IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.573 OF 2004 HARE KRISHNA NAYAK, SON OF LATE MAHAVIR NAYAK, RESIDENCE OF VILLAGE PAKOHAWA, P.S. KUSHESHWARSTHAN, DISTRICT DARBHANGA……………………………………..…………PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE CHIEF MALARIA OFFICER, BIHAR, PATNA 3. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, DARBHANGA 4. THE DISTRICT MALARIA OFFICER, DARBHANGA……………………………………..RESPONDENTS *** For the Petitioner: M/s Ravindra Nath Dubey & Sanjay Kr. Singh, Advocates For the State : Mr. V.M.K.Sinha, S.C. III *** P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J: Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner in this writ application has challenged the order dated 7.11.2003 passed by the Chief Malaria Officer, Bihar, Patna, as contained in Annexure-1, by which his services have been terminated from the date of issue of the order on the ground of non-compliance on six counts, as mentioned in the order, in his appointment, as in - 2 - spite of providing repeated opportunities, he had not furnished facts in respect of the said points, which proved that he had nothing to say in respect of the same. 3. Case of the petitioner is that he was appointed by the Committee due to the need of the work in the office of District Malaria Officer, vide order dated 20.02.1988 (Annexure-2), issued under the signature of the respondent Civil Surgeon, Darbhanga. The order itself showed that, due to dearth of hands in the office of the District Malaria Officer, work was getting hampered and, therefore, petitioner was appointed and posted as peon in the pay-scale of Rs.350-400. Petitioner, accordingly, joined on 14.03.1988 which was informed by the District Malaria Officer to the Civil Surgeon-cum-Chief Medical Officer, Darbhanga, vide Annexure-3. It appears that appointment of the petitioner was approved by the Civil Surgeon, Darbhanga and thereafter the matter was referred to the Chief Malaria Officer, Bihar, Patna, by the District Malaria Officer, Darbhanga through letter no.734 dated 28.07.1988. While the matter of approval of service of the petitioner was pending with the Chief Malaria Officer, Bihar, - 3 - Patna, a communication was sent to the Civil Surgeon, Darbhanga, vide Annexure-5 dated 18.04.1988, intimating him that ad hoc approval has been granted to the proposal of respondent Civil Surgeon, Darbhanga sent through his letter no.14 dated 14.02.1988. Petitioner thereafter continued as peon in the office of the District Malaria Officer. 4. Learned counsel for the petitioner submits that later on, service of the petitioner was confirmed by the Chief Malaria Officer, Bihar, Patna and the same was communicated to the district authorities. However by letter dated 08.07.2003 of the District Malaria Officer (Annexure-6), petitioner was asked to submit his show cause in respect of his appointment on six counts. The said letter was issued pursuant to a communication from the office of the Chief Malaria Officer dated 04.07.2003 to the District Malaria Officer, Darbhanga. Petitioner submitted his reply, vide Anenxure-7. It appears that the District Malaria Officer, Darbhanga had also submitted report to the Chief Malaria Officer, Bihar, Patna vide letter dated 11.6.2003 (Anexure- 8) in respect of the appointment of the - 4 - petitioner. 5. Thereafter petitioner did not hear anything from any authority till he received the impugned order issued under the signature of the Chief Malaria Officer, Bihar, Patna. The order mentions six points on which show cause was asked from him, and thereafter it is mentioned that, in spite of the repeated opportunities, he has not submitted facts in his defence on the said points from which it appears that he had nothing to say in the matter. Therefore, due to non-compliance on the said counts, his appointment was cancelled from the date of issue of the order. 6. From the impugned order it is apparent that show cause reply of the petitioner dated 10.07.2003(Annexure-7), for whatever worth it was, was not even noticed. It is also apparent that burden in respect of producing the materials, to disprove the alleged lapse in his appointment, was put on him which he failed to do and, therefore, his appointment was cancelled due to non- compliance of requirements as mentioned in the order. The points mentioned in the impugned order are as follows: - (i) His appointment was not - 5 - made by the competent authority; (ii) Advertisement was not published prior to his appointment; (iii) No interview letter was issued; (iv) No merit list was prepared; (v) Appointment was not made by the competent selection committee and (vi) Roster point was not followed. 