Patna High Court
Sanoj Kumar & Ors vs The State Of Bihar & Ors on 24 January, 2017
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11173 of 2016
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1. Sanoj Kumar, s/o Sri Ramesh Prasad, Resident of Village- Sabeyan, P.O. Rajandih,
P.S Rajpur, District- Rohtas.
2. Md. Ajij Ahmed, S/o Md. Izhar Ahmed, Resident of Village- Babhangawan, PS-
Kudra, District- Kaimur.
3. Md. Mahmoob Ahmed, s/o Md. Gamgar Ahmed, Resident of Village- Jorawarpur,
P.O.- Baradih, District- Rohtas.
4. Madan Singh, S/o Late Sakal Singh, Resident of Village- Betari, P.S- Bhabhua,
District- Kaimur.
5. Santosh Kumar Gupta, S/o Sri Jagdish Sah, Resident of village + P.O. Bhabhua,
Ward No. 10, District Kaimur.
6. Anil Kumar s/o Sri Ram Badan Singh, Resident of village- Chhattwan, P.O.
Fakarabad, P.S- Kudra, District- Kaimur.
7. Satish Kumar Pandey, S/o Late Jagdish Pandey, Resident of Village- Sikhwaripur,
P.O. Sonhan, P.S.- Bhabhua, District- Kaimur.
8. Md. Anish Hussain, S/o Md. Abbas Hussain, Resident of Village- Chhawani Mohalla
Ward No. 10, District- Kaimur.
9. Rahmat Alam, S/o Mir Rahim, Resident of Village- Chainpur, P.S. Chainpur,
District- Kaimur.
10. Ajay Kumar, S/o Late Bharat Singh, Resident of Village + P.O. Bhabhua, Ward No.
11, District- Kaimur.
11. S. Mohammed Raj, S/o S. Mohammed Izhar, Resident of Village- Buxar Ward No.28,
District-Buxar.
12. Sunil Kumar Gandhi, S/o Sri Radheshyam Gupta, Resident of Village- Barka Gaon,
P.O. + P.S.- Belawan, District Kaimur.
13. Pritam Tiwari, S/o Sri Ramashankar Tiwari, Resident of Village-Siwo, P.O + P.S.
Bhabhua, District- Kaimur.
14. Manoj Kumar Paswan, s/o Satyanarayan Paswan, Resident of Village- Naugarh, P.O.
Kharainda, District- Kaimur.
15. Sabnam Khatoon, D/o Sahnawaj Ansari, Resident of Village + P.O. Sonhan, District-
Kaimur.
16. Sunil Kumar Paswan, S/o Sri Ramlal Paswan, Resident of Village- Karma,
Mahuwari, P.S. Sonhan, District- Kaimur.
17. Dharmendra Kumar, S/o Shri Ayodhyay Prasad, Resident of Village +PO- Mahuwari,
P.S. Sonhan, District- Kaimur.
18. Kumari Sandhya Sinha, W/o Pramod Ji Anand, Resident of Village + P.O. Bhabhua,
District- Kaimur.
19. Lakshmi Naryan Paswan, S/o Jagropan Paswan, Resident of Village- Samhuta, P.O.
Sadokhar, P.S. Chenari, District- Rohtas.
20. Anil Kumar Singh, S/o Sri Rajendra Prasad, Resident of Village- Chhotki Katara,
P.O. Mujan, District- Kaimur.
21. Naz Praveen, D/o Barasat Hussain, Resident of Village + P.O. Bhabhua Ward No. 15,
District- Kaimur.
22. Pramila Kumari, D/o Mithailal Ram, Resident of Village + P.O. Bhabhua Ward No.
14, District- Kaimur.
23. Sabita Devi, W/o Bajrangi Ram, Resident of Village + P.O. Bhabhua Ward No. 14,
District- Kaimur.
24. Ramchandra Paswan, S/o Sri Dinanath Paswan, Resident of Village- Sonbarsa, P.O.
Khajura, District- Kaimur.
25. Dwarika Prasad, S/o Narsingh Paswan, Resident of Village- Babura, P.S. Sasaram,
District- Rohtas.
26. Binod Kumar Sinha, S/o Uma Shankar Prasad, Resident of Village + P.O. Bhabhua
Ward No. 10, District- Kaimur.
