Patna High Court
Ramesh Kumar vs The State Of Bihar & Ors on 27 March, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.197 of 2014
===========================================================
Ramesh Kumar Son Of Late Awadhesh Prasad Gupta Resident Of Village And
Post- Jalhaniya, P.S.- Pipra, District- Supaul
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary, Department Of Health,
Govt. Of Bihar, Patna
2. Director In Chief, Health Services, Bihar, Patna
3. Additional Director, Health Services (F.W.) Health Directorate, Bihar, Patna
4. Regional Deputy Director, Health Services, Koshi Division, Saharsa
5. Civil Surgeon Cum Chief Medical Officer, Supaul
6. Incharge Medical Officer, Primary Health Centre, Basantpur, Supaul
.... .... Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. Banwari Sharma, Adv.
Mr. Shiv Kumar, Adv.
For the Respondent/s : Mr. P.N. Shahi, AAG-14
===========================================================
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 27-03-2015
Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application
reads as follows:-
"1. That the present application is for issuance of a writ of
certiorari for quashing part of the enquiry report with
respect to the petitioner as contained in Annexure-6, by
which the service of the petitioner has been held forged
by the Five Members Enquiry Committee, on the
ground that "Appointment letter forged. Not issued
from the office concerned". And further a writ in the
nature of writ of mandamus for directing the
respondent authorities to reinstate the petitioner on the
post on which he was working earlier before
termination of his service with all the salary and other
consequential benefits."
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 2
3. Learned counsel for the petitioner in support of the
aforementioned prayer has submitted that the findings of forgery on
the basis of which the petitioner's appointment has been held to be
bad and he has been kept out of service was itself arrived in a most
perfunctory manner. According to the learned counsel for the
petitioner, the appointment of the petitioner was made on 2.2.1984 by
Civil Surgeon Gopalganj on the post of Male Family Welfare Worker.
Learned counsel for the petitioner in this regard has also explained
that the petitioner thereafter had continued in service and he was also
confirmed on 27.12.1990 but after his being continued in service for
more than nineteen years, he was suddenly given a show-cause notice
on 31.12.2002 alleging his appointment to be illegal and thereafter the
services of the petitioner were terminated on 23.1.2003.
4. The further case of the petitioner is that he had assailed
his order of termination in CWJC No. 10283 of 2003 which was heard
and disposed of by a common judgment dated 26.6.2006 in CWJC
No. 946 of 2003 (State of Bihar Vs. Purendra Sulan Kit reported in
2006(3)PLJR 386). It is further case of the petitioner that though the
Division Bench while disposing of the writ application had directed
the issue to be examined by a Committee to be constituted by the
Health Department in terms of the judgment of the Apex Court in the
Case of State of Karnataka Vs. Uma Devi reported in 2006(4)SCC 1 but
the Committee in their report had held the appointment letter of the
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 3
petitioner to be forged and in fact not issued by the officer concerned
i.e. Civil Surgeon, Gopalganj.
5. According to learned counsel for the petitioner, the
petitioner had again moved this Court in CWJC No. 12763 of 2009
seeking a direction for reinstatement in service but this Court by an
order dated 10.5.2012 had directed the respondents to consider the
case of the petitioner in the light of the judgment of Uma Devi (supra)
whereafter the petitioner filed a detailed representation on 16.8.2012
but he was only communicated the decision of the Committee that his
appointment was forged. Learned counsel for the petitioner in this
regard has assailed the manner of functioning of the Committee as
also the manner in which the findings was arrived at by the Five Men
Committee. Learned counsel for the petitioner has also referred to
precedent cases of Krishna Murari Singh, Binod Kumar, Pradeep
Kumar Karn, Ashok Kumar Verma, Binod Narayan for establishing
that their cases were similar to the petitioner and therefore he ought to
have been also reinstated in service alike them.
6. Learned counsel for the State on the other hand has
submitted that in the case of the petitioner, the appointment was based
on forged appointment letter not only by the Committee of the Health
Department pursuant to the direction of this Court in the case of
Purendra Sulan Kit (supra) but also by the Civil Surgeon in the
impugned order of termination dated 23.1.2003. According to Mr.
