Document Fragment View

Matching Fragments

It is essential that background of these cases should be discussed before analyzing the grounds taken by the petitioner for challenging the enquiry report/impugned orders and reply submitted by the State to counter the submission made by the petitioners.

Petitioners were directly appointed on Class III posts and Class IV posts and thereafter regularized on their posts. In most of the cases, after their appointments, petitioners continued for more than ten years. They were regularized, their service books were opened and they were made permanent. In some of the cases, petitioners also received benefits of time bound promotion. Subsequently their appointments were questioned by the authorities and enquiries were made. On account of questioning of their appointment and continuation of enquiry, salaries of some of the petitioners were withheld, as such, they approached the High Court for a direction to pay their salaries by filing writ applications. They got relief from the High Court and directions were issued for payment of salary, as it had been stopped without any finding recorded against genuineness or legality of their appointment. Petitioners thereafter started getting their salary. The enquiry proceeded and in most of the cases finally termination orders were issued on the ground that on the basis of forged letters appointments were made, appointment letters were issued by an incompetent authority against unsanctioned posts and also that appointments were made without observing the selection process for legal appointment, without advertising the posts, giving proper opportunity to eligible candidates to participate. A number of writ applications were filed challenging the termination orders. Those writ applications were decided by an order passed in C.W.J.C.No.4702 of 2003 and analogus cases. Some of the cases in which termination orders were not quashed Letters Patent Appeals were filed. Appeals were also filed by the State against orders quashing termination orders. Some of the writ applications, which were filed challenging the termination order had remained pending. Finally L.P.As preferred by the State as well as petitioners and pending writ applications, were heard analogus. L.P.A.No.946 of 2003, became the leading case which was heard analogus with several L.P.As. and writ petitions. A marathon arguments were advanced by the petitioners as well as the State. Several questions were raised including the equity as petitioners have continued in their service for several years and in most of the cases their age for any new appointment had expired. Finally all these matters were disposed of without deciding the merit of the case giving direction to the State to decide the cases of the petitioners in the light of judgment of Constitution Bench of Supreme Court in the Case of Secretary, State of Karnataka Vrs- Uma Devi and ors ( 2006(2) P.L.J.R. (S.C.) 363). Direction was to find out that which of the cases come in the category of irregular appointments. In case of irregular appointment, steps be taken to regularize services of such irregularly appointed employees as one time measure and so far the cases coming in the category of illegal and forged, no steps is to be taken for their continuation in service. The direction was that in case irregularly appointed employees have worked for ten years or more against a duly sanctioned posts, without covers of orders of courts or tribunal, their services be regularized initiating a process for regularization within six months from the date of judgment. Further direction was to constitute a committee for holding enquiry. In the light of the direction in L.P.A.No.946 of 2003 and analogus cases the State of Bihar, Department of Health constituted five men committee for examining the nature and status of appointments of affected persons. It is pertinent to state here at this juncture that during pendency of the L.P.A. No.946 of 2003 and analogus cases before the High Court, the State government has undertaken similar task to find out the status of appointments of petitioners and similar employees by constituting three men committee. This committee had also submitted report categorizing appointments of affected employees in three categories; illegal, irregular and forged. However, that report was not considered by the L.P.A.Bench and the matters were disposed of for fresh consideration of factual aspect, in the light of the decision of Apex Court in the case of Secretary, State of Karnataka and ors Vrs- Uma Devi (supra). Five men committee had to complete its task within six months from the date of the order, but it was not done and the time was extended by the High Court for further three months. The committee did not complete the enquiry within the extended time, but thereafter no prayer for extension of time was made and the enquiry continued for longer period. During pendency of enquiry, Chairman of the committee was changed. Two of its members abstained from participating in the enquiry and they did not sign the enquiry report. Final report signed by three men committee was submitted as report of five men committee. On the basis of this report, petitioners were either issued termination letters or simply they were restrained from discharging their duty. In some of the cases despite enquiry report, treated their service as illegal or forged, concerned Civil Surgeon treated them as genuinely appointed. In other cases, though petitioners earlier termination order had been quashed by the writ court, they were not allowed to join, on account of pendency of appeal. The situation was that some of the persons who were though directed to be reinstated by the writ court, were not allowed to be reinstated. Some of the persons in the light of writ court's order had been allowed to join, but after submission of the enquiry report, again they were removed from their service. In some of the cases enquiry committee did not come out with any finding or it was not communicated to the petitioners even then they were treated to be illegally appointed and removed from the service, or if earlier working were removed. Petitioners prayer in all these writ applications is for quashing the enquiry report submitted by five men committee and for a direction to reinstate them in their service, from which they were removed after 20 years, 18 years or more of their initial appointment.

I find that similar nature of cases filed by the petitioners against same enquiry report have been allowed by this Court quashing the termination order as well as the enquiry report on the ground of discrimination, as persons appointed in same transaction are still continuing in their service, while the petitioners have been terminated on account of categorizing their appointments as illegal and forged.

Another ground for quashing the enquiry report and termination orders issued in case of some writ application is that no reason has been assigned for treating the service of the petitioners as illegal, irregular or forged. The Supreme Court in its decision in the case of State of Bihar- Vrs- Upendra Narayan Singh) reported in 2009(5) S.C.C.65, it has been held that failure to give reason amounts to denial of justice. Reasons are life link in between the decision maker to the controversy and question and the decision and conclusion arrived at. I find that unreported decision of this Court in C.W.J.C.No.4797 of 2009, C.W.J.C.No.4872 of 2009, C.W.J.C.No.5730 of 2009 and C.W.J.C.No.6431 of 2009 are identical to the case of the petitioners similar reliefs were prayed in those writ applications also, there is no reason for not allowing similar relief to these petitioners as in similar circumstances petitioners have also been terminated from their service.

I find that almost all the petitioners were confirmed, absorbed and regularized in their service prior to the impugned enquiry, petitioners had earlier challenged their terminatioin orders and thus termination orders were quashed by this Court against which L.P.A. was preferred by the State. The L.P.A.Bench did not set aside the decisioin of single Judge whereby termination orders were quashed. Simply a direction was issued to conduct an enquiry. Once a judgment is delivered, its effect can be taken away only by a superior forum and that also, if set aside. Admittedly the judgments delivered in the writ application preferred by the petitioners were not quashed and the direction of this Court to reinstate the petitioners still remained there. I also find that the authorities have wrongly applied the reported decision of Apex Court in Uma Devi's case while considering the nature of appointment of the petitioners. They completely overlooked that petitioners cases are not cases of regularization, but for finding out the genuineness of appointments. Case of regularization of a daily wager or ad-hoc appointee cannot be equated with the case of persons whose appointments have been made permanent. In such cases the parameters as provided in Uma Devi's case can not have application. This view has been held and affirmed by two Division Bench of this Court in the decision reported in 2007 (4) P.L.J.R. 372 and 2008 (1) B.B.C.J.608. The decision reported in 2008 (1) B.B.C.J. 608 also related to termination from service on the ground that appointments were made by forged appointment letter. The Single Judge relying upon the decision of Uma Devi's case had dismissed the writ application. L.P.A. Bench set aside the judgment passed by the single Judge. Paragraph 10 of the said judgment is as follows:-

All these are the reasons for which the impugned enquiry report dated 31.12.2008 is quashed. The writ applications in which termination orders have been issued by the Civil Surgeon or any other authorities, those letters are also quashed. The respondents are directed to reinstate the petitioners on the post, they were working. Their reinstatement will be with effect from the date of their termination with all consequential benefits.