27. Sheomurat Sah, s/o Sri Kariman Sah, Resident of Village -Rudrawar Kala, P.O.
Rudrawar Kala, District- Kaimur.
28. Janta Devi, w/o Sheomurat Sah, Resident of Village- Rudrawar Kala, P.O. Rudrawar
Kala, District- Kaimur.
Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 2
29. Manoj Kumar Sinha, S/o Yamuna Lal Resident of Village- Bhabhua Ward No.4,
Professor Colony, District- Kaimur.
30. Surendra Kumar Singh, S/o Vijay Kumar Singh, Resident of Village- Bhabhua Ward
No. 11, Chakbandi Road, District- Kaimur.
31. Rajeshwar Prasad Sharma, S/o Late Sheoji Sharma, Resident of Village- Siwa, P.O.
Bhabhua, District- Kaimur.
32. Md. Tabaraq Hussain, S/o Md. Sidiqui Ansari, Resident of Village- Bhabhua Ward
No,23, District- Kaimur.
33. Ram Kunwar Ram, S/o Late Jhuri Ram, Resident of Village- Dumdum, P.O. + P.S.
Bhabhua, District- Kaimur.
34. Sobha Devi, W/o Mahendra Ram, Resident of Village- Bhabhua Ward No. 14,
District- Kaimur.
.... .... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health & Welfare,
Government of Bihar, Patna.
2. The Superintendent, Sadar Hospital, Bhabhua, Kaimur.
3. The Chairman -Cum- Civil Surgeon, Patient Welfare Committee, Sadar Hospital,
Kaimur at Bhabhua, District- Bhabhua.
4. The Deputy Superintendent -Cum- Secretary, Patient Welfare Committee,
Sadar Hospital, Kaimur at Bhabhua, District- Bhabhua.
5. The District Magistrate, Kaimur at Bhabhua, District- Bhabhua.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Prasad Singh, Sr. Adv. with
Mr. Mukesh Kumar Singh, Adv.
Mr. Rajeev Kumar Singh, Adv.
For the Respondent/s : Mr. Krishna Chandra Jha, AC to AAG-8
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 24-01-2017 Heard Mr. Rajendra Prasad Singh, learned senior counsel who appears with Mr. Mukesh Kumar Singh for the petitioners and Mr. Krishna Chandra Jha, learned Assisting Counsel to Additional Advocate General No.8 for the State.
The petitioners are aggrieved by the orders of termination impugned at Annexure-1 series which are founded on a direction issued by this Court passed in CWJC No.4303 of 2015 as well as the order passed by the District Magistrate, Kaimur in Misc. Case No.45 of 2015-16, copies of which are annexed as Annexure-6 and Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 3 Annexure-2 respectively to the writ petition. A rather strange sequence of events accompanies the present contest.
According to the petitioners, following a local advertisement they were appointed as Health Worker in Sadar Hospital, Bhabhua, district- Kaimur on different dates in the year 2009-10. According to the petitioners, the appointing authority is the Civil Surgeon who is also the Chairman of the District Health Society. The appointments of the petitioners were made against the post of Ward Attendant, Guard, Orderly, Swagtak, Mamta Workers. A Public Interest Litigation was filed by a public spirited person in this Court questioning these appointments arising from CWJC No.8068 of 2011 (Nand Lal Ram Vs. The State of Bihar). The Division Bench in consideration of the nature of controversy gave liberty to the said writ petitioner to approach the District Magistrate
-cum- Collector, Kaimur at Bhabhua raising his grievance and it was directed that if such application is filed, the District Magistrate, Kaimur would examine the matter and in case there was any irregularity/illegality in the appointment, then necessary corrective measures be taken within two months thereafter. It is undisputed that no complaint thereafter was filed by the said Nand Lal Ram before the District Magistrate, Kaimur and the petitioners continued on their posts. The operative portion of the judgment runs as follows:
"Considering the nature of the controversy Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 4 this Court feels that the petitioners should move before the learned Collector -cum- District Magistrate, Kaimur at Bhabua at the first instance by raising his grievances and irregularities/ illegalities have been committed. If such an application is filed before respondent no.4 within a period of four weeks from today, the said respondent shall be obliged to look into the matter and also look into as to whether there has been any irregularity/illegality in making such appointments. If it is found that allegations made by the petitioner are true, then necessary corrective measures should also be taken within a period of two months thereafter. It goes without saying that since the matter relates to appointments to the said posts which are of public importance and beneficial to the messes at large, efforts should also be made for appointment in accordance with law expeditiously within the shortest possible time after following the prescribed procedure so that public interest does not suffer.
