IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15560 of 2009 1. INDRANI JAISWAL W/O SHAMBHU PRASAD JAISWAL R/O VILL.+P.O.- PURNAHIYA KOTHI, P.S.- GHORASAHAN, DISTT.- EAST CHAMPARAN Versus 1. THE STATE OF BIHAR BIHAR, PATNA 2. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, EAST CHAMPARAN AT MOTIHARI 3. REGIONAL DEPUTY DIRECTOR, HEALTH SERVICES, TIRHUT DIVISION, MUZAFFARPUR 4. IN-CHARGE, MEDICAL OFFICER, PAKRI DAYAL, EAST CHAMPARAN, MOTIHARI ----------- 2 3.3.2010 Heard counsel for the petitioner and counsel appearing for the State. Petitioner in this writ application is the widow of Shambhu Prasad Jaiswal, whose appointment has been declared illegal by the Five Men Committee, constituted by the State Government as per the direction of High Court in LPA No. 946 of 2003 and analogous cases. Prayer of the petitioner is for quashing of the inquiry report with respect to her husband, declaring his service as illegal and also for a direction to the respondent to make payment of entire arrears of salary for the period her husband was terminated from his service as well as for making payment of all consequential benefit for which her husband being in service would have been 2 entitled for, including petitioner’s appointment on compassionate ground. Petitioner’s husband was appointed on the post of Store Keeper vide order contained in letter dated 25.11.1980 issued by the Incharge Civil Surgeon, Bettiah West Champaran. The appointment letter had been issued by the Incharge Civil Surgeon, subject to the approval of his service by the Civil Surgeon, Bettiah, West Champaran. Petitioner’s case is that subsequently services of her late husband was approved by the Civil Surgeon, Bettiah, West Champaran, and he was transferred to the office of Civil Surgeon, Motihari against a vacant post. Late Shri Shmbhu Prasad Jaiswal continued in his service for 22 years. In the meantime, he was regularized on his post. His service book was opened. He was treated as regular employee giving time bound promotion, increments and all such benefits, which is allowed to a regular employee. In support of this contention, service book of Shmbhu Prasad Jaiswal has been annexed with the writ petition. Petitioner’s case is that for the first time legality of theappointment 3 of Shambhu Prasad Jaiswal was questioned in the year 2003, after 22 years of his appointment. The Civil Surgeon-cum-Chief Medical Officer,East Champaran at Motihari sought for an explanation by issuing letter dated 28.2.2003 and also issued an order terminating Shambhu Prasad Jaiswal from his service with retrospective effect of his date of appointment. The termination order had been issued without assigning any opportunity to show cause, as such it was challenged by filing CWJC No. 5284 of 2003. The writ application was allowed vide order dated 8.9.2003. The order passed in the writ application was challenged by the State in LPA No. 1095 of 2003 which was heard analogous with LPA No. 946 of 2003. LPA No. 946 of 2003 and analogous cases were disposed of vide order dated 26.6.2006, whereby a direction was issued to the State Government to constitute five Men Committee to inquire into the legality of the appointments of all such employees, whose matters are under consideration, to submit a report and give one time opportunity of regularization, in appropriate cases. 4 Petitioner’s case is that the Inquiry Committee in fact never issued any notice to the petitioner’s husband. Petitioner’s husband was not given any opportunity to defend his case. Her husband died on 15.1.2008, after his death on 31.12.2008 Inquiry Report was submitted showing the appointment of late Shambhu Prasad Jaiswal as illegal. In cases of regular appointment, order for re-instatement was directed to be passed. Counsel for the petitioner has submitted that the manner in which the Inquiry Report has been submitted by the Five Men Committee, in the matters of the appointment of late Shambhu Prasad Jaiswal, is indicative of this fact that there was no proper inquiry. Inquiry was an eye-wash. The inquiry report was submitted against the dead person. Late S.P.Jaiswal was a regular employee and in case of such an employee, termination order could not have been issued simply by issuing a show case notice. There should have been proper inquiry, giving the employee an opportunity to defend his case. The termination order could have been 5 issued only after initiating a departmental enquiry as provided under the rule. The Five Men Inquiry Committee did not even examine the service book of the petitioner, which could have revealed that on the date of issuance of the letter of his termination, he was not a daily wager, rather a regular employee confirmed against his post. In case he was not a daily wager the termination order could not have been issued against him, in a manner it was issued. Such termination was illegal. In case of regular employee, there is no applicability of the decision of Supreme Court in case of State of Karnataka & ors. Vs. Uma Devi and ors, reported in 2006 (2) PLJR (SC) 363. Only in cases of daily wager, on the principles decided in this case, giving one time benefit they could be regularized on the posts, against which they were working as daily wager. It is also submitted by the petitioner’s counsel that for 23 years, her husband continued on the post, finding his service to be satisfactory an approval was given to his appointment. He was regularized with all benefits of a regular employee. Since nothing was considered by the Five 6 Men Committee and report was submitted after his death, showing that he was illegally appointed, is nothing but proof of the fact that inquiry report was an eye-wash. The termination order issued earlier had already been quashed by the Writ Court. LPA did not set aside that order and simply the matter was remitted back to the Five Men Committee for holding an inquiry. That was not done in this case, as such the order passed by the Writ Court remained intact and the petitioner in this circumstance, being the widow of a regular employee is entitled for all benefits, for which an employee, who dies in harness, his legal heirs are entitled. Counter affidavit has been filed on behalf of the State. In para 9 of the counter affidavit it is stated that since appointment was not done by Competent authority, neither any advertisement was made nor selection committee was ever constituted, as such petitioner’s husband was terminated from service. No- where in the counter affidavit, there is any whisper as to who was the competent authority for making appointment on such posts and in case he was appointed 7 as daily wager but subsequently regularized, what treatment should have been given to him in the changed circumstances. Regarding inquiry report, submitted after the death of the petitioner, there is no statement in the counter affidavit. Considering all these facts, I find that the Inquiry Report dated 31.12.2008 is fit to be quashed so far it relates to late S.P.Jaiswal. On account of the quashing of the Inquiry Report, the order passed by the Writ Court will automatically be revived and petitioner’s husband will be deemed to be reinstated with effect from the date of termination and petitioner thus entitled for all benefits for which her late husband, in case of remaining in service would have been entitled. The benefits include arrears of salary, with all consequential benefits and petitioner, being the legal heir of Government employee dying in harness,, for family pension as well as compassionate appointment. This writ application is being allowed, directing Respondents no.2 and 4 to pass necessary orders in favour of petitioner for payment of arrears of 8 salary of her late husband inclusive of all consequential benefits, pensionary benefits/family pension. Respondents are further directed to consider petitioner’s case for compassionate appointment, in case petitioner files an application for it. Payments must be made within three months from the date of production/communication of this order. (Mridula Mishra,J.) A.Kumar