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 4
Shahi, learned AAG-14, the findings of forgery cannot be examined
in a writ application and, as a matter of fact, if the petitioner was so
sanguine of his appointment letter to be genuine and not forged, he
had to file a civil suit wherein the evidence of both the parties could
have been examined by the Civil Court. He has further submitted that
as a matter of fact, the petitioner had no explanation whatsoever
because when a show-cause notice was given to him by the Civil
Surgeon for justifying his appointment, the petitioner had not even
filed show-cause reply as would be evident from reading of the order
of his termination dated 23.1.2003. Counsel also submitted that the
case of the petitioner is also one amongst more than thousand of the
illegal/forged appointment which were detected in course of time and
were terminated whereafter in case of only 91 persons out of more
than thousand cases, the Committee, constituted by the Health
Department, in view of the judgment passed in the case of Purendra
Sulan Kit (supra) had found them to be retained in service on account
of some irregularity in their appointment but, the Committee did not
recommend for retaining any one of the person like the petitioner
where the appointment was vitiated by forgery and fraud.
7. The first and foremost aspect which would emerge for
consideration in the case of the petitioner would be the manner of his
appointment on 2.2.1984. The photocopy of the appointment letter
produced by the petitioner vide Annexure-1 to the writ application
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 5
reads as follows:-
^^dk;kZy; vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh]
xksikyxat
vkns'k
Kkikad 365 @ fnukad 2@2@84
izs"kd%
Jh jes'k dqekj
xzke$iks0&cjgk] Fkkuk% fd'kuiqj
ftyk&lgjlkA
mudh fu;qfDR fcYdqy vLFkk;h :i ls osrueku
535&10&645&15&690&p0o0 15&765 esa iq:"k ifjokj dY;k.k
dk;ZdRrkZ ds in ij dh tkrh gSA mudh fdlh Hkh le; fcuk iwoZ
lwpuk ds mudk lsok lekIr dh tk ldrh gS mUgsa le; le; ij
ljdkj }kjk fu/kkZfjr thou ;kiu HkRrk ,oa vU; HkRrk ns; gksxkA
vkns'k fn;k tkrk gS fd os viuk ;ksxnku izHkkjh fpfdRlk
inkf/kdkjh] mpdk xksikyxat ds v/khu bl vkns'k dh izkfIr ds 15
fnukas ds vUnj fuf'pr :i ls lefiZr djsaA vU;Fkk mudh fu;aqfDr
jn~n le>kh tk;sxhA ;ksxnku ds le; fdlh Hkh vlSfud&'kY;&
fpfdRld lg&eq[; fpfdRlk inkf/kdkjh ls LokLF; izek.k i= izkIr
dj ,oa vLFkkbZ ?kks"k.kk i= Hkj dj izLrqr djsaA ;ksxnku gsrq ;k=k
HkRrk ns; ugha gksxkA
g0@&
2@2@84
vlSfud 'kY; fpfdRld
lg&eq[; fpfdRlk inkf/kdkjh]
xksikyxat**
8. Thus, from perusal of the order of appointment and the
averment made in the writ application, it becomes very clear that such
appointment of the petitioner was never made after publication of the
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 6
advertisement in newspaper followed by selection. While the
petitioner in paragraph no.4 has made a vague statement of issuance
of an advertisement by Civil Surgeon, Gopalganj but neither date of
advertisement has been disclosed nor the order of appointment of the
petitioner also refers to any such advertisement and/or selection
process.
9. The fate of appointment without following the
procedure of advertisement and selection as per the mandate of Article
14 of the Constitution of India has already been decided by the Apex
Court in a large number of cases. Reference in this connection may be
usefully made in the following portion of the judgment of the Apex
Court in the case of State of Bihar Vs. Upendra Narayan Singh & Ors.
reported in 2009(5) SCC 65 relevant portion whereof reads as follows:-
"59. At the hearing of this appeal, we asked the learned
Senior Counsel appearing for the respondents to show
that before appointing his clients on ad hoc basis, the
then Regional Director, Gaya had issued an
advertisement and/or sent requisition to the
employment exchange and made selection after
considering competing claims of the eligible
candidates but he could not draw our attention to any
document from which it could be inferred that the
respondents were appointed after advertising the posts
or by adopting some other method which could enable
other eligible persons to at least apply for being
considered for appointment. He, however, submitted
that issue relating to legality of the initial
appointments of the respondents has become purely
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 7
academic and this Court need not go into the same
because their services had been regularized by the
competent authority in 1992.
