IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.655 of 2010 ====================================================== 1. Meera Sinha W/O Sri Rajendra Prasad R/O Vill.- Bhareti, P.S. Hilsa, Distt.- Nalanda .... .... Petitioner/s Versus 1. The State Of Bihar, Through The Principal Secretary, Deptt. Of Health, Govt. Of Bihar, Patna 2. Director In Chief, Health Services, Govt. Of Bihar, Patna 3. Civil Surgeon Cum Chief Medical Officer, Madhubani 4. Incharge Medical Officer, Primary Health Centre, Basopatti, Madhubani .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.17370 of 2009 ====================================================== 1. Vidyawati Sinha @ Kumari Vidyawati Sinha W/O Sri Nawal Kishore Prasad Singh R/O Vill.- Teka Bigha, P.S. Chandi, Distt.- Nalanda .... .... Petitioner/s Versus 1. The State Of Bihar, Through The Principal Secretary, Deptt. Of Health, Govt. Of Bihar, Patna 2. Director In Chief, Health Services, Govt. Of Bihar, Patna 3. Civil Surgeon Cum Chief Medical Officer, Darbhanga 4. Incharge Medical Officer, Primary Health Centre, Baheri, Darbhanga .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.16907 of 2009 ====================================================== 1. Arvind Kumar S/O Late Bechan Ram R/O Vill.- Chandidih, P.S.- Chandi, Distt.- Nalanda .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary Department Of Health, Government Of Bihar, Patna 2. Director In Chief Health Services, Government Of Bihar, Patna 3. Civil Surgeon Cum Chief Medical Officer Jamui 4. Incharge Medical Officer Primary Health Centre, Sikandara, Jamui .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.17145 of 2009 ====================================================== 1. Surendra Prasad S/O Late Rameshwar Prasad, R/O Vill- Saraiya, P.S- Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P2 o/15/15 2 Mahdumpur, Distt- Jehanabad .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Health, Government Of Bihar, Patna 2. Director In Chief, Health Services, Government Of Bihar, Patna 3. Civil Surgeon Cum Chief Medical Officer, Patna 4. Incharge Medical Officer, Primary Health Centre, Dhanarua, Patna .... .... Respondent/s ====================================================== Appearance : (In CWJC No.655 of 2010) For the Petitioner/s : Mr. Shiv Kumar Mr. Dilip Kumar For the Respondent/s : Mr. (Aag2) (In CWJC No.17370 of 2009) For the Petitioner/s : Mr. Shiv Kumar For the Respondent/s : Mr. (Aag5) (In CWJC No.16907 of 2009) For the Petitioner/s : Mr. Shiv Kumar For the Respondent/s : Mr. (Aag8) (In CWJC No.17145 of 2009) For the Petitioner/s : Mr. Shiv Kumar For the Respondent/s : Mr. (Sc21) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 5 19-10-2011 Prayer of the petitioners in all these writ applications is for quashing of the part of the Inquiry Report submitted by the Five Men Committee, constituted in pursuant to the order dated 26.6.2006 passed in LPA No. 946 of 2003 and analogous cases, whereby their appointment has been held to be forged. Further prayer of the petitioners is with regard to quashing of respective impugned orders, whereby they have been terminated Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P3 o/15/15 3 from their service with immediate effect. Since petitioners have challenged the common inquiry report as well as their order of termination and the allegations are similar with regard to their appointment, as such all these matters have been taken up for analogous hearing and are being decided by a common order. Meera Sinha ( CWJC No. 655 of 2010) and Vidyawati Sinha @ Kumari Vidyawati Sinha ( CWJC No. 17370 of 2009) were working on the post of Auxiliary Nurse Midwifery (ANM) and have been terminated on the ground that their certificate of training of Female Health Worker ( A.N.M.) is forged. The case of these two petitioners is that in response to the advertisement issued, inviting applications for appointment in different A.N.M. Schools of the State of Bihar for training of Female health Worker, they applied for appointment in the year 1987. They got their admission in L.H.V./ A.N.M. School, Patnacity and after completion of training, they appeared in the examination held in the month of April, 1989. After passing the A.N.M. Course, they got registered as Auxiliary Nurse Midwifery by the Bihar Nurses Registration Council and the certificate has been issued in their favour under the signature of Registrar, Bihar Nurses Registration Council. The Deputy Director ( Family Welfare), Health Services, Bihar, Patna issued Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P4 o/15/15 4 a list vide memo no. 451 (6) dated 29.5.1991, whereby 41 candidates who have passed female Health Worker examination held in the month of April, 1989 was sent to Civil Surgeon- cum-Chief