IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8723 of 1997 1.BALBIR SINGH Son of Ram Charittar Singh of Village Panhas, P.S. Begusrai, District Begusrai. 2.Arbind Kumar Singh Son of Ram Narain Singh of village Ranhas, P.S. Begusrai, District Begusrai. 3.Surendra Kunar son of Late Harakh Mahto village Rachiahi, P.S. Begusrai, District Begusrai. 4.Sanjit Kumar son of Ram Naresh Rai, Village Rajanea, P.S. Begusrai, District Begusrai. 5.Ram Prakash Paswan, Son of Bishnudeo Paswan, village Arwa, P.S. Bachhwara, District Begusrai. 6.Manoj Kumar Son of Bhikhari Sah village Rajendra Nagar Gachhi, Tolam P.S. Begusrai, District Begusrai. 7.Rina Kumari wife of Anil Kumar Gautum, village New Nand Kotai, P.S. Nawkothi, district Begusrai. 8.Prem Shankar Singh Son of Bendeshwari Singh village Parora, P.S. Sahebpur Kamal, District Begusrai. Versus 1.THE STATE OF BIHAR 2.Commissioner Cum Secretary, Health Department, Govt. of Bihar, Patna. 3.Director Deshi Chikitsa, Health Department, Govt. of Bihar, Patna. 4.District Magistrate, Begusrai. 5.Principal, Govt. Ayurvedic College, Begusrai. ----------- 5 22.7.2010 Heard Mr. Pushkar Narain Shahi, learned counsel for the petitioners and counsel for the State. Prayer of the petitioners in this writ application reads as follows:- “(i)For issuance of a writ in the nature of certiorari for quashing the impugned order dated 2.2.96 given by the District Magistrate, Begusrai, Respondent no.4 stopping the salary of the petitioners an order without jurisdiction Annexure-5. (ii)For issuance of a writ in the nature of mandamus commanding the Respondents to release the with held salaries of the petitioners for work and duties being discharged by them with immediate effect. (iii)For issuance of order/ orders and direction for bidding the respondents to interfere with the peaceful services of the petitioners and uphold the absorption order of Respondent no.5 as just and valid. (iv)It is further prayed that the Hon‟ble 2 Court may be pleased to adjudicate and hold that the impugned order of Respondent no.4 passed without jurisdiction is unjust, arbitrary, unilateral, vexations and violative of the provisons of Articles 14, 16 and 21 of the Constitution of India.” Mr. Shahi has also invited attention of this Court to the additional prayer made in I.A. NO.13170 of 1998, wherein the petitioners in addition to the aforementioned relief have also sought for quashing the reasoned order passed by the Director, Indigenous Medicine, Bihar Patna terminating the services of the petitioners and also cancelling promotion of Deo Narain Singh and Mani Bhushan Prasad by reverting them to Class-IV post. In the opinion of this Court, appointment of the petitioners was made in the Government Ayurvedic College by the Principal who has no power to make such appointment and therefore the order of termination cannot be faulted especially when the plea of the respondents is that the prescribed procedure of regular appointment from open market including advertisement and selection process was never undergone. Such appointment of the petitioners in teeth of the mandate under Article 14 and 16 of the Constitution of India was not only illegal but in fact void as has been laid down by the Apex Court in the case of „State of Bihar & Ors. Vs. Upendra Narayan Singh & Ors.’ Reported in (2009) 5 SCC 65. Consequently, the prayer for quashing the impugned order of termination of services of the petitioners must be and is hereby rejected. Mr. Shahi, however, would then submit that it is 3 admitted by the respondents that the petitioners were initially engaged on daily wages in the year 1992 and the Principal of the College had also regularized them in service against sanctioned post by placing them in the pay scale. He would, therefore, submit that when such order of their appointment was sought to be cancelled the petitioners would be entitled at least for payment of salary which they have in fact been not paid for the integerrum period as daily wager. Counsel for the State in this context has invited attention of this Court towards paragraph 7 of the counter affidavit which reads as follows:- “That with regard to the statements made in paragraph no.2 of the writ petition under reply it is stated that the same is not correct to the extent that they are IVth grade regular employees in the Govt. Ayurvedic College, Begusrai working on different IVth grade posts. The real fact is that the petitioners along with five others were first engaged in the year 1989 as daily wages IVth Grade employees to work on several posts such as Mali, Peons, and Laboratory Peons etc. in the Govt. Ayurvedic College, Begusrai by the them Principal Smt. Malti Lata Sinha on the recommendation of the concerned head of the department according to the exigencies of need in the college., It is also mentioned here that they were not appointed pursuant to a regular selection process and interview. The process of engaging the petitioners and other five started in the year 1989 and continued till 1992 and