60. In our opinion, there is no merit in the submission of
the learned Senior Counsel. If the initial appointments
of the respondents are found to be illegal per se, the
direction given by the High Court for their
reinstatement with consequential benefits cannot be
approved by relying upon the so-called regularization
of their services. Had the respondents been appointed
by the competent authority after issuing an
advertisement or sending requisition to the
employment exchange so as to enable the latter to
sponsor the names of eligible persons then they would
have certainly produced the relevant documents
before the High Court or at least before this Court.
However, the fact of the matter is that none of the
documents which could give a semblance of legitimacy
to the appointments of the respondents was produced
before the High Court and none has been produced
before this Court."
10. The same view has also been reiterated with added
emphasis in the case of State of Orissa & Anr. Vs. Mamata Mohanty
reported in 2011(3) SCC 436 wherein it has been held as follows:-
"Appointment/employment without advertisement
35. At one time this Court had been of the view that calling
the names from employment exchange would curb to certain
extent the menace of nepotism and corruption in public
employment. But, later on, came to the conclusion that some
appropriate method consistent with the requirements of Article
16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications
and all those who apply in response thereto should be
considered fairly. Even if the names of candidates are
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 8
requisitioned from employment exchange, in addition thereto it
is mandatory on the part of the employer to invite applications
from all eligible candidates from the open market by
advertising the vacancies in newspapers having wide
circulation or by announcement in radio and television as
merely calling the names from the employment exchange does
not meet the requirement of the said article of the Constitution.
(Vide Delhi Development Horticulture Employees' Union v.
Delhi Admn. [(1992) 4 SCC 99], State of Haryana v. Piara
Singh [(1992)4 SCC 118, Excise Supt. V. K.B.N. Vishweshwara
Rao [(1996) 6 SCC 216], Arun Tewari v. Zila Mansavi
Shikshak Sangh [(1998) 2 SCC 332], Binod Kumar Gupta v.
Ram Ashray Mahoto [(2005) 4 SCC 209], National Fertilizers
Ltd. v. Somvir Singh [(2006) 5 SCC 493], Deptt. Of
Telecommunications v. Keshab Deb [(2008)8 SCC 402], State
of Bihar v. Upendra Narayan Singh [(2009)5 SCC 65 and State
of M.P. v. Mohd. Abrahim.[2009)15 SCC 214])
36. Therefore, it is a settled legal proposition that no person
can be appointed even on a temporary or ad hoc basis without
inviting applications from all eligible candidates. If any
appointment is made by merely inviting names from the
employment exchange or putting a note on the notice board,
etc. that will not meet the requirement of Article 14 and 16 of
the Constitution. Such a course violates the mandates of
Articles 14 and 16 of the Constitution of India as it deprives the
candidates who are eligible for the post, from being considered.
A person employed in violation of these provisions is not
entitled to any relief including salary. For a valid and legal
appointment mandatory compliance with the said constitutional
requirement is to be fulfilled. The equality clause enshrined in
Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete
on merit."
(Underlining for emphasis)
11. Thus, this Court will have no difficulty in holding
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 9
that the appointment of the petitioner was itself in teeth of Article 14
and, therefore, not sustainable on fact and in law. Such illegal
appointment without following the mandate of Article 14 of the
Constitution of India in fact would not confer any right on the
petitioner. The issue also becomes very jinxed in the case of petitioner
because the aforesaid appointment letter of the petitioner in course of
enquiry by the Committee of the Health Department has been found to
be forged, inasmuch as, no such letter has been found to be issued
from the office of the Civil Surgeon, Gopalganj.
