show-cause notice was issued to him by the Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur on 4.6.2003 directing him to show-cause as to why his services should not be terminated on the ground that Dr. R.N. Rai, In-charge, Regional Deputy Director, Health Services who had appointed him on the post of Vaccinator, was not authorized and thus incompetent to make such appointment of the petitioner. The petitioner had filed his show-cause reply on 18.6.2003 but his services came to be terminated under the orders of Regional Deputy Director of Health Services, Tirhut Division, Muzaffarpur dated 23.6.2003 only on the ground that his appointment was not made by the competent authority.
The petitioner too thereafter had assailed the order of termination of service dated 23.6.2003 in CWJC No. 6656 of 2003 which was allowed by this Court by a common judgment dated 8.9.2003 in a batch of writ petitions, CWJC No. 4702 of 2003 and its analogous cases but he was not reinstated in services on the ground of pendency of appeal which was filed in all cases allowed by 32 the common judgment dated 8.9.2003. As noted above, the batch of appeals including one against the petitioner were disposed of by a common judgment dated 26.6.2006 with a direction to the authorities of the Health Department to reconsider the cases of all the affected employees for regularization of their service in the light of the judgment of the Apex Court in the case of Uma Devi (supra). The petitioner has stated that a report was submitted by the five men committee constituted by the State Government to consider all such cases and his case was kept under the category of illegal'' appointment on the ground that his appointment was not made by the competent authority and as such, he was not entitled for regularization of service.
The petitioner has assailed the said findings of the report of five man committee on exactly same grounds as in the case of the aforementioned Narendra Lal Deo CWJC No. 6270 of 2008, he too has raised plea of violation of principles of natural justice inasmuch as it has been complained by him that the five men committee before arriving at the conclusion of his being appointment being 'illegal' on account of its being made by an incompetent authority did not issue any notice and/or afford any opportunity of hearing and thus depriving him to explain that there was no illegality in his appointment 33 specially when the similarly situated twenty persons appointed by the same appointing authority namely Dr. R.N. Rai, the then In-charge Regional Deputy Director of Health Services were still being retained in service. CWJC No. 6382 of 2008
Anil Kumar Vs. The State of Bihar & Ors.
The petitioner Anil Kumar was engaged by the Superintendent, T.B. Hospital, Koilwar, Bhojpur by an order dated 10.2.1989 on daily wages against a Class-3 post and subsequently, the said authority, Superintendent of T.B. Hospital, Koilwar, Bhojpur had regularized his service on the post of Clerk by an order dated 30.9.1989. Subsequently, the Superintendent of T.B. Hospital, Koilwar, Bhojpur had confirmed the service of the petitioner on the post of Clerk.
The petitioner has stated that after continuing in service for nearly fourteen years, he was suddenly removed from service by an order of the Civil Surgeon cum Chief Medical Officer, Shahabad dated 5.7.2003 on the ground that his very engagement initially on a post of daily wages in the year 1989 was against the decision of the Government dated 18.6.1993 according to which service of every employee on daily wages appointed after 1.8.1985 were required to be terminated from service.
The petitioner had assailed the aforementioned 34 order of termination of his service dated 5.7.2003 in CWJC No. 11962 of 2003 which was heard and disposed of by a common order dated 26.6.2006 disposing of 293 LPAs and 593 writ petitions with a direction to the State Government to consider their case for regularization of all the employees covered by the judgment in terms of the judgment of the Apex Court in the case of Uma Devi (supra) but the five men committee constituted by the Health Department pursuant to the order of this Court dated 26.6.2006 without giving any opportunity to the petitioner had classified his appointment as an 'illegal' appointment on the ground that he was not appointed by the competent authority and as such, the State Government while regularizing services of 91 persons, in the light of recommendation of five men committee, had refused to regularize his service. The petitioner in this regard has alleged discrimination by citing example of one Ashok Kumar Verma, a Cholera Worker appointed on 2.9.1984 who was writ petitioner in CWJC No. 7072 of 2003 and respondent in LPA No. 239 of 2004 and in whose case the five men committee in its report had categorized his appointment as 'irregular' with a specific remark that his appointment was not made by the competent authority and yet he had been given a favourable treatment of being regularized in service in the 35 list of 91 persons vide order dated 10.9.2007 whereas similar benefit had been refused in the case of the petitioner. Therefore, this petitioner has complained that in his case also, the five men committee has not followed the principles of natural justice and its recommendation to regularize 91 persons as acted upon by the State Government while depriving him from the same relief is both arbitrary and illegal.
Thus from the aforementioned facts of the nine writ petitioners under consideration, it would become clear that all of them are actually aggrieved with the same follow-up action taken by the respondents while considering their case of regularization for service in pursuance of an order of this Court dated 26.6.2006 passed by the Division Bench. It is also not in dispute that all the aforementioned petitioners in different writ applications were initially appointed on Class-3/Class-4 posts and their services were terminated after their working for more than a decade. Some of them had also moved this Court assailing their individual orders of termination in various writ applications which were ultimately allowed by learned Single Judge of this Court by his judgment dated 8.9.2003 in CWJC No. 4702 of 2003 and its analogous cases since reported in 2003(4) P.L.J.R. 282, wherein the learned Single Judge had 36 categorized the cases of those writ petitioners in the following categories:-
"(i) Many of the petitioners have been appointed pursuant to advertisement either in the newspaper or notified on the notice-board of the offices or after calling for their names from the respective Employment Exchange, but they have been terminated for procedural defects.
(ii) Some of the petitioners are said to have been appointed by way of regularization from daily wages to Class IV posts.
(iii) Some of the petitioners are said to have been appointed without advertisement and without calling for their names from the Employment Exchange.
