IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14532 of 2009 Dinesh Prasad Kapri, aged about 43 years, son of late Prabhu Narayan Kapri, Health Educator, Additional Primary Health Centre, Balwa Madhwapur, Madhubani, present address resident of village Simari (via Arer Hat), P.S. Bisfi, District Madhubani … Petitioner Versus 1. The State Of Bihar through the Director-in-Chief, Health Services, Bihar, Patna 2. The Commissioner cum Secretary, Health Services, Bihar, Patna 3. The Deputy Director, Health Services, Bihar, Patna 4. The Regional Deputy Director, Health Services, Bihar, Patna 5. The Civil Surgeon cum Chief Medical Officer, Madhubani North Bihar 6. The Incharge Primary Health Centre, Madhwapur, Madhubani, North Bihar … Respondents ---------------------------------- 5. 17.11.2011 Heard counsel for the parties. In this writ application the petitioner has assailed his order of termination of service dated 25.5.2001, whereby and whereunder the services of the petitioner alongwith ten others were terminated by the Civil Surgeon of Madhubani District on the following grounds: ^^oS/k@QthZ fu;qfDr dk vk/kkj 1- lk{kkRdkj i= dk fuxZr ugha gksukA 2- p;u lfefr }kjk fu;qfDr dk vuq'kalk ugha gksukA 3- vkj{k.k fu;e dk [kqYye&[kqYyk mYya?ku gksukA 4- LokLF; izf'k{kd dh fu;qfDr dk vf/kdkj flfoy ltZu esa lfUufgr ugha gksus ds rRijkUr Hkh fu;qfDr dk gksukA 5- fu/kkZfjr varfoZ{kk dh frfFk ds iwoZ gh fu;qDr gks tkukA** Mr. Ajay Kumar Chakraborty, learned counsel for the petitioner, would submit that the petitioner was appointed by the competent authority. namely, Civil Surgeon cum Chief Medical Officer, Madhubani after following the prescribed procedure on the post of Health Educator in the pay scale of Rs. 2 730-1080 and as such, the petitioner ought to have not been removed from service after continuing for more than eleven years. He has also highlighted that there was no flaw in the process of appointment of the petitioner, inasmuch as such an appointment was made pursuant to an advertisement issued by the Civil Surgeon cum Chief Medical Officer in local daily „Hindustan‟ dated 17.9.1989. He has submitted that the petitioner had moved this Court against the order of termination in C.W.J.C.No. 2065/2008 which was disposed of by an order dated 9.7.2008 with a direction to the authorities to communicate the decision taken by the Committee as with regard to regularization of service of the petitioner on the plea that he had continued in service for a period of more than ten years. Mr. Chakraborty in this regard has drawn attention to Annexure „B‟ to the counter affidavit wherein as against the name of the petitioner the Committee is said to have declared his appointment as “illegal” only on the ground that his appointment was not made by the competent authority. He would submit that similar appointments have also been approved by the same Committee as a result whereof 91 of them had been also regularized in service by an order dated 20.9.2007 but the petitioner has not been given the same relief and as such, stands discriminated. The counter affidavit filed by the respondents would reveal that as a result of a direction of the Division Bench of this Court in L.P.A.No. 946/2003 (State of Bihar vs. Purendra Solankit & ors.) disposed of on 26.6.2006 and reported in 2006(3) PLJR 3 386 a five men enquiry Committee had gone into the legality or otherwise in the appointment of more than 800 persons including the petitioner and it was found that the appointment of the petitioner was made by an incompetent authority, namely, Civil Surgeon who had no power to make appointment on the post of Health Educator which was State cadre post. In the considered opinion of this Court if the process of appointment as a whole was followed by the Civil Surgeon who had also advertised the post as claimed by the petitioner and the appointment of the petitioner was made by the Civil Surgeon way back in the year 1989, it would be too late in the day to cancel the appointment of the petitioner only on the ground that the Civil Surgeon had no such jurisdiction to appoint the petitioner. There is, however, a difficulty in accepting the submission of Mr. Chakarborty that the appointment of the petitioner was made in pursuant to any advertisement, inasmuch as the appointment letter of the petitioner itself goes to show that such an appointment was made pursuant to a direction issued by the Deputy Director of Health Services (Tuberculosis). Once this aspect would emerge that the appointment of the petitioner was made in the year 1989 on a direction of the authorities of Tuberculosis wherein a large number of illegal appointments were detected properly known as „Mallick Appointment‟, it would be difficult for this Court to accept the plea of the petitioner that he was appointed after following prescribed procedure especially when the impugned order of termination categorically records that such appointment of 4 the petitioner was made without issuance of any advertisement and/or interview letter and/or undergoing any procedure of selection as well as in violation of the Government Rules of Reservation and Roaster. In such a situation, this Court would find it expedient in the ends of justice to remit the matter to the Principal Secretary of the Health Department, inasmuch as the earlier decision by the five men Committee seems to have been taken under the Chairmanship of the Director-in-Chief. The petitioner will have the liberty to establish that his appointment was made pursuant to an advertisement contained in Annexure 1 to the writ application and also after following the prescribed procedure. If the authorities would find that only flaw in the appointment of the petitioner was the jurisdiction of the Civil Surgeon and all other prescribed procedure in the appointment was followed and the appointment of the petitioner was not fall out of “Mallick Appointment”, it would decide the case of the petitioner on the same footing in which case 91 of other similarly situated persons were allowed with the benefit of regularization of their service. If, on the other hand, the Principal Secretary, Health, would find that the appointment of the petitioner apart from being made by an incompetent authority was also in violation of mandate of Articles 14 and 16 of the Constitution of India and if the reasons mentioned in the order of termination of service by the Civil Surgeon is substantiated, he would pass a speaking order rejecting the claim of the petitioner. It is made clear that this Court has expressed no 5 specific opinion on the merits of claim of either parties and has simply remitted the matter back to the Principal Secretary for taking an appropriate final decision. The said exercise, therefore, must be completed within a period of six months from the date of filing of the representation by the petitioner enclosing a copy of this order and any other evidence. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/