IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16284 of 2007 Md. Israil, son of Md. Jamaluddin, resident of Village & P.O. Baligawan, P.S. Hayaghat, Dist. Darbhanga. -------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner cum Secretary, Department of Health and Family Welfare, Govt. of Bihar, Patna. 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna. 4. The Regional Dy. Director, Health Services, Darbhanga Region, Darbhanga. 5. The Civil Surgeon cum Chief Medical Officer, Madhubani. 6. The Medical Officer in charge, Primary Health Centre, Basopatti, in the District of Madhubani. --------- Respondents ------------------- 2 19-12-2011 Heard learned counsel for the parties. In this writ application, the petitioner assails an order dated 9.9.2005 passed by the Secretary of the Health Department and its consequential order dated 5.10.2005 as contained in Annexure-10 passed by the Civil Surgeon of Madhubani. Learned counsel for the petitioner has submitted that the order passed by the Authority on 5.10.2005, terminating the services of the petitioner with effect from 28.1.1998 giving retrospective effect, cannot be sustained in law. He has further submitted that the decision for not making payment of salary for the actual work done by the petitioner runs contrary to the direction of Patna High Court CWJC No.16284 of 2007 (2) dt.19-12-2011 2 the Health Commissioner, who by order dated 9.9.2005 had directed to determine the amount payable to the petitioner. Though in this case, no counter affidavit has been filed but, from reading of the appointment letter of the petitioner, it becomes more than clear that that his so- called absorption/adjustment on the post of Basic Health Worker was itself illegal. The petitioner was said to be allegedly working as a ,sfPNd dk;ZdrkZ (Optional Worker), which had only a fixed remuneration of Rs. 50/- per month and had no prospect of either being called in regular government service or becoming eligible for appointment/absorption on a regular cadre post of Basic Health Worker. It is not in doubt that such illegal appointment was made by the Civil Surgeon in violation of the Government Rule which lay down that the basic post of Basic Health Worker has to be filled up after following the mandate of Article 14 & 16 of the Constitution of India. In that view of the matter, this Court does not find any error in the order passed by the Health Commissioner, relevant Patna High Court CWJC No.16284 of 2007 (2) dt.19-12-2011 3 portion whereof reads as follows:- ^^nksuks i{kksa ds ekSf[kd nyhy ,oa muds }kjk izkIr djk;s x;s rF;ksa@lk{;ksa dk voyksdu fd;k x;kA flfoy ltZu] e/kqcuh ds }kjk ;kfpdkdrkZ ds fo:} dkjZokbZ bl vk/kkj ij dh x;h fd foHkkxh; funs”k ds vuqikyu esa {ks=h; dk;kZy;ksa esa dk;Zjr voS/k@tkyh fu;qDr dfeZ;ksa ij dkjZokbZ dh tk;A rnuqlkj flfoy ltZu] e/kqcuh }kjk vU; dfeZ;ksa ds lkFk gh bu nksuksa ;kfpdkdrkZvksa ls Hkh fu;qfDr lEca/kh fofgr@vko”;d dkxtkrksa dh ekWx dh x;hA ;kfpdkdrkZ eks0 btjkby }kjk tks fu;qfDr i= dh izfr izkIr djk;h x;h gS] mDr vkns”k {ks=h; mi funs”kd] LokLF; lsok;sa] njHkaxk ize.My] njHkaxk dk vkns”k Kkikad& 77¼xks0½ fnukad 30-12-1987 ds }kjk fuxZr gS rFkk mDr vkns”k esa vafdr fd;k x;k gS fd eks0 btjkby] ,sfPNd dk;ZdrkZ dks cqfu;knh LokLF; dk;ZdrkZ ds in ij lek;kstu fd;k tkrk gSA mDr vkns”k xksiuh; i=kad ds vUrxZr fuxZr fd;k x;k gS tcfd fu;qfDr lEca/kh i= fu;fer fuxZr iath ls fuxZr fd;k tkrk gSA blds lkFk gh {ks=h; mi funs”kdksa dks fu;qfDr lEca/kh vkns”k fuxZr djus gsrq vf/kd`r ugha fd;k x;k FkkA lek;kstu ij fu;qfDr oSls