12. The fate of an illegal and forged appointment was
again gone into by the Full Bench of this Court in he case of Rita
Mishra & Ors. Vs. Director, Primary Education, Bihar & Ors. reported
in 1987 PLJR 1060 which was also reiterated by the Apex Court in the
case of R. Vishwanatha Pillai Vs. State of Kerala & Ors reported in (2004) 2
SCC 105 wherein it was held as follows:-
"15. --------- Unless the appellant can lay a claim to the post on
the basis of his appointment he cannot claim the
constitutional guarantee given under Article 311 of the
Constitution. As he had obtained the appointment on the
basis of a false caste certificate he cannot be considered to be
a person who holds a post within the meaning of Article 311
of the Constitution of India. Finding recorded by the Scrutiny
Committee that the appellant got the appointment on the
basis of a false caste certificate has become final. The
position, therefore, is that the appellant has usurped the post
which should have gone to a member of the Scheduled
Castes. In view of the finding recorded by the Scrutiny
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 10
Committee and upheld up to this Court, he has disqualified
himself to hold the post. The appointment was void from its
inception. It cannot be said that the said void appointment
would enable the appellant to claim that he was holding a
civil post within the meaning of Article 311 of the
Constitution of India. As the appellant had obtained the
appointment by playing a fraud, he cannot be allowed to take
advantage of his own fraud in entering the service and claim
that he was holder of the post entitled to be dealt with in
terms of Article 311 of the Constitution of India or the Rules
framed thereunder. Where an appointment in a service has
been acquired by practicing fraud or deceit, such an
appointment is no appointment in law, in service and in such
a situation Article 311 of the Constitution is not attracted at
all.
16. In Ishwar Dayal Sah v. State of Bihar the Division Bench of
the Patna High Court examined the point as to whether a
person who obtained the appointment on the basis of a false
caste certificate was entitled to the protection of Article 311
of the Constitution. In the said case the employee had
obtained appointment by producing a caste certificate that he
belonged to a Scheduled Caste community which later on was
found to be false. His appointment was cancelled. It was
contended by the employee that the cancellation of his
appointment amounted to removal from service within the
meaning of Article 311 of the Constitution and was therefore
void. It was contended that he could not be terminated from
service without holding departmental inquiry as provided
under the Rules. Dealing with the above contention, the High
Court held that if the very appointment to the civil post is
vitiated by fraud, forgery or crime or illegality, it would
necessarily follow that no constitutional rights under Article
311 of the Constitution can possibly flow. It was held: (Lab
IC pp. 394-95, para 12)
If the very appointment to civil post is vitiated by
fraud, forgery or crime or illegality, it would necessarily
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 11
follow that no constitutional rights under Article 311 can
possibly flow from such a tainted force. In such a situation,
the question is whether the person concerned is at all a civil
servant of the Union or the State and if he is not validly so,
then the issue remains outside the purview of Article 311. If
the very entry or the crossing of the threshold into the arena
of the civil service of the State or the Union is put in issue
and the door is barred against him, the cloak of protection
under Article 311 is not attracted.
17. The point was again examined by a Full Bench of the Patna
High Court in Rita Mishra v. Director, Primary Education,
Bihar. The question posed before the Full Bench was whether
a public servant was entitled to payment of salary to him for
the work done despite the fact that his letter of appointment
was forged, fraudulent or illegal. The Full Bench held: (AIR
p. 32, para 13)
"13. It is manifest from the above that the rights to salary,
pension and other service benefits are entirely
statutory in nature in public service. Therefore, these
rights, including the right to salary, spring from a
valid and legal appointment to the post. Once it is
found that the very appointment is illegal and is non
est in the eye of the law, no statutory entitlement for
salary or consequential rights of pension and other
monetary benefits can arise. In particular, if the very
appointment is rested on forgery, no statutory right
can flow from it."
18. We agree with the view taken by the Patna High Court in the
aforesaid cases.
