1 IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.4739 of 2006 ===================================== 1. Indra Bhushan Prasad , S/o Sri Anup Lal Das, R/o Village Laxmipur, P.S. Madhopur, Distt. Madhubani. 2. Nil Mohan Thakur, S/o Sri Rajeshwar Thakur, R/o Village Berma, P.S. Berma, Distt. Madhubani. 3. Indra Kant Jha, S/o Late Awadh Narayan Jha, R/o Village Berma, P.O. Berma, Distt. Madhubai. 4. Ashrafi Mahto, S/o late Fakir Mahto, R/o Village Berma, P.O. & P.S. Madhubani, Distt. Madhubani. 5. Jay Narayan Yadav, S/o Sri Anup Lal Yadav, R/o Village Birpur, P.O. Bhit Bhagwanpur, Distt. Madhubani. 6. Raj Kumar Prasad, S/o late Sri Muratlal Prasad. 7. Bijay Kumar Prasad, S/o Sri Bhagwat Prasad. 8. Vijay Kumar Jha, S/o Sri Daya Kant Jha. All resident of village Berma, P.S. Berma, Distt. Madhubani. 9. Usha Jha, W/o Late Ramakant Jha, R/o Village Barsham, P.S. Bheja, Dist. Madhubani. .... .... Petitioners Versus 1. The State of Bihar. 2. Director in Chief, Health Services, Govt. of Bihar, Office at New Secretariat, Beli Road, Patna. 3. Regional Deputy Director, Darbhanga Division, Office at Darbhanga, Distt. Darbhanga. 4. Civil Surgeon cum Chief Medical Officer, Madhubani, Distt. Madhubani. 5. Incharge Medical Officer, Primary Health Centre, Madhepur, Distt. Madhubani. 6. Deputy Superintendent, Sub-Divisional Hospital, Jhanjharpur, P.S. & P.O. Jhanjaharpur, Dist. Madhubani. .... .... Respondents ====================================== For the Petitioner : Mr. Binay Kumar Singh, Advocate For the State : S.C.-5 -------------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (20.06.2011) Mihir Kr. Jha, J. Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “That the petitioners are filling this writ application for issuance of a writ in the 2 nature of writ of certiorari to quash and cancel the different termination orders (Annexure-7 series) by which the petitioners above named has been terminated from their respective services and further a writ of Mandamus be issued upon the respondents to allow the petitioners to join at their respective place of posting and further to allow them to discharge their duties regularly and to pay their salary regularly in each and every month and further the petitioners be paid their back wages /back salaries for the period they have not been allowed to work . And for issuance of any other writ/writs, Direction/Directions, order/Orders as this Hon'ble High Court deem fit and proper in the facts and circumstances of this case.” The aforementioned prayer when examined in the light of the contents of the impugned order as contained in Annexure-7 series would reveal that the services of the petitioners were terminated way back on 10.7.1995 but, the writ application has been filed by the petitioner only on 10.4.2006 i.e. after more than ten years of their termination of service. There being no explanation whatsoever for such inordinate delay in filing of the writ application by the petitioners, the same is fit to be dismissed only on the ground of delay and laches. While Mr. Binay Kumar Singh, learned counsel for the petitioners would, however, submit that this writ application should be disposed of in terms of the order passed by this Court in identical cases being CWJC No. 7437 of 2010, CWJC No. 6942 of 2010 and CWJC No. 6531 of 2010, which have been disposed of with an observation that the result of the similar case pending before the Apex 3 Court would also govern the fate of the aforesaid cases. This Court, however, would find it difficult to pass a similar order as referred above, inasmuch as, that would amount to reviving a cause of action of the year 1995 after a gap of almost sixteen years. It is not the case of the petitioners that the impugned order in CWJC No. 7437 of 2010, CWJC No. 6942 of 2010 and CWJC No. 6531 of 2010 were also passed on 10.7.1995 by the same authority. In fact, Mr. Singh, learned counsel for the petitioners, had only submitted that as all these cases relates to termination of service of Class- III/Class-IV employees of Health Department and one matter relating to such termination of the services of the employee of Health Department is pending before the Apex Court, the petitioners’ writ application may also be disposed of in same terms by making the judgment of the Apex Court in the pending case applicable to this case as well. Such submission of Mr. Singh cannot be accepted, inasmuch as, the matter, which is pending before the Apex Court, involves altogether different facts and issues. In fact, the matter pending before the Apex Court is an offshoot of a common judgment dated 8.9.2003 in CWJC No. 4702 of 2003 and its analogous cases in the case of Sitendra Kumar Singh with analogous cases Vs. State of Bihar & Ors. reported in 2003(4)PLJR 282 wherein the 4 termination orders passed in the year 2002/03 of a batch of employees of the Health Department was quashed for a period over nine years. Such view of the learned single Judge, however, was not maintained by the Division Bench in the appeals filed by the State of Bihar, inasmuch as, the direction for reinstatement upon quashing of their order of termination was not maintained by the Division Bench in its judgment in the case of State of Bihar Vs. Purendra Sulan Kit reported in 2006(3)PLJR 386, wherein, this Court had directed the State of Bihar to constitute a high power committee for considering their cases for regularization of their services in the light of the judgment of the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. reported in 2006(2)PLJR(SC) 363. The high power committee of the State Government, thereafter, had reconsidered the cases of all such 819 writ petitioners and had found only 91 of them fit for regularization in terms of the judgment of the Apex Court in the case of Uma Devi (supra). When a few amongst the rest of the petitioners did not get the relief of regularization of their services and remained terminated employee despite quashing of their order of termination by the learned single Judge in the judgment dated 8.9.2003 in the case of Sitendra Kumar