IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8069 of 2006 Ratnesh Kumar Choudhary, son of Shri Sundeshwar Prasad Choudhary, resident of A/325, A.G.Colony, North of Indira Gandhi Institute of Medical Sciences, P.S.- Shastri Nagar, Patna (Bihar) …… Petitioner Versus 1. The State Of Bihar through its Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. Department of Health, Govt. of Bihar through its Secretary 3.Board of Governors, Indira Gandhi Institute of Medical Sciences through its Director, Sheikhpura, Patna, Bihar 4. Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna, Bihar through its Director. …….. Respondents ----------- For the Petitioner : Mr.Ganesh Pd.Singh, Sr.Adv. with Mr.Pramod Kumar, Adv. For the State : Mr.Alok Kr. Rahi,A.C. to S.C.12 For IGIMS : M/s Ashok Kr.Chaudhary and Manoj Madhav, Adv. ----------- 4. 04/11/2009 Heard learned senior counsel for the petitioner and learned counsel for the respondent Institute. Petitioner, in this case, has challenged the order of termination of his service issued under the signature of the Director of the Institute dated 9.4.2005, annexed as Annexure- 19. The order (Annexure-19) shows that there was some enquiry by the Cabinet Vigilance Department of the Government of Bihar in which appointment of petitioner was found illegal. In view of the said report, a show cause was asked from the petitioner which was received by the Director on 8.4.2005 and the impugned order was issued on - 2 - the very next day i.e. 9.4.2005. The order also shows that a copy of the same was sent to the Joint Secretary of the Health Department, Government of Bihar in compliance to his letter no.72(1) Health dated 9.3.2005. The said letter dated 9.3.2005 of the Joint Secretary of the Health Department is annexed as Annexure-C to the counter affidavit filed on behalf of the Institute. This letter shows that on the basis of some complaint of one Tarkeshwar Singh, an MLC, Cabinet Vigilance Department held some enquiry and submitted its report finding the appointment of the petitioner as illegal and therefore, the Health Department of the Government of Bihar took decision to terminate the services of the petitioner. By this letter, the said decision was communicated to the Director of the Institute, to take action in the matter of termination of services of the petitioner within one month after asking show cause from him. Accordingly, petitioner was asked by the Director of the Institute to show cause within three days as to why on account of illegal appointment, his services should not be terminated. Reply of the petitioner is Annexure- 7 in which, in very categorical terms, he expressed complete ignorance and lack of - 3 - knowledge about any complaint of said Tarkeshwar Singh, MLC and the enquiry held by the Cabinet Vigilance Department. In his reply, petitioner asked for copies of the same and expressed that only after getting the copies of the complaint and the Vigilance report, he will be able to file detailed show cause reply at a later date. The impugned order shows that this reply of the petitioner was received by the Director on 8.4.2005 and the impugned order was passed by him on the very next day on 9.4.2005. Facts of the case have been noticed to show that the respondents have acted in absolutely high handed manner and in utter violation of Principles of Natural Justice and the order passed is patently arbitrary and illegal as submitted by learned senior counsel for the petitioner. Learned senior counsel for the petitioner also submits that the Institute is an autonomous body and therefore, any action against the petitioner was required to be initiated and taken by the Board of Governors of the Institute, which only is the appointing authority. He also submits that even if some communication was received from the State Government, the Board of Governors was required - 4 - to hold an independent enquiry with sufficient opportunity to the petitioner before taking any action against him. In view of autonomous status of the Institute, it was not open to them to act upon any communication of the State Government directing them to terminate the services of the petitioner blind folded and treating themselves as subordinate to the State Government. Mr.Chaudhary, learned counsel appearing for the Institute does not dispute the legal propositions. However, he submits that admitted facts show that petitioner’s appointment was illegal and void. He submits that advertisement was published for appointment on different posts in the Institute including one post of Physiotherapist and one post of Chest Therapist. He submits that petitioner had applied for Physiotherapist, therefore, his application could be considered only against vacant post of Physiotherapist, so advertised, and not against the post of Chest Therapist, against which he was appointed. He submits that the Selection Board transgressed its jurisdiction in appointing petitioner on the post of Chest Therapist for which petitioner had not even applied. He submits that admitted facts undisputedly establish the illegal and void - 5 - nature of appointment and thus compliance of Principles of Natural Justice was not required to be done in the present case as no prejudice was caused to the petitioner by not giving him opportunity to show cause. In support of this submission, he has relied upon a judgment of the Apex Court in the case of Hoshiar Singh Vs. State of Haryana, reported in AIR 1993 SC 2606. Learned senior counsel for the petitioner, in reply, submits that the Selection Committee had power to relax the conditions of advertisement and therefore in absence of any suitable candidate for appointment as Chest Therapist, they had the authority to relax the requirement and appoint suitable applicant for Physiotherapist as Chest Therapist. In support of this submission, he has relied on a decision of this Court in the case of Shivendra Kumar Shahi Vs. State of Bihar, reported in 2003(3) PLJR 144, in which case this Court in the case of present Institute itself has held that the Selection Committee had the power to relax the requirement for appointment in a particular case. Learned senior counsel for the petitioner further submits that in no Institute of this Country there is separate post of Chest - 6 - Therapist and the Chest Therapy is treated as part and parcel of Physiotherapy. Considering the rival submissions of learned counsels for the parties, two facts stand established, namely, (i) petitioner was all through in dark till the receipt of his termination letter as to on what grounds his services were terminated and he was not given any opportunity at any stage and was not furnished the required documents, to meet the grounds, which was found established by the Cabinet Vigilance Department, to hold his appointment illegal and (ii) no fraud has been alleged on the part of the petitioner to have been played by him in obtaining the appointment. It was fairly accepted by Mr.Chaudhary that petitioner had applied for Physiotherapist and he did not play any fraud with the Selection Committee or in the selection process to obtain his appointment as Chest Therapist. He has also fairly submitted that it was the members of the Selection Committee who had transgressed their jurisdiction in relaxing the terms and conditions of the advertisement which power they did not had. Fact remains that learned counsel for the respondent Institute could not answer the query - 7 - of this Court as to why no action was taken against the members of the Selection Committee as such for so alleged arbitrary powers exercised by them. He also could not reply to the query of this Court that the Institute being autonomous body, as to how it could act blind folded on the dictate of the State Government treating itself as subordinate to the State Government and authorities of the Department. Apparently, petitioner is at receiving end for no fault of his. His services have been terminated, keeping him in complete dark, without affording him any opportunity, without furnishing any documents to him whatsoever, without apprising him about the complaint against him and the enquiry and findings against him. Had the petitioner been given the opportunity, in probability, he would have taken grounds to defend his case, on the lines of the arguments advanced by his learned senior counsel here, before the Director. The denial of such an opportunity, indeed, has caused prejudice to him. Mr.Chaudhary has vehemently argued that the Selection Committee had traveled beyond its jurisdiction to appoint petitioner on the vacant post of Chest Therapist while he had applied - 8 - only for Physiotherapist. If that is so, the Board of Governors of the Institute, in all propriety, should have initiated and taken action against the members of the Selection Committee first, which they can always do, before initiating any action for terminating services of the petitioner. That having not been done, apparently, the petitioner, who is not guilty of any misconduct, is being victimized for illegal acts of the members of the Selection Committee, who have been left scot-free by the Management of the Institute. In the circumstances, this Court does not find any valid reason at all to uphold the validity of the impugned order (Annexure-19), which is hereby quashed. Petitioner shall be treated as in service with all consequential benefits from the date the impugned order came into effect. Pradeep/ (J. N. Singh, J.)