they were finally absorbed against regular vacant posts by the them Principal Smt. Malti Lata Sinha although that such alleged absorption of the services of the petitioners and others was not sanctioned by the State Government and when the said fact came to the light of the respondent no.4, District Matgistrate, Begusrai then the District Magistrate stopping the salary of the petitioners and five others by the order dated 2.2.1996 vide letter no.153. It is also relevant to note here that due to such illegal appointment and 4 absorption to the petitioners the Principal Smt. Malti Lata Sinha is under suspension by the order of the head of the department but no termination letter against the petitioner has been issued uptil now by the department.” On the basis of the aforementioned stand taken in the counter affidavit counsel for the State would submit that when the posts were not sanctioned by the State Government there would be no question of bearing liability for payment of salary to the petitioners. Such statement of counsel for the State could have been accepted had the following statement of the petitioners made in paragraph 9 of the writ application been also converted. In paragraph 9 of the writ application the petitioners have made a clear averment that their services were regularized against the regular vacant post as would be evident from the extract thereof in paragraph 9 which reads as follows:- “That like wise other petitioners were also engaged on monthly basis till 1995-96 i.e. till the date of their final absorption against the regular vacant posts. In 1995 Nov.- 96 Jan. all the petitioners along with five others were absorbed against the regular vacant posts by the Principal of the College, Respondent no.5 on the direction of the higher authorities the departmental Minister.” Mr. Shahi in this regard has also invited attention to paragraph 12 of the counter affidavit, wherein the availability of the vacant regular post has not been denied, inasmuch as, all that has been said thereunder with reference to paragraph 9 of the writ petition reads as follows:- “That with regard to the statements made in paragraph nos. 8 and 9 of the writ petition 5 under reply it is stated that it is correct but the petitioner were engaged on daily wages basis after 1st August, 1985 and the Govt. has taken a decision to terminate the services of all such daily wages earners who have been engaged after 1st August, 1985.” Thus, it would appear that there is some sort of dispute as with regard to existence of the sanctioned posts. While it is true that the liability of payment of salary to the petitioners could be borne by the State Government only when the budgetary provision was made against such sanctioned posts, but then the fact that the petitioners were paid salary from 1989 to 1992 on daily wages and from January, 1992 to December, 1995 in the prescribed pay scale shows that there was some sort of budgetary allocation against which payment of salary was made to the petitioners. In that view of the matter, this Court would remit the matter back to the Director, Indigenous Medicines only on the issue of payment of salary to the petitioners for the period January, 1996 to January, 1998. If the Director, Indigenous Medicines would find that the petitioners have worked, a fact which has also not been denied in the counter affidavit, and there was some sort of budgetary allocation against which salary to the petitioners could be paid, he would direct for payment of salary to the petitioners for the period January, 1996 to January, 1998 on daily wages i.e, till issuance of the impugned order of their termination. In order to expedite the matter this Court would give liberty to the petitioners to file their individual separate representation stating therein the claim for payment of salary with 6 necessary documents and on receipt of such representation the Director, Indigenous Medicines shall also pass his separate reasoned order in case of each of the petitioners within a period of filing of a representation along with a copy of this order. It is made clear that even if there would be no budgetary allocation for payment of salary to the petitioners in the prescribed pay scale, they would be entitled for payment of their salary on daily wages as per their initial engagement made on daily wages so that they are not reduced to Beggar i.e. working without any salary. Such exercise must be completed by the Director, Indigenous Medicines within a period of six months from the date of receipt/production of a copy of this order. It is also made clear that if at any point of time the respondent would advertise the post earlier held by the petitioners, prior to their termination, for its being filled up by way of regular appointment, cases of the petitioners in the event of filing of their application, would also be considered and if necessary even by giving them relaxation in age for the period they had remained in service. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)