IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2287 of 2006 MD.SALAUDDIN S/o Late Saheb Jaan R/o Anup Lane Machhuatoli, P.S. Kadamkuan Dist. Patna. Versus 1. THE STATE OF BIHAR through Chief Secretary Old Secretariat, Patna. 2. The Superintendent, Patna Medical College Hospital, Patna. 3. District Magistrate Cum Chairman, District Level Compassionate Committee, Patna. 4. District Education Superintendent, Patna. 5. Director-in-Chief, Health Service, Bihar, Patna. 6. District Education Officer, Patna. 7. Area Education Officer, Patnacity. ----------- 5 20.08.2010 Heard Mr. Siddarth Prasad, learned counsel for the petitioner and Mrs. Nivedita Nirvikar, learned counsel appearing on behalf of G.P. 16. 2. Prayer of the petitioner in this writ application reads as follows:- “(i)For the quashing of the letter of termination of the appointment of the petitioner vide letter under memo no.206/ Patna dated 10.1.06 issued from the office of respondent no.2 as contained under annexure no- III and for the reinstation of the petitioner to the same post with consequential relief. (ii)For the release of the salary of the petitioner from the date of his appointment till day.” With regard to the aforementioned prayer Mr. Prasad would submit that the petitioner’s services by the impugned order has been terminated on non-est and non existant ground, inasmuch as, it is not the requirement of any rule and/or circular that a person seeking employment on Class-IV post must have passed of Class-VIII examination from any Government School. 3. Mr. Prasad, learned counsel for the 2 petitioner has submitted that the impugned order terminating the services of the petitioner cannot be sustained either in fact or in law, inasmuch as, the same has been passed on a wholly non-est and/or non- existant ground. In this regard, he has pointed out that the appointment of the petitioner on compassionate ground on a class-IV post in Patna Medical College Hospital (P.M.C.H) was made by the competent authority, on the basis of the recommendation of the District Compassionate Appointment Committee but even then the impugned of termination of service of the petitioner was passed without any show cause notice and/or affording opportunity of hearing to him. He has also highlighted the aspect that the solitary reason disclosed in the impugned order for termination of service of the petitioner that he did not possess the requisite educational qualification for appointment on a class-IV post in the Government service, of having not passed his class-VIII examination from a school recognized by the State Government is in teeth of the Government circular 3 dated 23.09.2002 laying down the qualification of passing class-VIII examination for the post of class- IV employee from any school and not from a Government recognized school. Learned Government pleader, however, while defending the impugned order of termination of service of the petitioner has submitted that in course of inquiry made by the Superintendent of Patna Medical College Hospital, it was discovered that the petitioner had produced the certificate in support of his educational qualification of having passed class- VIII examination from Baudh Middle School, Musallahpur, Patna which on verification from the District Education Officer, Patna and District Superintendent of Education, Patna was reported to be a certificate of such a school which was non Government School and therefore, the Superintendent of Patna Medical College Hospital having referred the matter to the Director In Chief of the Health Department as also receiving the order from him had passed the impugned order holding the petitioner to be not qualified for appointment on class-IV post. 4 In the considered opinion of this court, the cancellation of appointment of the petitioner without giving him a show cause notice and/or opportunity of hearing it is itself sufficient to vitiate the impugned order of termination of the service of the petitioner. The petitioner had been appointed on 07.05.2004 on the specific recommendation of the District Compassionate Appointment Committee which had found the petitioner fit for appointment subject verification of his original certificate and therefore when the Superintendent of Patna Medical College Hospital had not only verified the original certificate but had also issued appointment letter as also accepted his joining on 09.06.2004 and he was allowed to continue in service for next one and half year, the same could not have been cancelled without complying the principles of natural justice. It is true that in the appointment letter there was a specific clause that the petitioner will have to furnish the original certificate of his educational qualification, caste 5 certificate and certificate in proof of his age alongwith medical certificate of the Civil Surgeon at the time of his joining and his payment of salary was also kept subject to the approval of the form of his appointment by Director In Chief of the health services, but