Medical Officers of different districts to appoint them, after verification of their original educational and training certificates. Both the petitioners were appointed by the Civil Surgeon-cum-Chief Medical Officer, Madhubani and Darbhanga after verification of their educational and training certificate in the year 1991. For ten years they continued peacefully. In the case of Meera Sinha in the year 2001 the In- charge Medical Officer, Primary Health Centre, Basopatti vide letter No. 316 dated 8.10.2001 directed her to submit her appointment letter and other documents for enquiry with regard to the validity of her appointment. She submitted all documents for verification. Payment of salary, which had been stopped, due to an enquiry relating to verification of documents, was resumed finding her appointment valid. The Civil Surgeon-cum- Chief Medical Officer, Madhubani vide memo no. 1088 dated 8.6.2004 for no apparent reason, subsequently informed the petitioner Meera Sinha that her registration certificate and mark- sheet have been found to be false. A letter was issued giving reference of a letter No. 613(6) dated 25.5.2004 issued by the Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P5 o/15/15 5 Deputy Director, Health Services, Bihar Patna and She was asked to file her show cause. In compliance, she submitted her show cause. Thereafter without any inquiry or notice, vide memo no. 1307 dated 28.6.2004 the Civil Surgeon-cum-Chief Medical Officer, Madhubani terminated her from service with immediate effect. So far Vidyawati Sinha alias Kumari Vidyawati Sinha ( CWJC No. 17370 of 2009) is concerned, she joined in the Primary Health Centre Baheri on 14.8.1991. For 11 years, she continued to work peacefully. On 18.10.2002 the Civil Surgeon-cum-Chief Medical Officer, Darbhanga issued a show cause, as to why her service be not terminated. Before any enquiry could have been made, an F.I.R. was also lodged against her alleging that on the basis of forged registration certificate, she got appointed on the post of A.N.M. Vidyawati Sinha submitted her show cause, stating that she was appointed after due verification of her certificates, which were found proper and genuine. There was no reason for such allegation against her that her appointment is on the basis of forged certificate. However, the Civil Surgeon-cum-Chief Medical Officer, Darbhanga issued memo No. 3729 dated 20.11.2002, whereby she was terminated from service. Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P6 o/15/15 6 Meera Sinha, challenged her termination order, by filing CWJC No. 11191 of 2005 and Vidyawati Sinha filed CWJC No. 6617 of 2003. Writ applications filed by Vidyawati Sinha was allowed, termination order was quashed with a direction to reinstate her. She went to give her joining but the Civil Surgeon-cum-Chief Medical Officer, Darbhanga did not accept her joining on the ground that the State Government has preferred LPA against the order passed in the writ application. LPA filed In Vidyawati Sinha’s case and writ application filed by Meera Sinha were heard analogous with LPA No. 946 of 2003. Several writ applications and LPAs were disposed off without considering the merit of these cases, giving direction to the State authority for constituting five men Committee to examine individual cases of the petitioners and to submit report. Finally, a report was submitted by Five Men Committee, which is under challenge in these two applications. In the report submitted by Five Men Committee, petitioners’ appointment is said to be forged. The case of Arvind Kumar ( CWJC No. 16907 of 2009) and Surendra Prasad ( CWJC No. 17145 of 2009) is that after passing matriculation examination, they were admitted for training of Basic Health Worker in the year 1973-74. The Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P7 o/15/15 7 training completion certificate was issued in favour of Arvind Kumar under the signature of Civil Surgeon-cum-Chief Medical Officer, Saharsa and in favour of Surendra Prasad by the Civil Surgeon-cum-Chief Medical Officer, Ranchi. Arvind Kumar applied for the post of Basic Health Worker in response to the advertisement published in daily newspaper “Arybart”. He was selected and posted in Primary Health Centre, Nala, Dumka, subsequently transferred to Munger at Sikandara Block. On 5.10.1993 the Civil Surgeon-cum-Chief Medical Officer, Munger made a query regarding his appointment and payment of salary was also stopped. However, on perusal of his appointment letter and other documents payment of salary was started but on 1.2.2003 a termination letter was issued against him on the ground that his training certificate is forged. This termination order was challenged by him by filing CWJC No. 4702 of 2003, which was heard