IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1585 of 2002 PRAKASH CHANDRA SINHA, SON OF SHRI AKSHYABAT NATH SINHA, RESIDENT OF MOHALLA KADAMKUAN, P.S. KADAMKUAN, DISTRICT PATNA ………PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 2. THE COMMISSIONER-CUM-SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 4. THE DEPUTY DIRECTOR, HEALTH SERVICES (ADMINISTRATION), GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 5. THE DEPUTY DIRECTOR, HEALTH SERVICES (T.B.), BIHAR, AGAMKUAN, PATNA 6. THE COMMISSIONER, PATNA DIVISION, PATNA 7. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, HAZARIBAGH 8. THE DEPUTY SUPERINTENDENT, SUB-DIVISIONAL HOSPITAL, CHATRA, HAZARIBAGH ……….RESPONDENTS ---- FOR THE PETITIONER: MR. SHAILENDRA KUMAR SINHA,ADVOCATE FOR THE STATE : MR. AMARENDRA KUMAR, A.C. TO G.P. No.XI ---- P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J. Initially, the writ application was filed by the petitioner for directing the respondents to pay his salary of the post of clerk, due from August, 2000 onwards. However, when the case was taken on 20.02.2002 it appeared that some enquiry was pending against him. Therefore, the respondents were directed to expedite the enquiry and conclude the same within four months. Respondents, accordingly, concluded the enquiry and, on the basis of the enquiry report dated 04.06.2002, terminated petitioner’s services by order dated 7.11.2002. Petitioner, accordingly, filed I.A. No.5171 of 2002, placing on record the order of his termination and the enquiry report as Annexures 13 - 2 - and 14, respectively, with a prayer to amend his writ application for a liberty to challenge the said termination order. 2. As during the pendency of the writ application, services of the petitioner has been terminated, the said interlocutory application is allowed and the same is directed to be treated as part of the writ application and petitioner is permitted to challenge the enquiry report and termination order as contained in Annexures 14 and 13, respectively. 3. The impugned termination order (Annexure-13) issued under the signature of respondent no.5 is exactly a four-line order. It refers to a letter no.428 dated 4.6.2002 issued by the respondent no.5 himself in the light of the Chief Secretary’s letter no.696 (22) dated 19.6.1999, issued in the light of letter of the Divisional Commissioner issued in reference to C.W.J.C.NO. 1585 of 2002, holding the appointment of petitioner as illegal and terminating his services in consequent to letter no.4/Q1-60/93 dated 30.8.2002 of the Commissioner-cum-Secretary and letter no.971 (4) dated 30.8.2002 of the Director (Administration). This order does not mention about any enquiry or any show cause notice to petitioner with any opportunity to him to file his representation. The letter of the respondent no.5 bearing no.428 dated 4.6.2002, which has been referred in this order, is annexed as Annexure-14 by - 3 - the petitioner along with his amendment application. This letter (Annexure-14) which has been addressed by the Commissioner, Patna Division to the Commissioner- cum-Secretary of the Department, mentions about an enquiry, held in respect of appointment of petitioner, in the light of the orders passed in the writ application earlier. It mentions the details in respect of appointment of petitioner and information received in respect of the same from the office of the respondent-Civil Surgeon, Hazaribagh, from which it appeared that records were not available in the office of the Civil Surgeon, Hazaribagh, in respect of appointment of petitioner. In the letter it has been concluded that rules in respect of appointment were not complied with in respect of appointment of the petitioner, inasmuch as, names were not called for from the Employment Exchange; advertisement was not published and there was no recommendation of the selection committee in the matter. Therefore, it was concluded in the letter that appointment of the petitioner appeared to be illegal and recommendation was made for necessary action in the matter. This letter also does not show that petitioner was ever given any notice to present his case in his defence in the enquiry or he was ever apprised of even, about the enquiry going on against him. As rightly submitted by learned counsel for the petitioner, this was sufficient to set aside the impugned order, holding the same to have been issued in violation of - 4 - Principles of Natural Justice, with an opportunity to the respondents to proceed in the matter afresh with adequate opportunity to him to defend his case for continuity in service, and thereafter to pass fresh orders. 4. However, learned counsel for the respondents submitted that requirements of compliance of Principles of Natural Justice in the case would be an empty formality as admittedly, there was no compliance of the established rules and procedures prescribed for appointment of a government servant, in the case of appointment of petitioner. He submitted that Government letters, issued much prior to appointment of petitioner, clearly lay down a definite procedure for appointment in government service, requiring open advertisement with opportunity to all the eligible persons to apply, a definite selection process and recommendation of a competent selection committee complying with the norms of appointment. He said that, in the appointment of petitioner, none of the requirements were fulfilled and, therefore, his appointment was patently illegal and void. In support of his submission, he