when joining of the petitioner was accepted on 9th of June, 2004, w.e.f. 07.05.2001, such appointment of the petitioner could have been cancelled, if the Director In chief of the Health Services had refused to approve the compassionate appointment of the petitioner. There is however, nothing on record to show that the Director In Chief of the Health Services had disapproved the compassionate appointment of the petitioner on compassionate ground. Reference made by the learned Government Pleader to the letter of Director In Chief dated 07.10.2005 would also be of no avail, inasmuch as, all that was said therein was that District Superintendent of Education had found the school of the petitioner namely Baudh Middle School, Musallahpur, Patna be a non Governmental school which was not receiving financial aid from the Government. 6 The view of the Director In Chief that the certificate of educational qualification the petitioner showing to have passed class-VIII from such a school would not be acceptable at the level of the Government can also not lead to an inference to disapproval of the appointment of the petitioner. As a matter of fact, when the Director In Chief had directed the Superintendent of Patna Medical College Hospital to take steps for cancellation of the appointment of the petitioner in accordance with law, it was incumbent upon the Superintendent of Patna Medical College Hospital to have issued notice to the petitioner before passing the impugned order cancelling his order of appointment. That having been not done the impugned order is fit to be quashed only on the ground of violation of the principles of natural justice. This Court would also find sufficient force in the submission of Mr. Prasad that there is no rule of the Government which requires that a person can be appointed on a Class-IV post only if he or she has passed his or her class-VIII examination from a recognized Government School or school receiving grant in aid from the Government. The qualification for the appointment on 7 class-IV post has been prescribed by the State Government in its circular issued from time to time. The Personnel and Administrative Reforms Department vide its letter no. 7805 dated 23rd of September, 2002 in modification to the earlier provisions made for appointment on class-IV post had laid down that:- “(fcgkj ljdkj] dkfeZd ,oa iz”klfud lq/kkj foHkkx] i= la[;k 3@,e 1&19@ 2001 dk0& 7805] fnukad 23 flrEcj] 2002 dh izfrfyfi A) fo"k;%prqFkZoxhZ; inksa ds fy, fu;qfDr dk vk/kkj ,oa izfdz;k A d`I;k i=kad 3@,e 1& 101@97 dk0& 3577] fnukad 25&4&1997 dk funsZ” fd;k tk;s A oxZ 4 ds inksa ij fu;qfDr ds fy, ftu vk/kkjksa ,oa izfdz;kvksa dk fu:Ik.k mDr i= }kjk fd;k x;k gS muesa ls fcUnq 2 ds vUrxZr ;g fu/kkZfjr gS fd “budh “”S{kf.kd ;ksX;rk v"Ve~ oxZ ds mij ,oa izosf”dk ;k blls uhps dh gksxh A” ekuuh; iVuk mPp U;k;ky; ds ,dy ihB }kjk lh0 MCyw0 ts0 lh0 ua0 5310@98 (foHkk"k dqekj cuke fcgkj jkT; ,oa vU;) ds fnukad 6&12&1999 dks ikfjr vkns” (2000 (1) ih0 ,y0 ts0 vkj0& 787) esa ;g dgk x;k gS fd mDr ifji= esa oxZ 4 esa ”S{kf.kd ;ksX;rk dh lhek dk fu/kkZj.k Hkkjr lafo/kku ds vuqPNsn 14 ds fo:) gS vkSj ;g funs” fn;k x;k gS fd ljdkj mls iqujhf{kr djsa A rRi’pkr~ ,y0 ih0 ,0 ua0 1020@2001 (y{eh pkS/kjh cuke fcgkj jkT; ,oa vU;) esa fnukad 5&11&2001 dks ikfjr vkns” esa ekuuh; iVuk mPp U;k;ky; ds [kaMihB }kjk ;g Li"V fd;k x;k gS fd U;wure ”S{kf.kd ;ksX;rk dk fu/kkZj.k oS/k gS vkSj bls lafo/kku ds vuqPNsn 14 ,oa 16 dk mYya/ku ugha dgk tk ldrk gS A of.kZr fLFkfr esa mDr ifji= esa vf/kdre ”S{kf.kd ;ksX;rk okys va” dks foyksfir djus gsrq mDr ifji= ds fcUnq 2 esa la”ksf/kr djuk vko’;d gks x;k gS A 2&vr%ekuuh; iVuk mPp U;k;ky; ds mDr vkns”ksa ds vkyksd esa mi;qZDr i=kad 3577] fnukad 25&4&1997 ds fcUnq 2 dks fuEukuqlkj la”ksf/kr fd;k tkrk gS& orZeku izko/kku la”ksf/kr izko/kku budh ”S{kf.kd ;ksX;rk budh U;wure 8 v"Ve oxZ ds mij ”S{kf.kd ;ksX;rk ,oa izosf”dk ;k v"Ve oxZ mRrh.kZ blls uhps dh gksxh A dh gksxh A i=kad 3577] fnukad 25&4&1997 ds ”s"k izko/kku ;Fkkor~ jgsaxs A” From the reading of the aforementioned circular of the State Government dated 23.09.2002, it is clear that a person seeking appointment on class- IV post must have passed class-VIII examination. The aforementioned Government circular, however, gives no indication that class-VIII examination has to be passed only from a Government school or Government recognized school. True it is that the said Government circular dated 23.09.2002 has only partly modified earlier Government Circular in memo no. 3577 dated 25.04.1997 and has retained rest of the provisions of memo no. 3577 dated 25.04.1997 but then nothing has been brought on record by the counsel for the State either in the Counter affidavit or otherwise to show that in the said Government circular in memo no. 3577 dated 25.04.1997, there was a provision that the candidates passing the qualifying class-VIII examination only from the 9 school recognized by the State Government. There is in fact a lot of discrepancy in the approach of the District Superintendent of