IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.114 of 2009 INDRASAN SINGH, SON OF LATE RAM VYAS SINGH, RESIDENT OF VILLAGE- ARAK P.S. KRISHNABARHAM, DISTRICT- BUXUR ……. PETITIONER. Versus 1. THE STATE OF BIHAR through the Secretary, Department of Health, Govt. of Bihar, New Secretariat, Vikash Bhjawan, Bailey Road, Patna. 2. The Joint Secretary, Department of Health Medial Education and Family Welfare Government of Bihar, Patna. 3. The Deputy Secretary, Department of Health Medial Education and Family Welfare Government of Bihar, New secretariat Patna. 4. The Director-in-Chief, Health Services Bihar, Patna , New Secretariat, Vikas Bhawan, Bailey Road, Patna. ………………. Respondents. For the petitioner: Mr. Ashok Kumar Sinha Mr. Mithilesh Kr. Sinha. For the State : Mr. Sheojee Prasad, G.P.-2 Mr. Prabhat Bharati, A.C. to G.P.-2 ----------- 4. 27.11.2009 Heard the counsel for the petitioner and the counsel appearing for the state. Counter affidavit has been filed on behalf of the state. Petitioner’s prayer is for quashing order No. 1577(5) dated 18.10.2008 issued by the Secretary, Department of Health, Govt. of Bihar, Patna whereby petitioner’s appointment has been held to be illegal on the basis of report submitted by Five Men Committee constituted in compliance of the direction in L.P.A. No. 946/03. A large number of appointees, working in the Health - 2 - Department, on different post at different places, were terminated on the ground that their appointments were not made following the procedure for legal appointment. It was made without observing the rules for appointment. Reservation roasters were not observed and the appointing authorities were not competent to make such appointments. Such termination orders were challenged by the employees by filing writ applications. A batch of cases were decided by this court, termination orders were quashed and guideline was given to examine the legality of appointment by categorizing them in three groups. The State of Bihar preferred several L.P.As. and those L.P.As. with writ application were decided analogous with L.P.A. was 946/03. Petitioner, in this application, was initially appointed in the year, 1984 on daily wages in the Engineering Cell of the Health Department on class-III post of typist. Petitioner represented his case for regularization which was forwarded by the Executive Engineer, Engineering Cell with his recommendation for regularization. Petitioner’s case was considered by the Monitoring Cell, constituted in the Health Department for the purposes of regularization. Two posts were created for Electronic Typist and process of appointment of two newly created posts were initiated as per Circular No. 8167 dated 21st June, 1966 of the Personnel and Administrative Department as number of vacancies were less than 5 in - 3 - number. The Circular of the Personnel & Administrative Department envisages that in case vacancies are less than 5, there is no need to publish the advertisement and the applications can be called from the Employment Exchange for filling up such posts. Following this procedure, names of eligible persons were requisitioned and the petitioner, whose name was requisitioned, was appointed on the post considering his past experience. The petitioner had appeared before the Selection Committee constituted for selecting the candidates, on 26.11.1987. Entire proceeding of the Selection Committee and the final approval to the appointment of the petitioner has been annexed with the writ application. It shows that following the reservation roaster, appointment was made by the competent authority and finally, after taking opinion of Chairman and Secretary, Bihar Subordinate Service Selection Board, approval was accorded to the appointment of the petitioner by the concerned Minister. The petitioner was finally absorbed on regular basis on the post on 25th November, 1997. Despite all these facts, the petitioner was terminated from service on account of resolution taken by the State that persons employed or engaged on daily wages after 01.08.1985, should be disengaged from their services. In the light of the policy decision of the Govt of Bihar, the petitioner was terminated from his service by order dated 08.06.1993, ignoring all subsequent developments, taken place in the case of the petitioner. The - 4 - termination order was challenged by the petitioner by filing C.W.J.C. No. 7590 of 2002 which was quashed and writ application was allowed by a common order dated 08.09.1993. However, L.P.A. No. 350/04 preferred by the state in the case of the petitioner, was not taken up analogous with L.P.A. No. 946 of 2003 but it was later on disposed of in the light of direction issued in L.P.A. No. 946/03 and analogous cases. The case of petitioner was also considered by Five Men Committee and his appointment was held to be illegal. Counsel for the petitioner submits that finding has been recorded in his case by Five Men Committee ignoring all relevant decisions taken by the respondents themselves. Initially, he was appointed on daily wages but his appointment was validated by following the procedure for regular appointment. It was also approved by the competent authority. The petitioner was regularized/absorbed on his post. Service book was opened, as such, in this case, Five Men Committee should not have recorded finding that it was an illegal appointment. For all purposes, it was a legal and valid appointment. He should not have been terminated from his post just by recording the finding that it is an illegal appointment. Being a regular employee, he should have been terminated from his post following the procedure applicable in the case of regular employee as provided under Article 311 of the Constitution of India. - 5 - Counter affidavit has been filed on behalf of the state. In Paragraph-9 of the counter affidavit, it is stated that in compliance of the order of the High Court dated 06.02.2007 passed in L.P.A. No. 350/04, the appointment of the petitioner was re-examined and it was found that without any recommendation of the Bihar Subordinate Service Selection Board, the petitioner was absorbed/regularized on the post of typist for which the Department of Health was not competent. While making such statement in the counter affidavit, the documents which have been annexed by the petitioner in support of this fact that even the Chairman and the Secretary of Bihar Subordinate Service Selection Board were asked to give their opinion in relation to the petitioner and their opinion was that the Department can proceed with the matter as the Subordinate Service Selection Board has never conducted any selection test for the post of typist for electronic typing. After obtaining permission from the competent authority, the Department had proceeded with the appointment of the petitioner, following the circular of Personnel Department, applicable in case vacancy is for less than five posts. Counsel for the petitioner has placed reliance on a decision reported in 2009(4) PLJR 73 SC wherein in the similar circumstance; the questions relating to appointment, where the vacancies were less than five in number, has been considered and held that if appointment is made on requisition of names - 6 - from the Employment Exchange, considering the merit of such names, such appointments cannot be categorized as illegal. I find that the Enquiry Committee has recorded its finding without considering, relevant documents, relating to petitioner’s appointment. The approval had also been accorded to the petitioner’s appointment by a competent authority, petitioner was absorbed on his post and became a regular employee. Considering all these facts, the order No. 1577(5) dated 18.10.2008 issued by the Secretary, Department of Health, Govt. of Bihar, whereby the petitioner’s appointment has been put in the category of illegal appointment and terminating him from service, is quashed. Respondents are directed to reinstate the petitioner with all consequential benefits. This writ application is, accordingly, allowed. Akv/ (Mridula Mishra, J.)