19. It was then contended by Shri Ranjit Kumar, learned Senior
Counsel for the appellant that since the appellant has
rendered about 27 years of service, the order of dismissal be
substituted by an order of compulsory retirement or removal
from service to protect the pensionary benefits of the
appellant. We do not find any substance in this submission as
well. The rights to salary, pension and other service benefits
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 12
are entirely statutory in nature in public service. The
appellant obtained the appointment against a post meant for
a reserved candidate by producing a false caste certificate
and by playing a fraud. His appointment to the post was void
and non est in the eye of the law. The right to salary or
pension after retirement flows from a valid and legal
appointment. The consequential right of pension and
monetary benefits can be given only if the appointment was
valid and legal. Such benefits cannot be given in a case
where the appointment was found to have been obtained
fraudulently and rested on a false caste certificate. A person
who entered the service by producing a false caste certificate
and obtained appointment for the post meant for a Scheduled
Caste, thus depriving a genuine Scheduled Caste candidate of
appointment to that post, does not deserve any sympathy or
indulgence of this Court. A person who seeks equity must
come with clean hands. He, who comes to the court with false
claims, cannot plead equity nor would the court be justified to
exercise equity jurisdiction in his favour. A person who seeks
equity must act in a fair and equitable manner. Equity
jurisdiction cannot be exercised in the case of a person who
got the appointment on the basis of a false caste certificate by
playing a fraud. No sympathy and equitable consideration
can come to his rescue. We are of the view that equity or
compassion cannot be allowed to bend the arms of law in a
case where an individual acquired a status by practicing
fraud."
(Underlining for emphasis)
13. Once this Court, therefore, has found that there is a
finding of forgery, the petitioner cannot be heard to say that he could
not have been removed from service without being subjected to
regular departmental proceeding before termination of his service.
The order of termination of service of the petitioner dated 23.1.2003
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 13
in this regard reads as follows:-
dk;kZy;] vlSfud 'kY; fpfdRld&lg&eq[; fpfdRlk inkf/kdkjh]
lqikSy
vkns'k
Kkikad 55 @ lqikSy] fnukad 23-1-03
izsf"kr%& jes'k dqekj] i0 d0 dk;Z0
izkFkfed LokLF; dsUnz] clariqj
vlSfud 'kY; fpfdRld&lg&eq[; fpfdRlk inkf/kdkjh] xksikyxat
ds fucaf/kr i=kad 124 lh fnukad 13-12-2002 ,oa 11 lh fnukad 13-
01-2003 ds vuqlkj 01-01-1980 ds ckn voS/k@QthZ fu;qfDr dh tkap
dsa de esa vki ds }kjk izLrqr fu;qfDr i= la[;k 365 fnukad 02-02-
1984 muds dk;kZy; ls fuxZr ugha gqvk gSa bl dk;kZy; ds vkns'k
la[;k 1252 fnukad 31-12-20002 }kjk bl laca/k eas vki ls iUnzg fnuksa
ds vUnj Li"Vhdj.k dh ekax dh xbZA FkhA fdUrq fu/kkZfjr vof/k
lekfIr ds i'pkr Hkh vki ds }kjk Li"Vhdj.k lefiZr ugha fd;k tk
ldrk gSA
vr% eq[; lfpo] fcgkj iVuk ds i= la[;k 746A4A fnukad
09-07-2002dh dafMdk 4A1A ds vuqlkj vki dh fu;qfDr dks voS/k@QthZ djkj nsrs gq, vki dh lsok i= fuxZr dh frfFk fnukad 23-01-2003 ls lekIr dh tkrh gSA g0@& 23@1@03 vlSfud 'kY; fpfdRld lg eq[;
fpfdRlk inkf/kdkjh] lqikSyA** (Underlining for emphasis)
14. Thus, whatever has been found by the Committee of the Health Department in course of enquiry was also well known to the petitioner from the contents of the order of his termination dated 23.1.2003 wherein it was clearly mentioned that his such appointment letter was never issued by the office of the Civil Surgeon cum Chief Patna High Court CWJC No.197 of 2014 dt.27-03-2015 14 Medical Officer, Gopalganj. In such a situation, the confirmation of the petitioner in service could not have vested him with any right and there was no need to hold a regular departmental enquiry has also been fully explained in the case of R. Vishwanatha Pillai (supra).
15. The challenge of the petitioner that the Committee of the Health Department also had not properly gone into the issue and its report was not worth acceptance was considered by the Division Bench of this Court while examining exactly similar cases of illegal appointment of the Health Department in appeal arising out of the order of the learned single Judge directing reinstatement in service vide an order dated 24.9.2014 in LPA No. 200 of 2010 (The State of Bihar Vs. Madhu Kumari) wherein it was held as follows:-
"Since the report of the State Committee is questioned before us, we will examine the legality of the said report. The challenge to the said report is on the ground that although the State Government had constituted a committee of five members, ultimately the enquiry was conducted by only three of them and the report has been signed by the three members alone. The allegation is that two other officers avoided the enquiry proceeding because of the illegalities committed in the enquiry. The real issue is whether the report made by three members' Committee would be vitiated because the Committee initially comprised five members. True, it was the duty of the State Government to explain the reasons for which the two others members of the Committee did not participate in the enquiry proceeding. However, in absence of such explanation also, in our view the report of the State Committee can not be vitiated for the reason that the enquiry was conducted by three members.