Education, Patna himself who in his report had merely held that the Baudh Middle School, Musallahpur, Patna was a non governmental school which was not receiving financial aid from the State Government whereas the Director In chief of the Health Services has gone to hold that the certificate of Baudh Middle School, Musallahpur, Patna cannot be accepted by the Government. The impugned order passed by the Superintendent of Patna Medical College Hospital, though it refers to the communication of the District Superintendent of Education and that of the Director In chief of the Health Services Bihar but it also does not clearly specify that the petitioner did not fulfil the requisite qualification of being appointed against class-IV post as laid down by the State Government. This Court, however, would fail in its duty, if it does not take into account that a large number of persons have claimed appointment on Class-IV post in 10 Patna Medical College Hospital by producing the certificate of Baudh Middle School, Musallahpur, Patna as would be evident from the letter of the Director In Chief of the Health Services and the letter of the Superintendent of Patna Medical College Hospital, contained in Annexure-C and Annexure-D to the counter affidavit. It also appears that the payment of salary of such persons appointed on the basis of certificate of educational qualification from Baudh Middle School, Musallahpur, Patna had been witheld for holding inquiry as with regard to the very existence of such school. Therefore, if the Superintendent of Patna Medical College Hospital was of the view that the certificate of educational qualification produced by the petitioner was from a fictitious institution, and accordingly there was no proof of the petitioner having passed class-VIII examination, probably such reasons could have been upheld but that has not been stated in the impugned order. In such a situation, this Court will have no option but to quash the impugned order of termination 11 of the services of the petitioner as the same has been passed in complete violation of the principles of natural justice. The Superintendent of Patna Medical College Hospital if he is satisfied that the petitioner does not possess the requisite educational qualification will be however, at liberty to issue a show cause notice to the petitioner directing him to file his show cause reply, for his appointment on a class-IV post but while doing so, he must give his reasons for coming to such a conclusion so that the petitioner can file an effective show cause reply. This exercise of issuing a show cause notice to the petitioner and a final decision after considering the show cause reply must be completed within a period of six months from the date of receipt/production of a copy of this order. This Court, however, in the meantime would direct the Superintendent of Patna Medical College Hospital to pay salary of the petitioner for the period from 07.05.2004 to 10.01.2006, inasmuch as, there is no dispute that the petitioner had worked after his appointment against a class-IV post in 12 Patna Medical College Hospital. In fact similar directions have already been issued by this Court for payment of salary in respect of six other class-IV employees namely Smt. Champa Kumari, Smt. Shyampati Devi, Basanti Kumari, Phula Kumari, Daulatia Kumari and Shila Kumari all female attendants as is clear from the order of Superintendent of Patna Medical College Hospital in his memo no. 8273 dated 06.08.2007 (Annexure-8). Thus the salary of the petitioner for the period of his working must be paid immediately and in any case within a period of three months from the date of receipt/production of a copy of this order. It is however, also made clear that if the Superintendent of Patna Medical College Hospital becomes satisfied on the basis of show cause reply furnished by the petitioner that he had possessed the requisite qualification of having passed class-VIII examination, he would not only restore the earlier appointment of the petitioner but would also make payment of arrear and current salary for the period of 10.01.2006 onwards as the solitary reason for 13 preparation of service of the petitioner would itself evaporate. If however, the Superintendent of Patna Medical College Hospital would find the petitioner ineligible for appointment on class-IV post due to lack of educational qualification and the certificate of passing of class-VIII examination filed by the petitioner is found to be fictitious on the ground of Baudh Middle School, Musallahpur, Patna to be non- existent school on a date on which the petitioner is said to have passed class VIII examination or for any connected reason, he would record a speaking order to this effect and communicate the same to the petitioner as early as possible but in case not later than six months from the date of receipt/production of a copy of this order. This application, to the extent indicated above, is allowed. Abhay Kumar/Ranjan ( Mihir Kumar Jha, J.)