relied upon the judgment of the Apex Court in the case of State of Bihar Versus Upendra Narayan Singh, reported in (2009) 5 Supreme Court Cases 65, and a Division Bench decision of this Court in the case of Hemkant Jha Versus State of Bihar, reported in 2007 (3) PLJR 657. He also submitted - 5 - that, as per observation of the Division Bench, in the case of Hemkant Jha (supra), the principles laid down by the Apex Court in the case of Secretary, State of Karnataka & ors. Versus Uma Devi (3), reported in (2006) 4 Supreme Court Cases 1, in the context of absorption/regularization, will apply with equal force in the case of illegal appointment. In the circumstances, termination order in respect of appointments which could be found to be irregular in terms of Uma Devi’s case (surpa) could only be upset and not the termination orders in respect of appointments which were glaringly illegal. 5. Learned counsel for the petitioner has not disputed this legal proposition. He has also not claimed that any norms of appointment, laid down by the rules and instructions of the State Government, were followed in the case of appointment of petitioner. However, he submitted that petitioner’s appointment as Male Ward Attendant, by Annexure-1 dated 18.01.1982, was duly approved by the respondent-Civil Surgeon, vide Annexure-7 dated 18.01.1982, who was, at that point of time, the competent authority to make appointment on class III or class IV posts. Subsequently, respondent-Civil Surgeon posted him as clerk, vide letter dated 27.11.1982, in Katkam Sandi Block, Hazaribagh, where he joined on 1.12.1982. Thereafter, by order of the Deputy Director, Health Services (Administration), respondent no.4, he was transferred to the office of - 6 - respondent no.5, the Deputy Director, Health Services (T.B.) Sultanganj, Patna, vide Annexure-4 dated 15.2.1983. Petitioner was, accordingly, relieved by the Incharge Medical Officer of the Block and he joined in the office of the respondent no.5. Thereafter, by order of respondent no.5, the Deputy Director, dated 24.4.1992, as contained in Annexure- 12, his services were confirmed on the post of clerk from the date of his joining in his office. He also pointed out that, by Annexure 18 dated 16.12.1992, respondent no.5 forwarded the case of the petitioner to the Accountant General, Bihar, Patna for grant of first time bound promotion which, after due enquiry and verification of his service records, was given to him, by order issued from the office of the respondent-Commissioner, Patna Division dated 2.8.1994. He submitted that, though petitioner was appointed in 1982, without advertisement, but the fact that, his appointment was approved by the competent authority, and time to time, orders were issued by the higher authorities, in respect of his transfer, confirmation of his services and grant of time bound promotion, gives finality to the matter of employment of the petitioner in government service. He submitted that, all the authorities, including higher authorities at the directorate level were aware of his employment and his service conditions from the very beginning. Therefore, after passage of more than 20 years, respondents cannot go back and - 7 - hold the appointment of petitioner as illegal and void, without fixing any responsibility on the authorities, who time to time dealt with his services and issued orders and continued him for such a long period. He submitted that, in case rules and norms of appointment were not followed in the appointment of the petitioner, it was the government authorities at different level who were squarely responsible for the same and therefore, before terminating his services, on the ground of such illegality committed in his appointment, the State Government was obliged to take action against the authorities who were responsible for such appointment and his continuance for more than 20 years. He submitted that it is not the case of the respondents that petitioner played any fraud or committed any forgery or misrepresented or concealed any fact for his appointment or during his service for his continuance. It is also not the case of the respondents that they were not aware of the nature of his employment till now and have become aware of the same for the first time after 20 years. In the circumstances when there is no allegation against the petitioner of having committed any act or omission on his part, inducing the respondents to make his appointment and continue him in service for more than 20 years, respondents should not be allowed to go back and upset the appointment now. He submitted that this situation was noticed by the Constitution Bench in the case of Uma Devi (supra) in - 8 - paragraph 53 of the judgment wherein, while directing the respondents and all public authorities to consider the cases of absorption of temporary employees continuing for more than ten years and found to be irregularly appointed, as a one time measure, it was also laid down, in clear terms, that the matters, which are finally closed without any intervention of the court, should not be reopened. He submitted that, confirmation of the services of the petitioner by the authorities at the level of the Deputy Director, grant of first time bound promotion to him by the Divisional Commissioner, on the recommendation of the Deputy Director and after approval of the Accountant General, after due scrutiny of his service records and terms and conditions of his service, put a seal to the appointment of petitioner