IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10622 of 2006 Ram Kumari Devi, wife of Sri Kamal Paswan, resident of village- Ekhatha, P.S. Khutauna, District- Madhubani ………. Petitioner Versus 1. The State Of Bihar, through the Secretary, Department of Health, Government of Bihar, Patna 2. Director-in-Chief, Health Services, Govt. of Bihar, Patna 3. Civil Surgeon-cum-Chief Medical Officer, Madhubani 4. Incharge Medical Officer, Referal Hospital, Phulparas, Madhubani …………. Respondents ----------- 4. 21/12/2009 Heard learned counsel for the petitioner and learned counsel for the State. In this writ application petitioner has prayed for quashing of order dated 22.7.2002 of the respondent Civil Surgeon and the consequential order issued by the respondent In- charge medical Officer, as contained in memo no. 218 dated 26.11.2002 (Annexure–3), terminating her services after about 17 years of her working on a sanctioned post and for a direction also to the respondents to allow her to work on the post she was holding. As per the case of petitioner, she was appointed as trained midwife, along with others, by an order of the respondent Civil Surgeon - 2 - dated 26.12.1985 (Annexure – 1) and was directed to join at the Primary Health Centre, Biraul. By Annexure–2 dated 4.8.1988, an order of the Deputy Director, Health Services, Darbhanga Division, she was transferred to Referral Hospital Phulparas. While working there, she has received the impugned memo, from which it appears that the respondent Civil Surgeon, on the complaint of son of one Kalia Devi, had directed the respondent In-charge Medical Officer to terminate the services of the petitioner and submit compliance report, in compliance to which the In-charge Medical Officer forwarded a copy of the same to her intimating her that her services are terminated from the date of issue of the order. After receipt of the said order, petitioner filed a representation before the respondent Civil Surgeon (Annexure – 4) for restoration of her services, on which no orders have been passed till now. It is contended that the impugned order has been issued without any notice or show cause to the petitioner, without any inquiry under the Rules or under Article 311(2) of the - 3 - Constitution of India and as such the same is in violation of Principles of Natural Justice, against equity and fair play, violative of principles of legitimate expectation, as the same has been issued after 17 years of her service, in violation of Articles 21 & 141 of the Constitution of India, malafide in law and fact and in arbitrary exercise of powers and therefore in violation of Article 14 of the Constitution of India. Respondents have filed counter affidavit as well as supplementary counter affidavit in the case. It is stated that an earlier case, namely C.W.J.C. No. 10464 of 1994 was dismissed by this Court by order dated 22.9.1994 in which this Court had observed that “voluntary worker in the Health Department are not entitled for scale of pay as they are not on regular post in the department.” In the said order it was also observed that petitioners carrying an honorarium of Rs.50/- had no right to such engagement and appointment without considering the case of others, and direction was issued to the Civil Surgeon to look into the matter and pass appropriate orders in respect of similarly - 4 - situated persons. The said order has been annexed with the counter affidavit as Annexure– A. It is said that thereafter the Deputy Director, Health Services, vide his letter no. 317(F.P.) dated 22.4.1995, directed respondent no.4 to enquire into the matter and pass appropriate orders in this regard. Respondent no.3, in compliance of this Court‟s order, enquired and those who were found absorbed in Government service from voluntary worker were terminated. However, by mistake petitioner‟s matter was not examined in this light. When one Sandeep Kumar, son of a discharged employee informed respondent no.3 (Civil Surgeon), he issued the letter to respondent no.4 to enquire and pass necessary order in this regard, vide Annexure–3. It is contended in the counter affidavit that petitioner and several similarly situated persons were asked several show cause but the present petitioner did not submit any reply in this regard. It is lastly said that when it was located that petitioner was absorbed in government service from voluntary worker, she was terminated from service, vide memo no.218 dated 26.11.2002. - 5 - A supplementary counter affidavit has been filed by the respondents which is also on the same line. It is stated therein that, as per the directions of this Court, the respondent Civil Surgeon, Madhubani directed the Subordinate Health Authorities to send service records of the persons who were engaged as voluntary workers. Service records were received and after proper scrutiny and checking services of 128 persons were terminated in the year 1995. Petitioner some how managed at the local level to continue in service. However, it was brought to the notice of C.M.O. (Civil Surgeon) in 2002 that petitioner was promoted from voluntary worker to the post of female ward attendant and was still working, whereas similarly situated persons were terminated in 1995 itself. Hence the C.M.O. instructed the In-charge Medical Officer to terminate the services of the petitioner and to send compliance report, vide memo no. 1564 dated 27.2.2002 (impugned in this case). Copy of the said memo has been annexed as Annexure–B with the supplementary counter affidavit. Accordingly the In-charge Medical Officer, Phulparas, has terminated the services - 6 - of the petitioner by memo no.218 dated 26.11.2002 (also impugned in this case). The compliance report of the In-charge Medical Officer has been placed on record, along with Annexure – B, which is at page 35 of the brief. Lastly, it is stated that all the orders of termination have been passed in compliance to the said order of this Court and submission of the grounds of challenge to the impugned order contended in the writ petition has been denied. From the pleadings of the parties, it is clear that the sheet anchor of the case of the respondents is the order dated 22.9.1994 of this Court passed in C.W.J.C. No. 10464 of 1994. Respondents have produced a copy of the said order with their counter affidavit as Annexure – A. From the reading of the order, it appears that learned counsel for the petitioner of the case had conceded that „voluntary workers in the Health Department are not entitled to scale of pay and that they are not on regular post in the department.