IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6769 of 2003 Ashok Kumar Sharma, son of Sri Braj Nandan Prasad Singh, Ex- clerk, Additional Primary Health Centre, Bakhtari, District Arwal (Bihar), Resident of village Dharnai, P.O. Beraka (Ner), P.S. Makhdumpur, District Jahanabad. ------------ Petitioner Versus 1. The State of Bihar. 2. The Chief Secretary, Government of Bihar, Patna. 3. The Secretary, Department of Health, Government of Bihar, Patna. 4. Director-in-chief, Medical Services, Department of Health, Government of Bihar, Patna. 5. Civil Surgeon-cum-Chief Medical Officer, Jehanabad-cum-Arwal. 6. Civil Surgeon-cum-Chief Medical Officer, Nawadah. 7. District Magistrate, Jehanabad. 8. Dy. Development Commissioner, Jehanabad. 9. Commission, Magadh Division, Gaya. 10. Additional Collector, Gaya. 11. Medical Officer Incharge, Additional Primary Health Centre, Bakhtari (Karapi), Arwal. 12. Shri Ramesh Mishra, Civil Surgeon-cum-Chief Medical Officer, Jehanabad-cum-Arwal. ------- Respondents ----------- 4 23.08.2010 Heard learned counsel for the petitioner and counsel for the State. The petitioner is aggrieved by an order dated 21.6.2003 and in this context, the relief claimed by him in this writ application reads as follows:- “1(i) quashing and setting aside of the impugned termination order dated 21.6.2003 vide Memo No. 775, issued by Respondent Nos.5 and 12 as contained in Annexure- 17. (ii) Issuance of writ in the nature of mandamus commanding the respondents to reinstate the 2 petitioner in service w.e.f. 21.6.03 with all consequential benefits including salary.” It has to be noted that when this writ application was placed for admission on 30.7.2003, this Court had passed a detailed order while staying the operation of the impugned order in following terms:- “This writ petition is directed against the order as contained in Annexure-17 whereby and whereunder the services of the petitioner have been terminated. Learned counsel submits that the petitioner was appointed in the year, 1982 by the Civil Surgeon-cum-Chief Medical Officer, Nawadah after asking for the names of the candidates from the Employment Exchange, on the post of Clerk. The genuineness of appointment of the petitioner, however, was enquired into at the behest of the Divisional Commissioner in the year, 1997 and his appointment was found to be valid which would be evident from Annexure-6. It is further submitted that again the matter was enquired into and appointment of the petitioner was again found to be valid in the year, 2000 and now the petitioner has been terminated n the grounds that the procedure laid down by the State Government for appointment was not followed and there was no observance of roster clearance. The petitioner is being terminated after 21 years of 3 service. Put up this matter for admission in due course enabling counsel for the State, to take instructions and to file counter affidavit. In the meantime, operation of the order as contained in Annexure-17 shall remain stayed.” There is no counter affidavit in this case even after lapse of a period of more than seven years of filing of the writ application. In such a situation, keeping this writ application pending any longer would be a futile exercise when the order of termination of the petitioner has remained stayed in this period of more than seven years. This Court would also find that the impugned order terminating the service of the petitioner dated 21.6.2003 (Annexure-17) though gives certain reasons but does not take into account the explanation submitted by the petitioner as contained in Annexure-13 and 15 to this writ application, which were filed by the petitioner in reply to the show- cause notice issued to him. The purpose of issuing notice by way of compliance of 4 principle of natural justice is to examine the defence of a person before passing the order. In this case, not a word has been considered with regard to the explanation given by the petitioner as would be evident from the contents of the impugned order, which reads as follows:- ^^vkns'kA eq[; lfpo] fcgkj] iVuk ds i=kad 746 ¼4½ Lok0 fnukad 9- 7-02 ,oa vk;qDr ,oa lfpo LokLF; foHkkx] fcgkj] iVuk ds i=kad 1307¼4½ fnukad 5-11-02 ds vkyksd esa Jh v'kksd dqekj 'kekZ] fyfid] vfr0 izk0 Lok0 dsUnz c[rkjh ¼djih½ ls fu;qfDr dh tkWp ds dze i=kad 1600 fnukad 28-12-02 ls izFke dkj.k i`Nk ,oa i=kad 633 fnukad 22-5-03 ds }kjk f}rh; dkj.k i`PNk iwNk x;k mDr iwNs x;s dkj.k i`PNk ds vkyksd esa buds }kjk lefiZr fu;qfDr laca/kh dkxtkrksa dh tkWp dh xbZ gSA budh fu;qfDr flfoy ltZu uoknk ds i=kad 1085 fnukad 31-3-82 ds }kjk dh x;h gSA budh fu;qfDr esa dkfeZd ,oa iz'kklfud lq/kkj foHkkx] fcgkj] iVuk ds i=kad 16440 fnukad 3- 12-80 ,oa eq[; lfpo fcgkj iVuk 654¼4½ Lok0 fnukad 19-5-03 esa fu;qfDr laca/kh of.kZr funs'kksa ,oa ekxZn'kZu dk ikyu ugha fd;k x;k gS%& tSls 1- foKkiu dk izdk'ku ,oa inksa dh Lohd`fr dk fooj.k 2- fu;qfDr inkf/kdkjh }kjk fu;kstuky; dks izsf"kr fjfDr dh lwpuk rFkk fu;kstu inkf/kdkjh }kjk fjfDr ds fo:) fu;qfDr gsrq izsf"kr ekWxksa dh lwph esa uke laca/kh izek.k 3- vkj{k.k fu;eksa ¼jksLVj Dyh;jsal½ dk ikyu 4- fu;qfDr