Singh (supra) they had again moved this Court 5 in a series of writ petitions which was disposed of by the learned single Judge by a common order holding that the report of the higher power committee was perfunctory and that they were entitled to be reinstated in service in the light of the earlier judgment of the learned single Judge quashing their order of termination. The series of appeals filed by the State of Bihar against such judgment of the learned single Judge in CWJC No. 6575 of 2009 (Om Prakash Vs. State of Bihar & Ors.) and its connected cases was disposed of by nullifying the direction given by the learned single Judge and constituting a One Man Committee of Hon’ble Mr. Justice Uday Sinha, a retired Judge of this Court to look into the various facets of nature of their appointment as also to adjudicate the question of legality of their appointment and continuance in service. It is this direction of the Division Bench in LPA No. 1623 of 2009 and its analogous cases constituting the aforesaid One Man Committee in the order dated 11.2.2010, which has been made subject matter of pending matter before the Apex Court. It would thus become clear that there is no similarity in the case of petitioners whose services were already terminated way back some sixteen years earlier on 10.7.1995 and the other cases where in three more round of litigation have already been concluded before traveling of the 6 issue once again to the Apex Court. The only similarity that the petitioners are also the employees of the Health Department and their services were also terminated at one point of time and as such, they should be allowed to avail the benefit of the order of the Apex Court or of this Court in which a direction has been given by the Division Bench for constituting One Man Committee of Justice Uday Sinha may lead to an absurd situation, wherein, any person of the Health Department terminated at any point of time could file writ application for reviving his cause of action as against his new order of termination. Each order of termination passed in the background of individual facts at a particular point of time cannot be allowed to be reopened only on the ground of pendency of some matter said to be pending before the Apex Court. Thus the prayer of the learned counsel for the petitioners to dispose of this writ application also by making it subject to the result of the pending matter before the Supreme Court cannot be allowed. Coming to the merit of the case of the petitioners, it would be found that the petitioner nos.1 to 8 and the husband of the petitioner no.9 were appointed on the post of ,sfPNd dk;ZdRrkZ (Voluntary Worker) without undergoing any procedure of selection in between 31.12.1989 to 3.3.1990. There 7 was no advertisement for such appointment of the petitioners and while they had continued in service on the basis of such rank illegal appointment, it was held by this Court in CWJC No. 10464 of 1994 disposed of on 22.9.1994 that there was no post of voluntary worker in the department and in fact Voluntary Workers were not entitled to any scale of pay. Consequently, after the judgment of this Court dated 22.9.1994 in Ram Lakhan Thakur case, all such Voluntary Workers in the State of Bihar including the petitioners had been sought to be terminated in the light of the directions given by the Additional Director of the Health Services in his letter dated 25.4.1995 implementing the judgment of the High Court in the case of Ram Lakhan Thakur (supra). The petitioners, thus, who had barely continued for a period of four to five years on unsanctioned and non-existent posts of Voluntary Workers were removed from service on 10.7.1995 by an identical order of termination, one of which is quoted hereinbelow:- ^^dk;kZy; vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] e/kqcuh A Kkikad %& e/kqcuh] fnukad 10-7-95 izsf"kr] Jh bUnz Hkw"k.k izlkn p0o0d0 izkFkfed LokLF; dsUnz e/ksiqj A vkidh fu;qfDr@izksUufr ,sfPNd dk;ZdrkZ ls fyfid ds in ij dh xbZ Fkh A ekuuh; mPp U;k;ky; esa nk;j ;kfpdk la0 lh0 MCyw0 ts0 lh0 ua0& 10464@94 jke y[ku Bkdqj ,oa vU; cuke fcgkj ljdkj ,oa vU; esa fnukad 22-9-94 dks ikfjr vkns'k ,oa vij funs'kd Lok0 lsok ¼i0½ fcgkj] iVuk ds 8 i=kad 317 ¼i0d0½ fnukad 25-4-95 ds vkyksd esa vkidh fu;qfDr pwWafd ljdkjh lHkh fu;eksa dk mYya?ku dj ds dh xbZ gS A vr% i= izkfIr dh frfFk ls lsok lekIr dh tkrh gS A g0@& vLi"V vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] e/kqcuh** From reading of the aforementioned common termination order dated 10.7.1995 in the case of the petitioners 1 to 8 and the husband of the petitioner no.9, it would become clear that a unique modus oprendi was adopted for initially engaging them as Voluntary Worker and later on placing them on a higher post of Clerk without following the mandate of Article 14 & 16. Such rank illegal appointment in teeth of mandate of Article 14 & 16 could have given them no right to continue in service and as such, this Court would not find any flaw in the termination of their services specially when it has been asserted in the paragraph no.11 of the counter affidavit that all the petitioners were given a show-cause notice but they did not even file their reply and as such, their services were terminated in the light of the judgment of this Court in the case of Ram Lakhan Thakur (supra) as also the consequential direction issued by the Additional Director of Health Services of the Government of Bihar. Such rank illegal appointment against a non-existent and unsanctioned post without following mandate of Article 14 and 16 of Constitution of India and 9 prescribed procedure of advertisement in newspaper followed by a proper selection process was totally disapproved and deprecated by the Apex Court not only in the judgment of Uma Devi (supra) but also in the subsequent judgment in the case of State of Bihar Vs. Upendra Narain Singh & Ors. reported in 2009(5)SCC 65. That being so, there is no merit in this application and the same is hereby dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 20th June 2011 .A.F.R./Ranjan