7. First of all, it can be seen that, in his reply dated 10.07.2003, petitioner had given some explanation in respect of each and every point. Therefore, the ground that he had not replied to the same is an error of record. Secondly, the burden was put on the petitioner to produce materials in support of compliance of requirements, as mentioned in six points, for failure of which petitioner in no way could be held responsible. In respect of the first point, it is clear that petitioner, a class IV employee, - 6 - could not be held responsible for issue of appointment letter under the signature of the respondent Civil Surgeon. It was sufficient for him that he received the appointment letter from the senior most officer of the department in the District. Petitioner, being appointed on class IV post, was not supposed to know as to who was the competent authority under law to make appointment on class IV post and obviously he was not in a position to insist that the letter should be issued by the competent authority and none else. So far as second point is concerned, if advertisement was not published before his appointment, the blame squarely lies on the officers of the State and not with the petitioner. So far as third point is concerned, in his reply, petitioner has stated that he appeared before the Selection Committee and produced his certificates. If the selection committee did not issue any interview letter to him, that was not a matter of concern for the petitioner. It may be that petitioner, or other candidates, may have been informed orally to appear before the selection committee. So far as fourth point is concerned, if the merit list was not prepared by the selection - 7 - committee, that fault also lies with the selection committee and not with the petitioner. So far as fifth point is concerned, if the selection committee was not constituted properly, that fault also lies with the authorities. Similarly, so far as sixth point is concerned, if the appointment was made in violation of roster point, that fault also lies with the authorities. 8. It is apparent that appointment was made in gross violation of procedure laid down for public employment. But the said violation lies with the authorities of the department and not with the petitioner. The order does not show that any action was initiated against the officers, who were responsible for violation of the procedure of appointment and for appointing petitioner in illegal manner. 9. The counter affidavit also does not show that any action has been contemplated or any proceeding has been initiated against the officers who were responsible for the same. Obviously, petitioner was at receiving end. The only fault with the petitioner was that he submitted an application, may be, in response to the advertisement pasted on the Notice Board or may - 8 - be, on verbal communication from someone from the office of the Civil Surgeon or the District Malaria Officer. But thereafter the respondents had to follow procedure established by law for making appointment by considering the case of the petitioner and any other applicants in consonance with Articles 14 and 16 of the Constitution of India and in accordance with the circulars/orders etc. operative at that time. 10. Petitioner was appointed in 1988. After more than 15 years of service he is now being made scapegoat for the fault of the authorities of the State, jeopardizing his entire service career and pushing him back on road at this age. Now admittedly he is over-age for any public appointment. 11. However, since the appointment itself is in violation of the Constitutional mandate and Rules of the Government, it is not possible for this Court to quash the impugned order of cancellation of appointment of the petitioner and direct the respondents to restore him in service with all consequential benefits. Therefore, this writ application is dismissed. 12. However, after serving for more than 15 - 9 - years, petitioner is being thrown out of his service for the fault of the authorities and illegality committed by them at the time of appointment without any act or omission on his part contributing to it. Therefore, petitioner is held entitled for a compensation which is quantified at Rs.25000/-. Respondents are directed to pay the same to the petitioner within three months from the date of receipt/production of a copy of this order. Respondents are also directed to initiate a proceeding to identify concerned authorities, who were involved in appointment of the petitioner without following the procedure laid down by law, identify such persons and, after complying with Principles of Natural Justice, deduct the said amount of compensation from their salary, and if they have superannuated from services, realize from them the amount as public demand or in any other manner permissible under law. It is also held that, in case the said amount of compensation is not paid to the petitioner within the said three months, he will be entitled for an interest on the amount at the rate of 10% yearly compoundable from the next day of expiry of the said three months till the date of its actual - 10 - payment. 13. Petitioner submits that he will file a representation before the respondents to consider his case on compassionate ground and sympathetically for his re-engagement/ reinstatement in view of the orders passed in different cases by this Court. Petitioner will be at liberty to do so and if he files such a representation, the respondents will be at liberty to consider the same. (Jayanandan Singh, J.) Patna High Court, Patna The Ist December, 2009 N.A.F.R. (B.T.)