fu;fer ljdkjh dehZ dk fd;k tkrk gS tks fdlh dkj.k ls vfrjsd gks x;s rFkk NVuhxzLr gSA ml gkyr esa muds led{k LFkkiuk esa mudk lek;kstu dj mUgsa dk;Zjr djk;k tkrk gS ysfdu ;gkW ij ,sfPNd dk;ZdrkZ dksbZ ljdkjh dehZ ugha gS] vr,o muds vfrjsd@NVuhxzLr gksus dk iz”u gh ugha iSnk gksrk gSA bl izdkj dh fu;qfDr fuxZr gksus dk dksbZ vkSfpR; ugha gSA lHkh lk{;ksa@rF;ksa rFkk ekSf[kd rdksZa dks lquus vkSj ml ij fopkj djus ds ckn ik;k x;k fd eks0 btjkby dh ;g fu;qfDr QthZ@voS/k gS] mudh lsok lEca/kh dkxtkr Hkh tkylkth ij izkIr fd;s x;s izrhr gksrs gSA blfy, flfoy ltZu dk lanfHkZr vkns”k fcydqy mfpr gSA bl voS/k fu;qfDr dks oS/k ugha ekuk tk ldrk gSA eks0 btjkby ds iwoZ ds dk;kZof/k dk dksbZ Hkqxrku yfEcr gks rks mls ekuuh; mPp U;k;ky; }kjk fu/kkZfjr vof/k ds vUnj Hkqxrku dk vkns”k fn;k tkrk gSA** Such an order of the authority, which was passed on remand by this Court in the order dated 8.7.2005 in CWJC No. 2581 of 2000, would by itself make it clear that the appointment of the petitioner on the post of Basic Health Worker was absolutely illegal Patna High Court CWJC No.16284 of 2007 (2) dt.19-12-2011 4 and in teeth of Article 14 & 16 of the Constitution rendering it to be ab-initio void. True it is that such an illegal appointment of the petitioner was sought to be brought to an end on 9.9.2005 and, therefore, the Civil Surgeon, Madhubani was not justified in terminating the services of the petitioner with retrospective effect of 28.1.1998. It has to be kept in mind that on 28.1.1998 only an enquiry was instituted and payment of salary was withheld on account of large number of fraudulent/illegal appointment having been noticed in the district of Madhubani. The petitioner’s termination of service, therefore, will of course be deemed to have been passed with effect from 9.9.2005, the date on which the Health Commissioner had come to the conclusion of the illegality in the appointment of the petitioner. As a consequence of the aforesaid findings, this Court would only modify the impugned order passed by the Civil Surgeon as with regard to termination of service of the petitioner with effect from 28.1.1998 by Patna High Court CWJC No.16284 of 2007 (2) dt.19-12-2011 5 substituting it from 5.10.2005. As noted above, the Health Commissioner himself had directed to look into the aspect as to whether the petitioner had worked from 28.1.1998 onwards so as to become entitled for payment of salary. Since, there is no counter affidavit filed by the respondents and the petitioner has made an averment that he had continued to work on the post of Basic Health Worker till 5.10.2005, this Court would direct the Director-in-Chief of the Health Services to himself enquire into the aspect and if he finds that the petitioner’s working from 28.1.1998 onwards is an admitted fact, he would make payment of salary of the petitioner for the period work was taken from him. If on the other hand he would find no evidence of working of the petitioner, he would pass a reasoned order while rejecting the claim for payment of salary of the petitioner. In the result, this application is allowed in part but, it is made clear that this Court has not interfered with the impugned order and consequential order of the authority terminating the services of the petitioner Patna High Court CWJC No.16284 of 2007 (2) dt.19-12-2011 6 and has only directed the Authority to pay salary for the period the petitioner had admittedly worked. With the aforementioned observations and direction, this application is disposed of. Rishi/- (Mihir Kumar Jha, J)