Patna High Court CWJC No.197 of 2014 dt.27-03-2015 15 At the first we will note that although the report of the State Committee is under challenge; the members of the State Committee are alleged to have committed large scale irregularities, none of the members of the State Committee has been impleaded as party respondent. In absence of the members of the State Committee, neither the allegations of malafide or irregularities can be countenanced; nor the report can be vitiated. As recorded hereinabove, for all practical purposes it was a three member Committee and all the three members have signed the report. Merely because earlier the committee comprised of five members and the two members did not participate in the enquiry proceedings (for reasons not known), the report cannot be vitiated. Had the State Committee been a statutory committee, the said Committee could not have been constituted or have functioned except in accordance with the relevant provisions. That is not the case here. Had this Court directed to constitute a five member committee, any other committee having any different constitution may be vitiated. This Court had not issued a direction to constitute a committee comprising five members or any particular number of members. All that this Court directed was "to consider the cases of all the affected employees." The enquiry in accordance with the direction issued by this Court could have been made by an individual officer of the Government if authorized or by any committee of one or more members that the Government may constitute. The State Government, pursuant to the aforesaid direction, in its wisdom, appears to have constituted a committee of five members. Ultimately, only three members sat in the enquiry; held the enquiry and made its report. We do not see any reason why the said report cannot be believed or should be held to be illegal or invalid. It is not in dispute that the State Committee did offer opportunity of representation and hearing to the affected employees. The principles of natural justice having been complied with, this Court ought not to have any reason to disbelieve or interfere with the finding recorded by the State Committee. It is note Patna High Court CWJC No.197 of 2014 dt.27-03-2015 16 worthy that the writ petitioners have not challenged the finding recorded by the State Committee or at least have not been able to establish that the respective finding is erroneous on the facts of the case. We have recorded the facts of one case just to bring home the nature of illegality committed by the Civil Surgeon-cum- Chief Medical Officer. As recorded hereinabove, in repeated enquiry made by the State Government all such appointments were found to be illegal, void ab-initio. Unless there is a strong evidence of such finding being wrong, this Court in exercise of power of judicial review shall not interfere with such finding.
In the present set of writ petitions, none of the writ petitioners has dislodged the finding of illegal appointment or has established that his or her appointment was legal and valid in all respects. In our view, the learned single Judge has erred in totally discarding the report of the State Committee on the premise that only three members of the committee had conducted the enquiry and had submitted the report."
16. Thus, this Court in view of the judgment of Division Bench in the case of Madhu Kumari (supra) would also not find any merit that the report of the Committee did not inspire confidence.
17. As with regard to the some other orders passed in similar writ applications, this Court must hold that none of them relate to forged appointment alike the petitioner where services were terminated on the ground of forgery and, thus, those orders cannot be a precedent. In the case of the petitioner, the relevant portion of the report of the Committee had already been communicated to the petitioner that his appointment letter on account of its having been not issued by the Civil Surgeon, Gopalganj, was forged. Thus, the Patna High Court CWJC No.197 of 2014 dt.27-03-2015 17 reinstatement of the petitioner in service on the basis of any earlier order of this Court after the judgment of the Division Bench of this Court in the case of Madhu Kumari (supra) is also not permissible in the light of law laid down by the Apex Court in the case of Upendra Narayan Singh (supra) wherein law in this regard has been laid down in the following words:-
65 In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.
67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order - Chandigarh Administration and another v.
Jagjit Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC94], Union of India and another v. Patna High Court CWJC No.197 of 2014 dt.27-03-2015 18 International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] ."