analogous with LPA No. 946 of 2003. So far Surendra Prasad is concerned, he also had applied for the post of Basic Health worker in response to an advertisement. The Special Officer, Health Services, Bihar, Patna vide memo no. 2(10) dated 10.1.1980 directed the Civil Surgeon cum-Chief Medical Officer, Chapra to issue Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P8 o/15/15 8 appointment letter in favour of the petitioner after verifying his certificate. The Civil Surgeon-cum-Chief Medical Officer, Chapra issued appointment letter vide memo no. 252 dated 28.1.1980 and the petitioner gave his joining in Primary Health Centre, Abilpur. Petitioner thereafter was transferred to Primary Health Centre, Dhanarua, Patna and gave his joining on 17.11.1983. The Civil Surgeon-cum-Chief Medical Officer, Patna vide memo no. 9857 dated 16.11.1989 asked him to submit documents with respect to his appointment for enquiry. Till completion of inquiry his salary had been stopped. However, payment of salary was resumed vide memo no. 10991 dated 21.12.1989 issued by the Civil Surgeon-cum-Chief Medical Officer, Patna. He was also given first time bound promotion. In the year 1997 again an explanation was called from him. He submitted his show cause which was accepted. In the year 2000 again vide memo no. 3873 dated 7.6.2000 a show cause notice was issued, which was replied by the petitioner and he was allowed to continue. Suddenly vide memo no. 1125 dated 5.2.2003 issued by the Chief Medical Officer, Patna petitioner was terminated from his service on the ground that since his matriculation certificate was not produced by him, as such his appointment is forged. Petitioner filed Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P9 o/15/15 9 CWJC No. 14082 of 2003, challenging the termination order, which was heard analogous with LPA No. 946 of 2003 and inquiry report has also been submitted in the case by the Five Men Committee that his appointment is forged. Counsel appearing for the petitioners in all these cases have challenged their termination order and the report submitted by Five Men Committee in their respective cases, on the ground that at the time of their initial appointment all documents relating to their educational qualification and training certificates were duly verified by the concerned Civil Surgeons. Only on being satisfied, they got their appointment. For more than ten years, they continued on their posts. Suddenly for no reason, giving reference of a letter issued from the Deputy Director, Health Services, they were asked to submit their documents relating to appointment and educational qualification. That was duly submitted by them. On verification again they were allowed to continue. Thereafter, there was no reason, for again coming to this conclusion that their appointments are forged. Since all these petitioners have duly been confirmed on their post, it was incumbent upon the respondent to follow the procedure as provided under Rule 55 of the Civil Services ( Classification, Control & Appeal) Rules Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P10 o/15/15 10 before issuing any termination order against them. The Respondent completely ignoring legal procedure, issued termination order against the petitioners without any proper inquiry as well as without providing any opportunity to the petitioners to defend their appointment. For this reason, only the termination orders are fit to be quashed. So far the inquiry report submitted by Five Men Committee is concerned; it is completely in violation of the rules of natural justice. Writ application preferred by the petitioners and the LPA preferred in case of Vidyawati Sinha by the State were not decided by the Division Bench on merit. All the writ applications and LPAs were disposed off with a direction that five men committee will examine individual cases of writ petitioners. The so-called Five Men Committee did never issue any notice to the petitioners to appear before the Committee. They were not given any opportunity to defend themselves. In absence of the petitioners if any inquiry was conducted, that is completely illegal. The report submitted by the Five Men Committee also is an example of total non- application of mind. The writ petitioner, Surendra Prasad in para 22 of his writ application has stated that the report was prepared very casually by the so-called inquiry committee. It is Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P11 o/15/15 11 apparent from this fact that the Members of Committee had no knowledge that he was working in the district of Patna. In the inquiry report his place of posting is shown at Aurangabad. He was working on Class III post but in the inquiry he is shown as Class IV employee. This in itself is sufficient