‟ But the order shows that the Division Bench did not hold that in no circumstances a voluntary worker could be appointed and engaged against post with regular - 7 - scale of pay. The Bench only found that the petitioners of the case were subsequently engaged on daily wage basis in 1990 and then appointed on substantive post carrying regular scale of pay in 1992 “without considering the inter-se claim of other intending eligible persons, who might be more suitable for such appointment and engagement.” The Bench, therefore, held that “the appointments were made in utter disregard of the mandate of Article 14 of the Constitution.” It held that,”that being the position the orders were void ab initio.” The Bench further observed that “the petitioners having been engaged initially as Voluntary Workers, which is not a regular post in the Health Department, carrying honorarium of Rs.50/-, they had no right to such engagement and appointment without considering the cases of others.” Therefore, the Division Bench did not interfere with the impugned order by which such appointment of petitioners of the case were cancelled. Thereafter, on the submissions of learned counsel for the petitioners of the case that, similarly situated persons, appointed later on, have been retained on the posts, - 8 - whereas petitioners of the case have been singled out, the Court directed the Civil Surgeon to look into the matter and pass appropriate order in respect of similarly situated persons also. It is clear from the order of the Division Bench that it did not altogether rule out engagement or appointment of a voluntary worker as daily wage employee or as a regular employee on a regular post carrying regular pay scale. It only found that it could not be done on selective basis without considering the rival claims of other eligible or better suited persons. It is true that voluntary workers, as it is, were held not entitled for regular pay scale, as the posts were not regular posts of the department. But the said order makes it clear that they could be engaged or appointed against regular posts in consonance with mandate of Article 14 of the Constitution of India. Secondly, the issue before the Division Bench, it appears, was confined only to engagement or appointment of a voluntary worker against a regular post carrying regular pay scale. There is nothing in the order to show that the very - 9 - engagement of the concerned voluntary worker on honorarium had to be terminated. The stand of the respondents shows that they took the said order of the Division Bench as a decree to terminate the very services of the voluntary workers, and not only their subsequent appointment on a regular post carrying a regular pay-scale. As noticed above, this was not the spirit of the order of the Division Bench. The impugned order, Annexure–3, and the consequential order of the In-charge Medical Officer dated 26.11.2002, were passed only on a complaint of a son of relieved employee and only on the premises that services of others appointed/promoted/regularized have already been terminated in 1995. Apparently no notice, whatsoever, was given to the petitioner, with an opportunity to her to explain her position and justify her continuance, before termination of her services. Annexure – 3 shows that, the order of the respondent Civil Surgeon was itself forwarded to the petitioner by the In-charge Medical Officer under memo no. 218 dated 26.11.2002 with order of termination of her services. Obviously there - 10 - was a complete violation of Principles of Natural Justice, which itself makes the order as unsustainable. However, the pleadings in the writ petition and the submissions of learned Counsel for the petitioner has remained confined to the legal infirmity in the impugned order, issued in violation of Principal of Natural Justice and etc. and after 17 years of service. Learned Counsel for the petitioner has also not advanced any submission to the effect that petitioner was not covered by the said order of the Division Bench. Besides assailing the impugned order on purely legal grounds, he has only raised grievance about non-consideration of the representation of the petitioner, annexed as Annexure – 4 with the writ application, filed after receipt of the impugned order, with a request to retain her in service. Therefore this Court is of the opinion that, justice demands that, petitioner should be given an opportunity to represent her case before the respondents for recall of the order of her termination and for retaining her in service, and the respondents should be directed - 11 - to consider her pending representation as well as any fresh representation she may file. In the circumstances, petitioner is given liberty to file a detailed representation before the respondent Civil Surgeon along with a copy of this order, giving all the facts and circumstances in support of her claim for her continuance in service. Even if she does not file any new representation, respondents shall consider the representation already filed by her and annexed as Annexure–4 to the writ application. This consideration must be done within 3 months from the date of receipt/production of a copy of this order. The orders impugned shall remain in abeyance till then and the respondent Civil Surgeon shall apply his independent mind to the case of the petitioner in accordance with law and without referring to or being prejudiced by his earlier order. For proper consideration of the case of the petitioner, he may hear her or her representative before passing the final order. It is made clear that in case he does not pass a fresh order within the stipulated time, or the order is passed in her favour, the orders - 12 - impugned shall stand quashed and petitioner shall be entitled to be restored in service with all consequential benefits from the next day of expiry of the said 3 months. The writ application is accordingly disposed of with the aforesaid observations and directions. Let a copy of this order be handed over to learned counsel for the State. Pradeep/ (J. N. Singh, J.)