(iv) Some of the petitioners are alleged to have obtained their appointments on the basis of forged documents or some of the appointment letters have been found to be forged and they have been appointed by an authority, who had no competence to do so."
As with regard to the aforementioned categories of the petitioners, all being employees of the Health Department and working in different surgency, the learned Single Judge had made a threadbare discussion and the findings of the learned Single Judge in the aforementioned judgment dated 8.9.2003 having a bearing on the result of these cases needs to be quoted hereinbelow:-
37
"The facts, which have been noticed above, are not in dispute. It is also not in dispute that all these petitioners were appointed by the authorities concerned and they continued in their services for more than a decade.
Now, according to the case of the respondents, the petitioners have been terminated on detection of the procedural wrongs committed by the authorities at the initial stage of the appointment of the petitioners. It is also the case of the respondents that some of the appointments are alleged to have been obtained on the basis of forged appointment letters and the authorities, who had appointed them, were not competent to do so and most of the petitioners were appointed against non-sanctioned posts.
But, at the same time, it appears that all these petitioners continued in services for more than a decade and they were made permanent, their service books were opened and even some of them were given their time bound promotions. Now the State authorities are pointing out the procedural defects in the appointments of the petitioners. Since the petitioners continued in services under the respondents uninterruptedly for several years, the authorities acquiesced in the infirmities, irregularities and the procedural defects allegedly found in the appointment of the petitioners, and, therefore, the authorities were not justified in reopening the matter after a lapse of a decade or more, as the irregularities, 38 infirmities and procedural defects stood cured by efflux of time.
It is true that public posts must be filled up in accordance with the mandate laid down in Articles 14 and 16 of the Constitution and the appointments, if found to be invalid for non- observance of the mandate of law, are required to be nipped at the buds and the same should not be allowed to bloom and flourish giving legitimate expectation to such appointees that they have validly been appointed and confirmed in service.
The State authorities, in this view of the matter, were wholly unjustified and unreasonable in re-opening the matter finding faults in the appointment of the petitioners after long lapse of time and this should not be the motto of the welfare State at this stage, which professes equality before law and right to livelihood, to act arbitrarily and unreasonably. On the contrary, it should be the foremost duty of the welfare state to protect the interest of its citizens and, in no way, it should act to jeopardize the interest of the public at large for the faults of their officials. In no case, it is pointed out by learned counsel appearing on behalf of the State that appropriate action has been taken against such authority, who made such appointments and allowed the appointees to continue in services for long. In the given facts and circumstances of the case, the beneficiaries and the authorities, who conferred such benefits, are equally accountable for the 39 irregular and invalid appointments and the appointments, if any, found to be invalid after lapse of a decade, such appointments, in my opinion, should be saved on equitable consideration.
The Rule of Law is antithesis of arbitrariness and it should be the foremost duty of the Court to enforce the Rule of Law to neutralize the arbitrariness, if any, committed by the State.
There is altogether a different category of cases, where some of the petitioners are alleged to have obtained their services on strength of forged appointment letters, but their cases have been treated at par with the other employees, in whose appointments procedural defects have been found. To deal with such cases, the authorities could have resorted to disciplinary actions against such employees after holding proper inquiries, but, in no case, they could have been terminated summarily.
I have scrutinized the facts of the cases and have also gone through the contents of the respective counter affidavits filed in some of the cases. Basically, it appears that the petitioners have been terminated for procedural defects. In some of the cases, it appears to me that at some stage, the appointments of some of the petitioners were doubted and inquiries were entrusted to the respective Divisional Commissioners and their salaries were withheld pending inquiries. The respective Divisional Commissioners on inquiries found the 40 appointments of those petitioners valid and in some of the cases, even this Court in exercise of its power under Article 226 of the Constitution directed for payment of arrears of their salaries pending inquiries.
Since this Court has examined several cases, which are being disposed of by this order, it has reason to believe that Class III and Class IV employees serving under the Health Department have been terminated in large scale without making alternative arrangements either in field or in the hospitals to cater the need of the people and, thus, it appears to me that the interest of the public at large has been jeopardized."
From the aforementioned discussion by the learned Single Judge, it would be thus clear that he had placed an illegal and irregular appointment in one compartment and forged appointment in a separate compartment. The learned Single Judge in this regard had also posed a specific question in the following manner:-
"I have heard learned counsel appearing on behalf of the parties at length and the question which emerges for consideration, is at to whether the petitioners, who continued in services for ten years or more can be terminated for procedural defects."
The said question was answered in the light of the judgment of the Apex Court and an ultimate conclusion was reached in the penultimate paragraph of the 41 judgment wherein this Court had held that:-
"Keeping in view the facts and the legal propositions, as noticed above, in my opinion, the cases of the petitioners of all the categories, enumerated above, should be considered equitably in view of their prolonged continuance in services and, therefore, it would be most appropriate, in the given facts and circumstances of the cases, to invoke equity in favour of the petitioners to save even invalid appointments and the action of the authorities are held to be highly arbitrary, unreasonable and without jurisdiction."
It has to be taken into account that as with regard to the forged appointment, the learned Single Judge having carved out an exception had gone to record altogether separate conclusion, namely:-
"So far the forged appointments are concerned, the State authorities will be at liberty to identify such cases and take disciplinary action against such persons after holding inquiry and giving an opportunity of being heard to them, but, in no case, their action in terminating such employees without inquiry can be allowed to sustain. In case of Subodh Kumar Prasad V. State of Bihar and others ((2001)3 Patna Law Journal Reports (SC), 187), the apex court has held that obtainment of service on the strength of fake appointment letters constitutes a case for disciplinary action."
