IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6041 of 2009 SRINARAYAN SINGH & ANR Versus THE STATE OF BIHAR & ORS ----------- For the Petitioners :- Mr. Ajay, Adv. For the State:- Mr. R.Priyadarshi, J.C. to A.A.G. III --------------- 2. 14.5.2009 Heard learned counsel for the petitioner and the State. It appears that the officials of the State have virtually created an industry of appointment and termination with successor officers reopening old matters. An appointment is made. It is allowed to continue for considerable time. A subsequent Officer then starts making queries. The queries are satisfied. The appointment continues. A few years later another officer comes and again seeks to reopen matters. He is again satisfied. In this manner the issue of appointment is kept alive by successive officers. This Court refrains from making any observation why such issues are deliberately kept alive. Power is given to Government officials to use it appropriately, and not to abuse it. The petitioner no. 1 was appointed in the year 1976 and petitioner no. 2 in 1981. It is stated that their books were opened, copy whereof has been annexed as Annexures-5 and 5A. They continued in service for 23 years when on 17.2.2003 show cause notice was issued by the Civil Surgeon-Cum-Chief Medical Officer recording a conclusive finding that the appointment was illegal and requiring a show cause to be filed. No reason was assigned except to state that the appointment was not made by the - 2 - Civil Surgeon. The petitioners replied to the same when on 28.12.2003 the order of retrospective termination followed at Annexure-10 with effect from the date of appointment. The order is not reasoned and does not state any grounds why the appointment was found illegal and irregular. The petitioners came to this Court in C.W.J.C. No. 4777 of 2003 and C.W.J.C. No. 5633 of 2003. The writ applications were heard and disposed by a common order with L.P.A. No. 946 of 2003 and analogous cases when the matter was referred to be examined by a committee to be constituted by the State Government, the committee has now submitted its report. Learned counsel for the petitioners submits that the name of the petitioner no. 1 find no place in the report of the committee while petitioner no. 2 is held not to have been appointed by the competent authority. Reliance is also placed on an order of this Court in C.W.J.C. No. 4702 of 2003 and analogous cases disposed off on 8.9.2003. In the aforesaid writ petition also issues were of allegedly wrong appointments continued for long years when petition was allowed holding that respondents could not be permitted to reopen matters at such belated stage. Emphasis is laid on the observations of this Court at Para 11 of the judgment, which this Court considers appropriate to quote below:- In no case, it is pointed out that by learned counsel appearing on behalf of the State that appropriate action has been taken against such authority, who made such appointments and allowed the appointees to continue in services for long. In the given facts and circumstances of the case, the beneficiaries and - 3 - the authorities, who conferred such benefits, are equally accountable for the irregular and invalid appointments and the appointments, if any, found to be invalid after lapse of a decade, such appointments, in my opinion, should be saved on equitable consideration. A specific statement has been made in Paragraph 36 of the writ application that when the matter was being examined by the committee in pursuance of the order in L.P.A. No. 946 of 2003 no notice was issued to the petitioners nor were they heard with an opportunity to present their case. Learned counsel for the State submits that he may be granted time to file counter affidavit. This Court does not consider it necessary to adjourn the matter for that purpose in view of the order to be passed hereinafter from the facts on record and the documents of the respondents themselves, as also from certain earlier orders of this Court noticed above. Learned counsel for the respondents is not in a position to controvert and demonstrate from the enquiry report, appended to the writ petition, that it even considers the case of petitioner no. 1. From the enquiry report annexed to the writ petition, there is no discussion of any individual notice having been issued to the petitioners and finding of service of the same. Even otherwise, there is no consideration therein of any defence of the petitioners or a finding of refusal on part of them to participate in the enquiry. When the employment of the petitioners was at stake and they - 4 - were to be visited with the serious civil consequence of loss of job, a mere paper publication made by the respondents as stated in the enquiry report for reasons of their own convenience, with no further details of the date and mode of such publication and no explanation why individual notices were not sent shall not be sufficient compliance with the principles of natural justice. This Court holds that the Division Bench did not grant any such liberty much less issue any mandate to the respondents to proceed in the manner that they have done. No authority much less can a Court of law can direct deviation/violation from the settled principle of law that no person can be condemned unheard. If the respondents in their wisdom have chosen to adopt a procedure contrary to law but convenient to them, it is for them to find the answer to the illegality on challenge by the petitioners. In 1996(1) BLJR 869 (Ashok Kumar Singh & Ors. Vs State of Bihar & Ors.), this Court set aside the order of punishment of dismissal on the ground of failure of the respondents to prove service of notice upon the delinquent emphasizing the consequences that had ensued upon the delinquent. On the enquiry report even if the Contention of the respondents with regard to respondent no. 2 be correct it was best a case of irregular appointment. To this Court that was the matter to be considered by the screening committee in light of the guidelines of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors since reported in 2006 (4) SCC 1. - 5 - In any event of the matter, this Court is also satisfied that when the respondents were holding the enquiry in pursuance of the orders of the Division Bench, their obligation, as noticed above, in the quote of the order of this Court in C.W.J.C. No. 4702 of 2003 was simultaneously to bring within the ambit of the enquiry those who appointed the petitioners and proceed appropriately against them either under the service rules, the Penal Code or the Bihar Pension Rules. If the respondents propose to act by a very high standard of fairness and reasonableness to terminate illegal appointments, that is the standard by which Court shall hold them to be bound and simultaneously to proceed against those who made such appointment. Whether it be, the non compliance of the principles of natural justice, the partisan conduct of the respondents seeking to protect their own officers, even while trying to defend their action by high standard of conduct, when they refuses to apply the same standard of conduct to themselves, this Court finds it difficult to sustain the action of the respondents vis-à-vis the petitioners. The impugned order dated 25.2.2009 in so far as the petitioners are concerned is set aside. This will not preclude the respondents from considering matters with regard to both the petitioners afresh but after individual notices to them. In any such proposed enquiry, the respondents are directed to bring within the ambit of the same, the officers who appointed the petitioners and - 6 - those who continued to take services from them paying wages to them from government coffers and proceed appropriately against them also when the question of recovery of wages from those who made the appointment retained the services apart from their prosecution will also arise. The petitioner shall be reinstated subject to the above. The writ application is allowed with the liberty to the respondents as aforesaid. P. Kumar (Navin Sinha, J.)