to indicate the manner in which inquiry was conducted and report was submitted. No counter affidavit has been filed in the case of Surendra Prasad denying the statement. Counter affidavit has been filed in CWJC No.17370 of 2009 and CWJC No. 16907. In the counter affidavit filed in Vidyawati Sinha’s case, it has been stated that she has been terminated because her certificate of training was found forged after verification. How this enquiry was conducted and whether writ petitioner was given any opportunity to defend her appointment, there is no statement in the counter affidavit of the State. Counsel appearing for the State has also placed reliance on judgments reported in 2002(4) PLJR 645, 2003(2) PLJR 28 and the judgment of the Supreme Court in the case reported in AIR 2007(4) SC 54. These judgment also do not justify termination of employees working for more than ten years, without any valid and proper enquiry. These judgments do not Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P12 o/15/15 12 justify termination of an employee, who is confirmed on his post, ignoring the procedure provided under Article 311 of the Constitution of India. What I find that petitioners were appointed long time back in the year 1991, 1983, 1984, they continued on their posts for more than ten years, without any interference or objection. At the time of their initial appointment, their educational certificates were duly verified and found to be genuine. There was no reason for coming to this conclusion, later on, that they were appointed on the basis of the forged certificate. LPA No. 946 of 2003 and analogous cases had been disposed off for conducting individual inquiry in each case. It was mandatory for the Members of the Five Men Committee to issue individual notice to each one . Nothing has been brought on record by the respondents in their counter affidavit that any opportunity was provided to the petitioners for appearing before the inquiry Committee and defending their case. It seems that the inquiry committee placing reliance on the earlier termination order has recorded a finding that their appointments were forged. It shows complete non compliance of the principles of natural justice. For recording a finding that the appointment/training certificates were forged, it was necessary Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P13 o/15/15 13 that an inquiry in accordance with law should have been conducted and by a speaking order, finding with regard to certificates being forged should have been recorded. But there is nothing on record to show that such enquiry was conducted before holding petitioners’ appointments forged. Admittedly petitioners continued on their post for more than ten years. They were confirmed on their posts. In this circumstance, it was essential that only after following the procedure as provided under law any termination order could have been issued, but that was also not done. For these reason, I find that the finding recorded by the Five Men Committee against the petitioners that their training certificates were forged, is not sustainable. Respective impugned orders issued against these petitioners by concerned Civil Surgeon-cum-Chief Medical Officers, are such fit to be quashed. Similar view has been taken by the Division Bench in LPA No. 230 of 2011 and analogous cases disposed off on 29..3.2011. Placing reliance on the decision in the case of State of Karnataka and ors. Vs. M.L. Kesari & ors, reported in ( 2010) 9 SCC 247, the Division Bench has placed reliance in paragraph 11 of the Apex Court decision, where it has been observed as follows:- Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P14 o/15/15 14 “The object behind the said direction in para 53 of Umadevi is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of Court or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/ ad hoc/ casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10..4.2006 ( the date of decision in Umadevi) without the protection of any interim order of any Court or tribunal, in vacant posts, possessing the requisite qualification are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Uma Devi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a Patna High Court CWJC No.655 of 2010 (5) dt.19-10-2011 P15 o/15/15 15 one time measure.” All these petitioners have continued for more than ten years on their post without protection of any interim order by the Court or Tribunal. They all are appointed on vacant posts, possessed requisite qualification. In these circumstances, they are entitled to be reinstated on the post and continued on the post. They are also entitled for reinstatement with all consequential benefits. These writ applications stands allowed. Arun Kumar/- (Mridula Mishra, J)