From reading of the aforementioned judgment of the 42 learned Single Judge, it would, therefore, be very clear that he had categorized the appointments into two categories, namely, (a) irregular/illegal and (b) forged. While the order of termination of all such petitioners whose appointments were cancelled on the ground of their being irregular and/or illegal were directed to be reinstated in service on the ground of their long continuation in service by invoking the principles of enquiry, the same relief was not given in respect of those petitioners whose appointments were cancelled on the ground of its being forged, inasmuch as, paragraph no.21 of the same judgment had given liberty to the State to identify such cases and take disciplinary action against such persons after holding enquiry and giving an opportunity of being heard. This would also become clear from the operative portion of the judgment of the learned Single Judge dated 8.9.2003 in the case of Sitendra Kumar Singh with analogous cases Vs. State of Bihar & Ors. reported in 2003(4) PLJR 282 in paragraph nos. 22 & 23 which reads as follows:-
"22. Keeping in view the facts and the legal propositions, as noticed above, in my opinion, the cases of the petitioners of all the categories, enumerated above, should be considered equitably in view of their prolonged continuance in service and, therefore, it would 43 be most appropriate, in the given facts and circumstances of the cases, to invoke equity in favour of the petitioners to save even invalid appointments and the action of the authorities, unreasonable and without jurisdiction.
23. In the result, all these writ applications are allowed, orders impugned are set aside and the petitioners are directed to be reinstated. However, the petitioners will not be entitled for their salary/remuneration for the period they have not actually worked."
Thus, when the matter was taken before the Division Bench by the State of Bihar by filing 293 appeals against the aforementioned judgment and the Division Bench while hearing them had also clubbed them with 526 writ applications as would be evident from the first paragraph of the judgment of the Division Bench in the case of State of Bihar & Ors. Vs. Purendra Sulan Kit & Ors. reported in 2006 (3) PLJR 387, whatever has been said in that judgment of the Division Bench will have to be read in the light of the fact that the judgment of the Single Judge in the case of Sitendra Kumar Singh (supra) has not been set aside. It, however, becomes clear from the reading of the judgment of the Division Bench that the parties, meaning thereby writ petitioners as also State of Bihar, had agreed that such cases, appeals as also writ applications could be disposed of in terms of the judgment 44 of the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) reported in 2006 (4) S.C.C. 1 = 2006 (2) PLJR (SC) 363. From reading of the judgment of the Division Bench, it becomes clear that even though the learned single judge had kept the illegal and irregular appointment in one compartment, the Division Bench in the light of the ratio laid down by the Apex Court in the case of Uma Devi (supra) had made it clear that regularization of only such appointment should be permissible which were irregular and not illegal. That is how, the Division Bench in paragraph no.7 had read the judgment of Uma Devi (supra) and incorporated paragraph no.44 in 2006(4) PLJR (SC) 363 (which is paragraph no.53 of the same judgment published in 2006(4)SCC 1) thereof as part of its judgment. It would thus be useful to also quote paragraph no.6 to 11 of the judgment of the Division Bench in the case of Purendra Sulan Kit (supra) which reads as follows:-
"6. 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 & Ors. Vs. Uma Devi & Ors., reported in 2006(2) PLJR (SC) 363 shall govern the cases of the affected 45 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 counsel 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 observations and directions given by the Apex Court in paragraph 44 of the said judgment.
7. 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 regularization if such employees have continued to work for ten years or more without intervention of orders of 46 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. Alongwith 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.
8. On behalf of the State also it was accepted and agreed that the cases of all 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 vs. 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 47 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 file an application disclosing all the relevant reasons for seeking extension of the aforesaid time period.
9. 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 mater is made absolute without any order as to costs.
10. 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 case of Secretary, State of Karnataka vs. Uma Devi (supra) as to which of such affected employees are fit for regularization 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 48 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.
11. 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 & Ors. vs. The State of Bihar & Ors.) was disposed of by judgment dated 9.5.2006 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 vs. Uma Devi for directing the State Government to consider the cases of petitioners of that case for regularization 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 49 is so advised. But they must be conscious of the judgment of the Apex Court, as noticed above, that the exercise of regularization 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."
Thus, in order to test as to whether the cases of the petitioners were considered in the light of the direction of the Division Bench, one will have to be necessarily go into the purport of pagaragaph no.44 of Uma Devi case (supra) which reads as follows:-
"44. One aspects needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments 50 and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacat sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as peer the constitutional scheme."
From the aforesaid passage of the judgment in the case of Uma Devi case, it would be clear that the Constitution Bench had envisaged regularization in terms of the earlier judgment of the Apex Court permissible and possible only of an act which is within power and province of the authority but there has been some non-compliance of procedure or manner which does not go to the root of the appointment, inasmuch as, regularization cannot be said to be mode of recruitment. In this context, the Constitution Bench had laid down that ;
"only something that is irregular for want of compliance with one of the elements in the in the process of selection which does not go to the root of 51 the process, can be regularized and that it alone can be regularized and granting permanence of employment is totally different concept and cannot be equated with regularization."
In the opinion of this Court, the committee appointed by the State Government in terms of the consent order of the Division Bench had not strictly followed the direction in paragraph no.44 of the Uma Devi case (supra) because it had gone to hold even appointment of such persons to be only irregular and not illegal who were appointed without advertisement and undergoing any selection process. In terms of the Uma Devi case, such illegality in their appointment definitely went to the root of the matter because the constitutional right guaranteed to every citizen under Article 14 & 16 of the Constitution of India was infringed but then if the committee had proceeded to treat such persons for whom there was no advertisement or any process of selection undergone as only irregularly appointed the same had to be applied uniformly in cases of all persons including the whose cases were being considered by the committee. Unfortunately, that has not been done and seems to be the main line of attack of the petitioners as with regard to the order of regularization of service of all 91 persons dated 10.9.2007.
