IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7049 of 2007 Jitendra Prasad Singh, Son of Sri Banaras Singh, R/o-Vill.-Sultanpur (Madhya Tola), P.S.-Mohiuddinagar, District-Samastipur, Clerk, Annugrah Narayan Magadh Medical College Hospital, Gaya. –Petitioner. VERSUS 1. The State of Bihar. 2. The Health Commissioner, Health and Family Welfare Department, Government of Bihar, Patna. 3. The Deputy Secretary, Health and Family Welfare Department, Government of Bihar, Patna. 4. The Director-in-Chief, Health Services, Bihar, Patna. 5. The Superintendent, Anugrah Narayan Magadh Medical College Hospital, Gaya. 6. The Accountant General, Bihar, Patna, Beerchand Patel Path, Patna. -Respondents. ----------- For the Petitioner : M/s Rajendra Prasad Singh, Sr. Adv., Rajeev Kumar Singh, Onkar Kumar, Naujot Yeshu & Ramakant Singh, Advocates. For the State : Mr. Rajesh Kumar Sinha, AC to G.P.-21. For the Accountant : Mr. L.P.K. Rajgriha. General --------------- 06 22.04.2011 The petitioner has challenged the order of the State Government dated 04.04.2007, as contained in Annexure-1 to the writ petition, by which observing that the appointment of the petitioner and eight others having been found to be irregular by the Accountant General in its report no.293/2005-06, they are to be terminated. It lists nine persons. The consequential order is then passed in respect of six persons only and three are left as they were. Petitioner has brought further on record the other three who were similarly situated and subject matter of the audit are till date continues as regular employee. Counter affidavits have been filed with rejoinders. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing in support of the writ petition submits that the audit objection has been raised on a technical plea that the Superintendent of M.G.M. College & Hospital at - 2 - Jamshedpur did not appear to be competent to appoint the petitioner in Class-III post in the hospital. It is from that position he was subsequently by Government orders transferred to A.N.M. Medical College & Hospital, Gaya and it is very that post at Gaya he has now been terminated by the impugned order. He points out that both the Accountant General and the State when it passed the termination order forgot and/or ignored earlier Government orders dated 18.05.1989 and 31.05.1989, by which the former issued by the State Government to the Superintendent, A.N.M. Medical College, Gaya he was directed to regularize their services and by the later dated 31.05.1989 as per Government decision it was directed that the petitioner and others are regularized in Class-III post and should accordingly be paid their wages. These were in reply the queries raised by the Superintendent of A.N.M. Medical College, Gaya with regard to validity of petitioner and others appointment and transfer. This Court directed the State to produce the aforesaid letters which were Annexure-10&11 to the writ petition. State has very fairly filed supplementary counter affidavit and has accepted that those letters indeed issued by the State and have appended copies of those letters as Annexures-E&F to their counter affidavit. Thus, it is clear that the authorities have taken decision and passed the order without considering the fact that petitioner and others services were already regularized as far back as on 31.05.1989. Learned counsel for the Accountant General fairly states that these facts were not brought to the notice of the Accountant General even after query being made from the Superintendent of A.N.M. Medical - 3 - College and had it been brought to the notice, the matter has been dropped at that stage itself. Accountant General never recommended the termination of services of the petitioner. Having heard the learned counsels and considered the matter, in my view, the order of termination, which is solely based on the report of the Accountant General, cannot be sustained. As noticed above, these two letters were not disclosed to the Accountant General in earlier stage. In my view, State having accepted the authenticity and the correctness of the said two letters, it cannot now ignore the same. Thus, I have no option but to hold that the services of the petitioner and the persons mentioned in those correspondences stood regularized in the year 1989 itself and, that being so, there was no question of reopening the matter as regularization itself presupposes initial irregularity have not been committed. Thus, the impugned orders terminating the services of the petitioner cannot be sustained. The impugned order is, thus, quashed. It would be deemed that the petitioner is in service continuously with all consequential benefits. However, as the petitioner has not worked since the order of termination was passed, the petitioner would be entitled to 50% of the remuneration for the period of termination till his reinstatement but would have full continuity in service. Consequently, petitioner’s joining, upon setting aside the order of termination, would be accepted by the A.N.M. Medical College & Hospital, Gaya immediately on production of a copy of this order before him. The writ petition is, accordingly, allowed. Trivedi/ (Navaniti Prasad Singh, J.)