18. In view of the aforesaid law laid down by the Apex Court, in the case of Upendra Narayan Singh (supra), this Court is not required to say anything further as with regard to the instances cited by the petitioner in paragraph no.37 wherein names of number of persons have been given who are said to have been reinstated in service on some orders of this Court based on the judgment of the Apex Court in the case of State of Karnataka & Ors. Vs. M.L. Kesari & Ors. reported in (2010) 9 SCC 247 while differing with the Constitution Bench judgment in the case of Uma Devi (supra). It has to be kept in mind that when the Division Bench had taken a view for reinstatement of the illegally appointed persons by relying on the judgment passed in the case of M.L. Kesari (supra), the matter was referred to the Full Bench and the Full Bench in the case of Ram Sevak Yadav & Anr. Vs. The State of Bihar & Anr. reported in 2013(1)PLJR 964 had held as follows:-
"32. In M.L.Kesari (supra) it was observed at paragraph 7 as follows :-
"7. It is evident from the above that there is an exception to the general principles against "regularisation"
enunciated in Umadevi (3), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Patna High Court CWJC No.197 of 2014 dt.27-03-2015 19 Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
(Emphasis added by us)
33. As we read the paragraph, in our humble opinion, and to the best of our appreciation and understanding, a person not appointed against a sanctioned post and not possessing the requisite qualification for the post is not entitled to regularisation even if he has worked for over ten years. But a person possessing the requisite qualifications appointed against a sanctioned post and who has continued over ten years without aid of Court orders is eligible for regularisation even if the appointment was made without the process of open competitive selection. The catena of decisions noticed by us of the Apex Court in no uncertain terms provide that if the appointment was in violation of Article 14 without advertisement and equal opportunity to all eligible for being considered, the question of regularisation does not arise. Only if some rudimentary compliance even by registration with and calling of names from the employment exchange was followed, could regularisation be considered if it was made against a sanctioned post. Mere appointment against a sanctioned post without furthermore shall not suffice. With all the humility at our command, again in our humble opinion a competitive selection even in such a case is the mandate of the Constitution bench Patna High Court CWJC No.197 of 2014 dt.27-03-2015 20 at paragraph 43 extracted above."
19. As a matter of fact, this issue again in the case of illegal appointment in the Health Department itself was examined and the earlier judgment of the Division Bench in the case of The State of Bihar & Ors. Vs. Binay Kumar Singh reported in 2011(3) PLJR 547 relying on M.L. Kesari case (supra) was held to be no longer good law in view of the conclusion arrived by the Full Bench of this Court in the case of Ram Sevak Yadav (supra).
20. The last submission of Mr. Sharma that the petitioner had continued for a period of nineteen years and thus his services ought to have not terminated is also not acceptable to this Court because if the petitioner had continued in service on the basis of appointment letter which was never issued by the Civil Surgeon, Gopalganj and in fact he had continued on the basis of forged appointment letter by managing to also get transferred from the jurisdiction of Civil Surgeon, Gopalganj to the jurisdiction of Civil Surgeon, Jamui, his such long continuation shall confer him with no right. The Division Bench of this Court in the case of illegal appointment of the Health Department itself in the case of Madhu Kumari (supra) had had rejected such plea of long continuation in the following terms:-
"This brings us to the last question whether in view of their long service, the writ petitioners are entitled to regularization in service as observed by the Hon'ble Supreme Court in Uma Devi (3) (2006(4)SCC 1). This was the precise Patna High Court CWJC No.197 of 2014 dt.27-03-2015 21 question which was referred to the Full Bench in the matter of Ram Sevak Yadav & Anr. (2013(1)PLJR 964). The Full Bench of this Court has categorically held that the judgment in Uma Devi (supra), prohibits regularization of such appointments, the period of service being irrelevant; and that illegal appointment void ab- initio cannot be regularised under any circumstances. In view of the aforesaid decision of the Full Bench of this Court, the law laid down by the Division Bench of this Court in the matter of The State of Bihar & Ors. Vs. Binay Kumar Singh & Ors. [2011 (3) PLJR 547] is no longer a good law.
In the present case, the appointments of the writ petitioners have been repeatedly held to be non est or void ab- initio. The question of regularization of their service even by invoking paragraph 44 of the judgment in the matter of Uma Devi (3) (supra) shall not arise."
21. Thus, in the light of the aforesaid discussions, this Court does not find any merit in this case and the same is, accordingly, dismissed.
22. There would be, however, no order as to costs.
(Mihir Kumar Jha, J) Rishi/-
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