It is in this regard that this Court would find that 52 the procedure adopted by the committee for considering the cases of the petitioners and other persons in terms of the order of Division Bench of this Court dated 26.6.2006 in Purendra Sulan Kit (supra) was inherently defective resulting into a double standard approach in the decision making process as would be evident from a closure analysis of the deliberation and recommendation of the committee.
It is not in doubt that pursuant to the aforementioned directions of the Division Bench, the State Government had constituted a committee of five officials headed by the Director-in-Chief of the Health Services and such committee after collecting materials from the appointing/controlling authority of the writ petitioners whose cases were remitted by this Court by the judgment in the case of Purendra Sulan Kit (supra), had prepared a report on the basis of which the services of 91 persons have been regularized by an order dated 10.9.2007. In order to appreciate the grievance of the petitioners, it would be thus useful to quote the relevant portion of the report as placed on record in the counter affidavit filed by the State in CWJC No. 5631 of 2008 which reads as follows:-
^^-------------------ds vkyksd esa 01-01-80 ds ckn LokLF; foHkkx ,oa mlls lEc) fofHkUu {ks=h; dk;kZy;ksa esa fu;qDr dfeZ;ksa dh fu;qfDr dh oS|rk dh tkWp lfefr }kjk dh xbZA 53 Lfefr %& 1- Mk0 euksjatu prqosZnh] funs'kd v/;{k izeq[k]] LokLF; lsok,a] fcgkj] iVukA 2- Jh vejsUnz ukjk;.k flag] fo'ks'k lg&v/;{k lfpo] LokLF; foHkkx] fcgkj] iVukA 3- Jh fl;kjke egrks] mi lfpo] lnL;
LokLF; foHkkx] fcgkj] iVukA
4- Mk0 pUnzs'k fcdze flag] mi lnL;
funs'kd] LokLF; lsok,a] fcgkj]
iVukA
5- Mk0 jfoUnz ukjk;.k ik.Ms;] mi lnL;
funs'kd] LokLF; lsok,a] fcgkj]
iVukA
U;k;kns'k ds vkyksd esa fu;qfDr dh oS|rk dh tkWp fuEu vk/kkj ij dh xbZ%&
(i) in Lohd`r o fjDr Fkk ;k ughaA
(ii) fu;qfDr l{ke inkf/kdkjh }kjk dh xbZ Fkh ;k ughaA
(iii) fu;qfDr ds le; fu;qfDr gsrq fu/kkZfjr "kS{kf.kd ;ksX;rk@vgZrk Fkh ;k ughaA
(iv) 10 o"kZ ;k vf/kd dh yxkrkj lsok Fkh ;k ughaA
(v) dksbZ vU; U;k;kns'k ¼fu;qfDr ds lac/a k esa½ gS ;k ughaA LokLF; foHkkx esa fofHkUu {ks=h; dk;kZy;ksa }kjk miyC/k djk;s x;s fu;qfDr lac/a kh vfHkys[kksa ,oa lEcfU/kr fjV ;kfpdkvksa esa layXu vfHkys[kksa ds vk/kkj ij fd;k x;k gSA ftl vk/kkj ij lacfa /kr dfeZ;ksa dks rhu Js.kh esa ckWVk x;kA
(i)voS|(Illegal) (ii)QthZ (Forged)(iii)vfu;fer(Irregular)
(i) voS/k (Illegal)
1. oSls dehZ ftUgksua s mi;qZDr tkWp dh oS|rk dk dzekad 1 ls 4 rd dh "krZ iwjh ugha dh gSA 2- oSls dehZ ftudk lek;kstu xyr rjhds ls fcuk fu/kkZfjr izfdz;k iwjh fd;s nSfud osruHkksxh ls fu;fer lsok esa fd;k x;kA 3- ,fPNd dk;ZdrkZ ls oxZ&3 ,oa 4 inksa ij lek;ksftr@izksUur dehZA ¼bl lac/a k esa iwoZ esa lh0MCY;w9ts0lh0 la0 10464@93 jke y[ku Bkdqj ,oa vU; cuke jkT;
ljdkj esa Li'V vkns"k ikfjr gS] ftls ,y0ih0,0 esa HkhlEiq'V fd;k x;k gS½A
(ii) QthZ (Forged) 1- oSls dfeZ;ksa ftudh fu;qfDr tkWp dze esa QthZ ik;h x;h rFkk fu;qfDr inkf/kdkjh dk tkyh gLrk{kj vFkok fu;qfDr i= la[;k fuxZr iath ls fuxZr ugha vU;Fkk nksuuks ds jgus ds dkj.k bl Js.kh esa j[kk x;kA 2- oSls dehZ ftUgksaus tkyh@QthZ "kS{kf.kd izek.k i= ds vk/kkj ij fu;qfDr ik;h FkhA 3- oSls dehZ ftuds ikl dksbZ fu;qfDr i=@vkns'k ugha Fkk dsoy tkyh LFkkukUrj.k 54 vkns'k ij ;ksxnku fd;s vkSj lsok esa cus jgsA
(iii) vfu;fer (Irregular) oSls dehZ ftUgksua as mi;qZDr tkWp dh oS|rk ds fu/kkZfjr lHkh "krsaZ ¼dzekad 1 ls 4 rd dks iwjk fd;k gS ,oa ftuds lac/a k esa iwoZ esa ljdkj us fu.kZ; ys fy;k gS] ;k ekuuh; U;k;ky; }kjk iwoZ esa oS| djkj fn;k x;k gS dks vfu;fer dh Js.kh j[kk x;k gS] ftuds fu;fefrdj.k dk izLrko gSA ,y0ih0,0 la0 946@2003 ls lacfa /kr dqy 819 ekeyksa dh tkWp dh x;h ftlesa dze"k%
(i)QthZ (Forged) 358 (ii) voS| (Illegal) 228 (iii) vfu;fer (Irregular) 91 dqy 245 ekeys vfHkys[k viw.kZ ;k vizkIr jgus ds dkj.k lfefr vafre fu.kZ; rd ugha igwWp ik;hA ¼lwph layXu½ ,oa nks vU; ekeys tks voS/k fu;qfDr ls lacfa /kr ugha gSA vuq'kalk %& mijksDr U;k;kns"k ds vuqikyu ds vkyksd esa %& xzqi&,& 1- voS/k ds vuqikyu ds vkyksd esa %&