esa fu;ekuqlkj LFkkiuk p;u lfefr ugha cuk;h x;h gSA vr% voS/k rjhds ls cgky gksus ds dkj.k budh fu;qfDr voS/k ekurs 5 gq, eq[; lfpo] fcgkj] iVuk ds i=kad 746¼4½ Lok0 fnukad 9-7-02 ds }kjk iznRr 'kfDr dk iz;ksx djrs gq, rRdky izHkko ls bUgsa lsokeqDr fd;k tkrk gSA vlSfud 'kY; fpfdRld&lg&eq[; fpfdRlk inkf/kdkjh tgkukckn Kkikad 775 @tgkukckn%fnukad 21-6-2003** It has to be taken into account that when the two show-cause notice were issued to the petitioner one dated 28.12.2002 and the other on 22.5.2003 in printed proforma, the petitioner had submitted his specific reply soon thereafter by filing a copy of the Annexure-13 and Annexure-15 respectively. In such defence of the petitioner, there was a clear suggestion that the then Civil Surgeon, Nawadah vide memo no. 2739 dated 14.8.1981 had sent his requisition to Employment Exchange and, thereafter, when the Employment Exchange had also forwarded the name of the petitioner to the Civil Surgeon, Nawadah, an interview call letter was issued on 28.8.1981 by the Civil Surgeon, whereafter, the petitioner had appeared before the Selection Committee in the interview held on 28.8.1981 and only thereafter, his appointment letter was issued by the Civil Surgeon, Nawadah on 6 31.3.1982. Thus, if the petitioner can still prove this aspect that there are document to show with regard to the requisition of name from the Employment Exchange by the office of the Civil Surgeon, Nawadah on 14.8.1982 and the Employment Exchange, Nawadah responding within three days with the list of the candidates containing the name of the petitioner and after his being interviewed by the Selection Committee on 28.8.1982 probably he may have a claim to save his appointment made some 29 years back but, if the petitioner cannot justify his own defence as taken in Annexure-13 & 15 and would fail to produce either the requisition sent by the office of the Civil Surgeon, Nawadah to Employment Exchange, Nawadah or the reply sent by the Employment Exchange, Nawadah recommending the name of the petitioner for being considered or the proceeding of the Selection Committee of 28.8.1981, the presumption would be that the petitioner had taken a false ground in his show-cause reply filed by him in the year 2003 i.e. after 22 7 years of his appointment. The fact that the petitioner could remember about all these in show-cause reply filed after 22 years that would go to show that the petitioner was in fact having a copy of all these documents which was also sought to be supported by him by annexing them in the show-cause reply. In such a situation, if the authorities have failed to take into account the specific defence of the petitioner, the order passed by the authority cannot be justified and the same must be held to be bad. It is well settled that any quasi judicial order has to be backed by reasons after considering the show-cause reply and reference in this connection may be made to the order of the Supreme Court in the case of Siemens Engineer and Manufacturing co. of India Ltd. Vs. Union of India & Anr. reported in AIR 1976 SC 1785. Since this Court is satisfied that the impugned order does not contain any reason showing application of mind to facts stated in his reply filed by the petitioner and the reasons which had weighed for cancelling the appointment of the petitioner were never 8 confronted to him, this Court would give liberty to the Director-in-chief of the Health Services to now reconsider the whole issue regarding the correctness of the appointment of the petitioner. The petitioner, therefore, may appear before the Director-in-chief of the Health Services within a period of one month from the date of receipt/production of a copy of this order and produce before him all the document that he claims to have filed with Annexure-13 and 15, specially the requisition sent by the office of the Civil Surgeon, Nawadah to the Employment Exchange, Nawadah and its reply by the Employment Exchange, Nawadah to the Civil Surgeon as also the proceeding of the Selection Committee showing the members who have been made and considered the case of the petitioner and other candidates for such selection on the post of Clerk. Once the petitioner submits all these documents or any other document that he would like to rely in support of his claim of appointment, the Director-in-chief, after getting the relevant information from the concerned authorities 9 including Employment Exchange, Nawadah, would take his final decision. Such an exercise, however, may be completed at early date by the Director-in- chief of the Health Services in order to give finality to the alleged illegality in the appointment of the petitioner who by now has already attained the age of around 58 years and has now been left with two years of service approximately. In view of the fact that the order of this Court had stayed the termination of the petitioner and the same has never been vacated, such stay shall continue for a further period of six months in which period the Director-in-chief must take his final decision. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)