With the aforesaid directions and observations this application stands disposed off."
In an around the year 2011 the petitioners were orally asked not to work which was followed by an order dated 15.6.2012 of the Civil Surgeon -cum- Chief Medical Officer, Kaimur at Bhabhua terminating the appointment of one Dharamsheela Devi who was appointed as Mamta Worker. She approached this Court in CWJC No.11954 of 2012 (Dharamsheela Devi vs. The State of Bihar) and a Bench of this Court taking note of the Division Bench opinion in the case of Nand Lal Ram (supra) held as such:
A Division Bench granted liberty to represent individual irregularities and take corrective measures. Misconstruing the order of the Court, the respondents wrongly opined that the Court had carte-blanche directed termination en masse leading to the issuance of the impugned order.
Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 5 Learned counsel for the State submits from the impugned order that a three man committee had examined the appointments and submitted a report dated 18.4.2012 that the appointments were irregular, without advertisement and roster clearance.
The petitioner was appointed as "Mamta Worker". The appointment is not in government service but contractual in nature, as aid and assistance in implementation of a welfare scheme of the State Government for promoting the health of woman sponsored by the State Health Society. The nature of the appointment and duties at present are not considered necessary for further discussion. The petitioner has demonstrated that the appointment was made after advertisement by the Patient Welfare Committee and that she belonged to the concerned community, which naturally appears to have been motivated by the constitution of the beneficiaries whom they were supposed to assist.
In C.W.J.C. No.8068/11, the Court did not reach much less give any finding of large scale irregularities in the appointment. No findings of any nature was arrived at. The petitioner was required to represent before the District Magistrate drawing his attention to individual irregularities/illegalities in appointment. The irregular/illegal appointments were required to be identified. There was no sweeping, generalized powers or directions given for terminating appointments en bloc and en masse as done by the respondents. After the individual irregularities had been identified, corrective action with regard to them alone was required to be taken. The entire edifice of the impugned order originates from the order of the successor Civil Surgeon dated 18.4.2012 that this Court in C.W.J.C. No.8068/11 had directed termination of all persons appointed. It is unfortunate that the letter dated 18.4.2012 was attributing words which the Court had never said. It is indeed a matter of disappointment why the subsequent Civil Surgeon was finding infirmities in the orders of his predecessor taking shelter behind the orders of the Court, attributing to it what was not said in the order. En masse terminations have been ordered in the shelter of a Court order. This shall naturally be followed by large scale appointments fuelling the infamous appointment-termination-appointment industry.
A supposed apprehension of a contempt Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 6 proceeding which may or may not have been filed, as mentioned in the impugned order, is a mindless desperate defence.
If the respondents were of the opinion that there had been large scale irregularities in the appointment, did they require a court order for discharge of administrative duties or was it their duty to enforce the rule of law without awaiting court orders. In such a situation, the natural step required was to first take action against those who made such irregular appointments rather than picking on the appointees belonging to the lower strata only who remain a soft target. If illegal appointees have to go, those who made the appointments must go simultaneously.
The orders dated 18.4.2012 and 15.6.2012 are set aside without prejudice to the rights of the respondents strictly in accordance with the directions in C.W.J.C. No.8068/11.
The application is allowed."
The order of termination was quashed. However, the respondents were given liberty to proceed against the appointees but strictly in accordance with the direction passed in CWJC No.8068 of 2011 (Nand Lal Ram Vs. State) (supra).
It is on the basis of the judgment passed in the case of Dharamsheela Devi (supra), a copy of which forms part of Annexure- 3 series at running page 64 that several writ petitions filed by other petitioners including some of the present petitioners arising from CWJC 13207 of 2012, CWJC No.14461 of 2012, CWJC No.11983 of 2012 and some other cases which form part of Annexure- 3 series were also allowed. The petitioners were reinstated on their respective post and have continued to work uninterruptedly.
Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 7 It is after a lapse of almost three years thereafter and since two of such appointees were not being paid their remuneration that they came before this Court in CWJC No.4303 of 2015 (Surendra Prasad vs. State) and a Bench of this Court taking note of the grievance vide judgment and order dated 6.7.2015 disposed of the writ petition with a direction to the District Magistrate -cum-
Collector, Bhabhua to make payment of the admissible dues of the two petitioners. It is at this stage that the District Magistrate -cum-
Collector, Bhabhua while examining the claim of the said petitioners for payment of their dues assumed the jurisdiction to examine the appointments as well, even though there was no such direction by the Bench.
The District Magistrate -cum- Collector without realizing that the exercise in the light of the order passed in CWJC No.8068 of 2011 (Nand Lal Ram vs. State) had already earlier been completed whereby the appointees were terminated but the order of termination had been quashed by this Court and the State never questioned the order of the Bench before a superior court, yet sat down to review the matter. The District Magistrate -cum-
Collector, Kaimur at Bhabhua without issuing notice to either of the appointees, in purported compliance of the order and direction passed in CWJC No.4303 of 2015 (Surendra Prasad vs. State) has proceeded to examine the appointments in the light of the order Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 8 passed in CWJC No.8068 of 2011 (Nand Lal Ram Vs. State) and taking note of the three Member committee report which was already considered by the Bench in CWJC No.11954 of 2012 (Dharamsheela Kumarri vs. State) the District Magistrate, Kaimur at Bhabhua even while allowing payment of honorarium to the appointees issued direction to the Civil Surgeon, Kaimur to terminate the illegal appointees in accordance with law. The order bearing Memo no.99 dated 14.1.2016 of the District Magistrate, Kaimur at Bhabhua is impugned at Annexure- 2 to the writ petition.
It is proceeding therefrom that show cause notices were issued to the petitioners one of which is impugned at Annexure-7 which is in respect of the petitioner no.27, Sheomurat Ram and who was asked to show cause against the proposed termination on grounds of illegal appointment. The petitioner no.27, Sheomurat Ram responded to the show cause by filing reply, a copy of which is annexed at Annexure-8 and in which he has clarified the whole position. It is explained that the appointment has earlier been tested and it is following the order of the Bench that he has been reinstated with no objection raised thereafter. According to the petitioners, similar show cause notices have been issued to the other petitioners but in order to reduce the bulk of the brief the same are not enclosed. The explanation made by the petitioner no.27, Sheomurat Ram at Annexure-8 does not find any mention in the order of Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 9 termination impugned at Annexure-1 series which is a cyclostyled order issued to each of the petitioners The order of termination is an extreme example of a quasi-judicial adjudication. It simply ends the service of the petitioners by a one line rejection of the show cause.
Despite catena of judgments reminding the executive authorities performing quasi-judicial functions to reflect application of mind while adjudicating on the rights of an incumbent but the advise has evaded them for the order impugned at Annexure 1 series, is an apology for such exercise. Reference in this regard is made to the opinion expressed by the Supreme Court at paragraphs 14 to 47 of the judgment reported in (2010)9 SCC 496 (Kranti Associates Private Limited vs. Masood Ahmed Khan) and I am persuaded to reproduce the summary present at paragraph 47 which is a reminder to the executive authorities performing quasi-judicial functions as to the nature of obligation to be discharged.
"Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 10 and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(e) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor32).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija vs. Spain33 EHRR, at 562 para 29 and Anya v. University of Oxford34, wherein the Court Patna High Court CWJC No.11173 of 2016 dt.24-01-2017 11 referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions."
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process". The orders of termination impugned at Annexure-1 series to the writ petition are non-speaking, mechanical and bereft of reasons. The orders are also not sustainable in absence of any opportunity of hearing to the petitioners. The cyclostyled order of termination is a confirmation of non-application of mind.
For the reasons discussed, the cyclostyled order of termination all dated 8.4.2016 issued in respect of each of the petitioners impugned at Annexure-1 series cannot be upheld and are accordingly quashed and set aside.
The writ petition is allowed together with consequential benefits.
(Jyoti Saran, J) SKPathak/-
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