(i) QthZ rFkk voS/k ik;s x;s dehZ;ksa dh lsok lekfIr vkns'k ds fuxZr dh frfFk ls gh izHkkoh ekuh tkuh pkfg, rFkk Hkfo"; esa mudk fu;qfDr ls lacfa /kr dksbZ nkok ekU; ugha gksxkA
(ii) ftu laLFkkuks@ a {ks=h; inkf/kdkjh;ksa }kjk psrkouh ds ckn Hkh vfHkys[k ugha miyC/k djk;s x;s gSa] mUgsa nf.Mr djus gsrq ljdkj ls vuq'kalk dh tkrh gSA
(iii) tkWp ds dze esa lfefr us ;g ik;k dh {ks=h; dk;kZy;ksa esa lacfa /kr vfHkys[k dfri; dkj.kksa ;Fkk ck<+ esa Mqcuk] vkxtuh] pksjh gks tkuk] [kks tkuk] fofHkUu ljdkjh ,tsUlh;ksa }kjk tIr dj ysuk vkfn&vkfn dkj.kksa ls vuqiyC/k gSA lkFk gh lfefr }kjk ;g Hkh vuqHko fd;k x;k fd o'kZ 80 ds ckn LokLF; foHkkx ds fofHkUu {ks=h; dk;kZy;ksa esa QthZ voS/k fu;qfDr dh izfdz;k dk ekfQ;kdj.k gks pqdk FkkA lkFk gh ;g mYysf[kr djuk gS fd ekuuh; mPp U;k;ky; ds mDr vkns'k ds iw.kZ vuqikyu gsrq oSls dehZ ftudh lsok lekIr gqbZ gS ij ,y0 ih0 ,0 dh lwph esa ugha gS@dksVZ dsl0 ls ckgj gS rFkk tks 1-1-80 ds ckn fu;qDr gS tks orZeku esa dk;Zjr gS dh tkWp Hkh dh tkuh gSA xzqi&ch& 1- vfu;fer ik;s x;s dehZ ds lEcU/k esa %&
(i) vfu;fer Js.kh ds dfeZ;ksa dh lsok fu;fer fd;s tkus ij ljdkj fu.kZ;
ysuk pkgsxhA
(ii) vfu;fer Js.kh ds dfeZ;ksa dh lsok dk lekfIr ls fu;fer gksus dh vof/k dk fu;fefrdj.k fd;k tkuk pkfg,A fu;fer dh xbZ vof/k dh x.kuk 55 isU'ku vkfn gsrq dh tk;sxh ijUrq bl vof/k dk osru dk Hkqxrku ugha fd;k tkuk pkfg,A
(iii) fu;fer fd;s x, deZpkfj;ksa dh lsok mlh laLFkku dks miyC/k djk;h tkuh pkfg, tgkW ls mudh lsok lekIr dh xbZ FkhaA vxj ml laLFkku esa orZeku esa in fjDr u gks rks lac/a khr flfoy ltZu vius Lrj ls mudh inLFkkiuk vius ftys esa fjDr LFkku ij djsaxsA vr% mi;qZDr izLrko ds lkFk ;g Js'dj gksxk dh ftu ekeyksa dh tkWp vc rd fofHkUu dkj.kksa ls ugha dh tk ldh gS dks mijksDr tfVyrkvksa dks ns[krs gq, lfefr dk ;g vuqjks/k@lq>ko gS fd ,sls ekeyksa dh tkWp fdlh vU; ,tsUlh vFkok fuxjkuh ;k izeaMyh; vk;qDr ds v/khu lfefr cukdj djk ysus ij fopkj fd;k tk ldrk gSA g0@& g0@& ¼g0@& euksjatu prqosZnh½ ¼Jh vejsUnz ukjk;.k flag½ ¼Jh fl;kjke egrks½ ¼g0@& Mk0 pUnzs"k fcdze flag½ v/;{k lg&v/;{k lnL; lnL;
¼g0@& Mk0 jfoUnz ukjk;.k ik.Ms;½ lnL;** It has to be noted that two members of the Committee, namely, Amrendra Narayan Singh and Siyaram Mahto, the Special Secretary and the Deputy Secretary of the Health Department had not put their signature and thus, the said report can at best be said to be a report of three persons, namely, the Director-in-Chief and two Deputy Directors. As quoted above, the Committee came to the conclusion that out of 819 matters remitted by the Division Bench of the High Court, 358 were forged, 228 were illegal and only 91 were irregular whereas in the case of 245, no decision could be taken due to non-availability of the records. On the basis of this report, the State Government had issued an order on 10.9.2007 for regularizing the services of 91 persons and 56 the grievance of the petitioners is in respect of the said report of the Committee as accepted by the Government choosing to regularize only the services of 91 persons and denying them the same benefit.
The common grievance which has been raised by all the petitioners is that they were not given any opportunity of hearing by the Committee or by the Health Department before passing the order dated 10.9.2007 choosing to regularize only 91 of them though their cases also stand almost on the identical footing as that of the 91 persons.
In the opinion of this Court, such grievance of the petitioners is quite legitimate and this Court would find that if their order of termination had been set aside by the learned Single Judge with a direction for the reinstatement in service and that part of the order of Single Judge was not set aside by the Division Bench, the writ petitioners could not have at least denied an opportunity of hearing, inasmuch as, the ultimate decision taken by the State Government on the basis of report of the Committee had the effect of restoring the position of their services remaining terminated which has also been successfully assailed by them in the writ petition.