and the respondents were not entitled to reopen the same. 6. This submission of the learned counsel for the petitioner was noticed by this Court on 5.8.2009 and learned counsel for the State was allowed time to find out as to whether the Deputy Director, Health services was competent authority to confirm the services of the petitioner, or not, at the relevant time. In spite of repeated adjournments thereafter, respondents have not brought anything on record to show that Deputy Director, respondent no.5, was not the competent authority to confirm the services of the petitioner. Therefore, in the light of the - 9 - observations and earlier orders passed in this case, this Court assumes that petitioner’s services were confirmed by the competent authority, and he was granted first time bound promotion under the orders of the competent authority, after due verification and scrutiny of his service conditions and relevant papers. The question arises whether petitioner is entitled for protection on the basis of the said exception carved out by the Constitution Bench in the said paragraph, which reads as follows :- “We also clarify that regularization, if any already made, but not sub judice, 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 per the constitutional scheme.” 7. True, it is that, the Apex Court in the case of State of Bihar Versus Upendra Narayan Singh (surpa), and the Division Bench of this Court in the case of Hemkant Jha (supra), as relied upon by learned counsel for the respondents, do clearly lay down that appointees, whose appointments are found to be illegal, have no right to continue in service, and such continuance do not confer any right upon them. But those judgments, relied upon by learned counsel for the respondents, are on the lines of general ratio laid down in the case of Uma Devi (surpa). The Constitution Bench in Uma Devi’s case has discussed, in detail, the circumstances in which appointments which could be held as illegal and appointments which - 10 - could be held to be irregular. It did hold that illegal appointees had no right to continue in service. It was only in the case of irregular appointees that the Constitution Bench directed the respondents, as one time measure, to consider cases for their absorption/regularization, in case they had continued for more then ten years. But it is clear that, the Constitution Bench was also aware of such situations in which such appointments may have been confirmed by the authorities bestowing finality to the transaction. Therefore, as an exception to the rule of discontinuance of all illegal appointments, the Constitution Bench did lay down that if appointments had matured into a regular appointment by its regularization, without any interference by a court of law, the same was not required to be interfered with in the light of the principles laid down by it. This aspect of the matter does not appear to have been noticed either by the Apex Court in the case of Upendra Narain Singh (supra) or by the Division bench of this Court in the case of Hemkant Jha (supra). Those judgments were rendered on the general principles laid down by the Constitution Bench. The exception to the rule which was also part of the conscious decision of the Constitution Bench was not noticed in either of them. 8. In the present case, service of the petitioner was not confined to a Muffasil office and was not restricted to consideration at the lower level of the - 11 - administrative rug of the Government. It is not denied that his services were transferred to the office of the Deputy Director (respondents no.5) and was confirmed also by an express order of the said Deputy Director and later on, three authorities, namely, respondent Deputy Director, the Accountant General and the Commissioner, Patna Division, were involved in grant of first time bound promotion to him. Actions of the higher authorities pre-suppose that they had knowledge of the nature of his appointment and his service conditions and at that point of time they did not find anything objectionable to the same. Thus, their action renders finality to the appointment of the petitioner and his continuance in service as a regular employee, upon confirmation by the competent authority as high as Deputy Director. Hence, in the facts of the case, said exception laid down by the Constitution Bench, as quoted above, comes into play in favour of the petitioner and respondents are therefore, not at liberty to reopen the question of legality of his appointment. The only course open to the respondents was to take action first against all the authorities involved in dealing with the services of the petitioner at different levels and at different point of time, by fixing their responsibility for not obeying the government orders and circulars laying down mode and manner of appointment of a government servant and for continuing the petitioner in service - 12 - for so long with benefits of confirmation, grant of time bound promotion etc., and then only discontinue the services of the petitioner. 9. In the result, the writ application is allowed. The impugned order of termination of services of the petitioner as contained in Annexure- 13 is quashed. Respondents are directed to reinstate the service of the petitioner with all consequential benefits from the date of issue of said impugned order within three months from the date of receipt/production of a copy of this order. Patna High Court, Patna The 3rd February, 2010 A.F.R. (B.T.) (Jayanandan Singh, J.)