In the counter affidavit that has been filed by the 57 Director-in-Chief of the Health Services in the case of Aspujan Singh, the modus-oprendi adopted by the Health Department pursuant to the direction of the Division Bench dated 26.6.2006 has been explained that after the Government had constituted the five men committee to look into the illegality of the appointments of all 819 cases remitted by this Court, the office of the Director-in-Chief had only collected information from the respective officials of the petitioners where they were shown to have been working last at the time of termination of their services. From the counter affidavit, therefore, it is clear that at no point of time, the Health Department or its five men committee had given any opportunity to the petitioners either in the matter of showing that their appointment was neither illegal nor forged and was only irregular which could have been regularized in terms of paragraph no.44 of the judgment of the Uma Devi (supra).
In the opinion of this Court, giving notice and/or opportunity of hearing to the petitioners before taking of the decision on 10.9.2007 while accepting the report of 91 persons and therefore, indirectly rejecting the cases of the petitioners for regularization was the requirement of doctrine of fair play and natural justice. In this context it has to be noted that the Committee had evolved the following five points for examining as to whether the 58 appointment was irregular, illegal and forged:-
(i) Whether such appointment was made against vacant and sanctioned post?
(ii) Whether such appointment was made by the competent appointing authority?
(iii) Whether at the time of appointment, the person concerned had fulfilled the prescribed condition of eligibility including educational qualification?
(iv) Whether the person had continued in service for a period of ten years or more?
(v) Whether there is any order of any court of law for appointment of the person concerned?
For examining and applying all the aforementioned five points fixed by the Committee, it was necessary for the Health Department and/or the Committee to give an opportunity to all the persons including the petitioners whose cases were remitted by this Court to show and establish that they had requisite qualification at the time of their appointment and their such appointment was made against the vacant sanctioned post by a competent authority and had continued in service for a period of ten or more years. The unilateral decision taken by the Committee on the basis of the document/information given by the office of the Civil Surgeon or controlling authority can hardly be a substitute for an opportunity of hearing to the person 59 concerned whose continuation in service was going to be decided by the Health Department. It was in fact necessary because the report of the Committee would go to show that there is a blurred line of division in the case of illegal/irregular appointment. From the report of the Committee, it would be found that while one set of persons who were directly appointed against the post without fulfillment of the prescribed procedure i.e. advertisement, selection procedure were treated to be irregularly appointed but those who were adjusted from daily wages engagement by committing the same anomaly were treated to be illegal appointment. Similarly, absorption/promotion of the Voluntary Health Worker was dubbed to be illegal appointment but direct appointment on such Class III & IV posts was treated to be irregular appointment.
In the opinion of this Court, thus the classification of illegal and irregular appointment was itself wholly artificial and was capable of displacing a person easily from the category of irregular to illegal or vice-versa.
What would be an illegal and irregular appointment is no longer res integra. A deficiency at the initial stage in the appointment which cannot be cured at any point of time will be an illegal appointment whereas 60 the curable deficiency at the stage of initial appointment would be an irregular appointment. That is how, the law has proceeded to define these two categories of appointment including in the case of Uma Devi (supra).
It is this aspect of the matter which had necessitated extending of an opportunity of hearing to the concerned persons before the Committee and/or the State Government could have taken a final decision in terms of the order of this Court by which alone the petitioners and others could have shown that they too were not covered by the category of illegal or forged appointment and their appointment was only irregular. Extending of such opportunity in fact had became more necessary to find out the nature of forged appointment, namely :-
(a) Appointment letter did not bear the genuine signature of the appointing authority or
(b) Such appointment letters having been not issued in the prescribed manner from the official dispatch register or
(c) Such persons whose appointment was made on the basis of forged/fabricated certificate of educational examination or
(d) Such persons were never appointed through any appointment letter but had continued in service on the basis of forged order of transfer.
The Committee, therefore, had to identify three categories of employees only after giving an opportunity on 61 the basis of the principles decided categorizing the three types of appointment and after soliciting information in respect of them or the petitioners and others whose cases were remitted by this Court for considering the cases of their regularization. In absence thereof, one line finding of the Committee as has been brought on record by the State in the counter affidavit can hardly amount to fair consideration by the Committee and in fact, when the report of the Committee also does not bear the signature of two of the five members and both of them being the senior functionaries of the Government, there would be a big question mark on the entire procedure adopted by the Government in the matter of consideration of the cases of regularization of services of the petitioners and similarly situated persons.
This Court has also carefully examined the reasonings given by the Committee for holding 91 persons to be irregularly appointed wherein apart from the common conclusion of appointment procedure not followed in their cases, even appointment of such persons have been categorized as irregular who had a higher qualification being a doctor in Indian Medicine or whose appointment was not made by competent authority but his case was of a similarly situated person as that of one whose case was decided by the High Court in LPA No. 943 62 of 1995. If these lists of irregular appointments are compared with the list of illegal appointment prepared by the Committee, it would be found that similar nature of appointment of the person whose appointment was not said to be made by the competent authority, has been categorized as illegal appointment without considering as to whether they too had any protection or patronage of a similar order of the High Court. This Court in fact is not in a position to appreciate one line observation/opinion of the Committee for holding such appointment to be either forged or illegal or irregular but then the case of Aspujan Singh (CWJC No. 5631 of 2008) by itself would be sufficient to show as to how the Committee has acted without any rationale and settled principles.
It is the case of Aspujan Singh that he was appointed on the basis of an order passed by the Director, Health Services dated 23.6.1981 on the post of Basic Health Worker under the order issued by Civil Surgeon cum Chief Medical Officer, Chaibasa vide an order dated 24.7.1981. The petitioner Aspujan Singh has also stated that he continued in service for the next 22 years and only on 8.5.2003, he was asked to submit a show-cause as to why his services be not declared as an illegal as his appointment was made without issuance of a advertisement. It is the case of the petitioner Aspujan 63 Singh that when he had submitted his show-cause reply, the same was rejected by an order dated 7.6.2003 and his services were terminated with a specific finding of the concerned Civil Surgeon that his appointment had to be held illegal as it was found from the records that such appointment was made without any advertisement. The grievance of the counsel appearing on behalf of the petitioner Aspujan Singh, however, is that now in the five men committee's report, his case has not been included in the list of illegal appointment rather it has been declared to be 'forged'. It would be quite interesting at this stage to note here that the stand of the respondents in the present counter affidavit filed in the case of Aspujan Singh, which in fact has been filed only in his case. In the said counter affidavit, it has been stated that the appointment of Aspujan Singh was found to be forged "for the reason that the date of joining as shown by the petitioner is 23.7.1981 whereas the appointment letter shows the date of appointment to be 24.7.1981. The show-cause filed by the petitioner before the Civil Surgeon, Rohtas shows his date of joining as 23.6.1981 one month before the date of issuance of the appointment letter. Accordingly, the committee found the case of the petitioner to be „forged‟. It is thus clear that the respondents are not at 64 all clear about the expression 'illegal' and 'forged' and the same person Aspujan Singh in the order of his termination of service was earlier shown the door on the ground that the appointment was illegal because of non- publication of the advertisement and now when the case was sought to be considered for his regularization in view of the direction of this Court in the order of Division Bench dated 26.6.2006, the same appointment had become forged on the basis of date of joining vis-à-vis issuance of appointment letter. Such unilateral decision in Aspujan Singh case by way of elucidation would therefore go to show that had the respondents after submission of five men committee report (which in fact is literally a three men committee report) given a liberty to him (Aspujan Singh), he could have easily explained that when the Director of Health Services had recommended for appointment by an order dated 23.6.1981 by the Civil Surgeon, Chaibasa and he had submitted his joining at Chaibasa on 23.7.1981 a follow-up order for his appointment by way of compliance of the order of the Director of Health Services was passed and issued by the Civil Surgeon, Chaibasa on 24.7.1981 which in no way could have held to be a forged appointment though it may be irregular or even illegal on account of his direct appointment without undergoing the procedure of 65 advertisement and selection by the appointing authority. It is thus clear that non-compliance of principles of natural justice has really prejudiced the petitioner Aspujan Singh whose appointments have now been declared to be either illegal for his termination or forged for his regularization or both for the purposes of this writ petition.
In the opinion of this Court, the appointment of Aspujan Singh at best can be either irregular or illegal or both but the same can in no event be declared to be forged because there is no denial to this fact that he was appointed in service on the basis of an order of the Director of the Health Department dated 23.6.1981 through a letter of appointment by the competent authority, namely, Civil Surgeon of the Chaibasa district who had merely issued the consequential letter of appointment on 24.7.1981. As a matter of fact, this very appointment letter dated 24.7.1981 as contained in annexure-2 to the writ application would go to show that the date of joining of the petitioner Aspujan Singh was 23.7.1981 which was based on the earlier order of the Director of the Health Services as contained in letter no. 987 dated 23.6.1981. Such appointment cannot be declared to be forged because it is no one's case that neither the Director nor the Civil Surgeon had issued such 66 appointment letter and the petitioner got appointed himself without there being any such appointment letter actually issued in his name. It is thus apparent from the only case in which the State has filed counter affidavit that the category of 'forged' made by the three of the five men committee is itself based on no rationale and does not explain the allegation of discrimination pleaded by him while citing the similar case of Sidheshwar Prasad Singh, one of the 91 employees regularized by the order of the Director in Chief dated 10.9.2007 even though in his appointment also the procedure advertisement and selection was not followed.
A cryptic one line comment in the report of the committee in the case of the petitioners thus cannot be approved by this Court so as to take away valuable right of the petitioners to be considered for the regularization in service in the light of the direction given by the Division Bench of this Court dated 26.6.2006. It has to be remembered that at least 272 persons out of 819 persons including some of the petitioners herein were such persons whose order of termination had already been set aside by the learned Single Judge with a direction to reinstate them in service. Such order of the Single Judge having been not set aside and the matter being remitted by the Division Bench in the order dated 26.6.2006, could 67 not have been decided in a perfunctory manner where the constituted five men committee, out of which two members also did not approve the report and yet the Government took a decision only to regularize only 91 persons among 819 without passing any order as with regard to the rest of them.
The principles of natural justice cannot be embodied in a straight jacket formula but when its non- compliance results into a definite prejudice, the non- adherence to the principle of natural justice by itself would vitiate the entire decision making process. In the present set of cases when the rights of the successful writ petitioners were sought to be taken away by declaring them either to be illegal or forged, they were at least required to be informed as to on what materials and on what grounds, their appointments were being held to be either illegal or forged. This having been not done, this Court is constrained to hold that the entire exercise made by the respondents in rejecting the case of the petitioners for regularization of their services by declaring their appointment to be either illegal or forged, is unsustainable in the eyes of law basically because such findings have been arrived and a consequential decision has been taken without giving notice and/or affording an opportunity of personal hearing.
68
This aspect of the matter was gone into by the Apex Court in the case of Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant reported in AIR 2001 SC 24 where the Apex Court while explaining the sanguine object of doctrine of natural justice had laid down the law in the following words:-
"The doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. In Baldwin case the doctrine was held to be incapable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. A question arises as to who is a reasonable man. In India, a reasonable man cannot but be a common man similarly placed.
Although over the years there has been a steady refinement as regards the doctrine of natural justice but no attempt has been made and, in fact, cannot be made, to define the doctrine in a specific manner or method. Strait- jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to betaken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact 69 the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action.
........ It is fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. The judicial process itself embraces a fair and reasonable opportunity to defend though the same is dependent upon the facts and circumstances of each individual case......"
In fact the Apex Court in the case of State of Maharashtra Vs. Jalgaon Municipal Council (2003) SCC 1659 has gone to hold that basic principles of natural justice should be embolden to suit peculiar situations. The Apex Court in that case in fact had gone to hold that:-
"It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as a rule of universal obligation that all administrative acts or decisions affecting rights of individuals must comply with the principles of natural justice and the person or persons sought to be affected adversely must be afforded not only an opportunity of hearing but a fair opportunity of hearing. The State must act fairly just the same as anyone else legitimately expected to do and where the State action fails to satisfy the test it is liable to be struck down by the courts in exercise of their judicial review 70 jurisdiction."
The concept, meaning, object, scope and applicability of natural justice has also been explained by the Apex Court in the case of Canara Bank Vs. Debasis Das reported in AIR 2003 SC 2041 where adherence to principle of natural justice has been explained in the following terms:-
"Natural justice has been variously defined. It is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
Over the years by a process of judicial 71 interpretation two rules have been evolved as representing the principles of natural justice ein judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is "nemo judex in causa sua" or "nemo debet esse judex in propria causa sua" that is, "no man shall be a judge in his own cause". The second rule is "audi alteram partem", that is, "hear the other side". A corollary has been deduced from the abfove two rules and particularly the audi alteram partem rule, namely "qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit" that is "he who shall decide anything without the other side have been heard, although he may have said what is right, will not have been what is right"
or in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done".
Notices is the first limb of the principle that no one should be condemned unheard. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it 72 is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time......."
The case in hand is in fact is squarely covered by the ratio laid down by the Apex Court in the case of Onkar Lal Bajaj Vs. Union of India reported in AIR 2003 SC 2562 where the Apex Court was considering the cancellation of allotment of a large number of Petrol pumps and gas agencies by one stroke of pen on the basis of one line declaratory statement of the Prime Minister on the floor of the Parliament holding that all such allotment of petrol pump and gas agencies from the year 2000 onwards were illegal and as such the Government had taken a decision to cancel all of them by a common decision. Striking the said decision of the Central Government and holding it to be patently arbitrary, the Apex Court had laid down the law in the following words:-
"The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision- making was motivated on the consideration of 73 probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actins. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it the decision may look legitimate but as a matter of fact the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate."
As observed above, the petitioners were afforded no opportunity before a decision was taken that their services were not fit to be regularized on the ground that their appointments were either illegal or forged. Unfortunately, in the counter affidavit which has been filed only in the case of Aspujan Singh (CWJC No. 5631/2008) also does not indicate that after the matter was remitted by this Court by the common order dated 26.6.2006, the petitioners and/or similarly situated other persons (819 of them) were given notice and/or opportunity of hearing. In the case of Shravan Kumar Jha Vs. State of Bihar reported in AIR 1991, S.C. 309, the Apex Court in fact while dealing with a similar situation 74 had held that even where it was held that the principle of natural justice had to be complied even where it was alleged that the appointment of the persons was made by an incompetent authority.
Thus, this Court having given anxious consideration to the facts of the present case is
constrained to hold that the decision of the State Government refusing to regularize the services of the petitioners on the ground that their appointments were either illegal or forged cannot be sustained both on the grounds of violation of the principle of natural justice as also apparent discrimination meted out to the petitioners as against similarly situated 91 persons regularized by the order dated 10.9.2007.
In the background of whatever has been noted above, this Court, therefore, also must hold that the case of the petitioners have not been considered in a fair and objective manner as directed by the Division Bench of this Court in the order dated 26.6.2006 and even in terms of paragraph no.44 of the judgment of the Apex Court in the case of Uma Devi (supra).
This Court, therefore, would once again direct the Principal Secretary cum Health Commissioner to himself reconsider the case of the petitioners in the light of the materials to be produced by the petitioners showing 75 that their appointment was neither 'illegal' nor 'forged' and that they too alike 91 persons being only irregular appointees (as coined, understood and applied by the committee) were entitled to be regularized in service. It would also be open for the petitioners to raise and substantiate the plea of discrimination as against those 91 persons who have since been regularized by the order of the Direction-in-Chief dated 10.9.2007 in terms of the report of the Committee or any one else alike them who have been appointed after them and are still being allowed to continue in service as for example in the case of the petitioners Narendra Lal Deo (C.W.J.C. No. 6720 of 2008) and Ram Ishwar Sah (C.W.J.C. No. 6234/2008) .
The Principal Secretary cum Health Commissioner in his turn would consider the relevant materials produced by the petitioners in the light of the materials on record in a fair and objective manner without being prejudiced by the one sided findings of the Committee and if the Health Commissioner would find the case of the petitioners to be identical to any of those 91 already regularized by the Director-in-Chief by an order dated 10.9.2007 or any other similarly situated persons still continuing in service he would pass an order directing for similar regularization of service of one or more petitioners by taking into account that whatever illegality 76 were found in the initial appointment of those 91 persons had stood condoned by the order of their regularization in service dated 10.9.2007 and thus is a benchmark binding on the government in all similar cases. In the event, the Health Commissioner would however find that the services of the petitioners can still not be regularized on any ground including the one that their cases are not similar/identical to the aforesaid 91 persons he will be required to record reasons for such rejection.
With the aforementioned observations and direction, all of these writ applications are disposed of.
Patna High Court (Mihir Kumar Jha, J.) Dated the 13th of May, 2008 Rsh/A.F.R.