IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5751 of 2009 KAMLESH SHARMA Versus THE STATE OF BIHAR & ORS ----------- 2. 5.5.2009 Heard learned counsel for the petitioner and the State. The petitioner was appointed as a basic health worker on 6.9.1988 under the signature of the Civil Surgeon-cum-Chief Medical Officer. He continued to discharge duties in that capacity till a show cause notice was issued to him on 29.7.1989 at Annexure-2 as to why his services be not terminated. He came to this Court in C.W.J.C. NO. 8451 of 1991. On 6.12.1991 this Court set aside the order of termination as being in violation of principles of natural justice with liberty to the respondents to proceed afresh in accordance with law. On 13.5.1993 fresh show cause notice was issued on the issue of his appointment. After enquiry, orders were passed by the District Magistrate, Gaya on 13.7.1995. The order is reasoned. It stated that there were allegations against the petitioner of irregular appointment. This mater was inquired into. After enquiry, the allegations have not been proved. Directions were then given to recommence payment of salary. This report is on record at Annexure-8. Nearly nine years later a fresh show cause notice was issued to the petitioner on 30.6.2004 to substantiate the legality of his appointment within twenty four hours. Similar notice was issued to one Akhilesh Kumar. He and the petitioner both came to this Court in C.W.J.C. No. 9904 of 2004 and 10652 of 2004 respectively. The writ application of Akhilesh Kumar was allowed on 21.11.2005. This Court observed, when there - 2 - is a marked similarity on facts, on an enquiry held on the appointment earlier that the matter pertaining to appointment of the petitioner was examined, if the authorities were not satisfied they could have initiated a departmental proceeding but have acted in a very cavalier fashion. The order of termination was set aside. Unfortunately the writ petition of the present petitioner remained pending and was tagged with L.P.A. No. 946 of 2003 and analogous cases which were generally disposed with direction referring the matter to a committee for scrutiny by the Government. The case of the petitioner has then been examined and the impugned order dated 24.7.2004 terminating the petitioner from the date of appointment as an illegal appointee passed. It has been specifically stated at Paragraph 27 of the writ application that this scrutiny committee did not provide an opportunity of hearing to the petitioner. The Division Bench in L.P.A. No. 946 of 2003 did not give any direction or mandamus to the respondents to hold an ex parte enquiry. The validity of the appointment of the petitioner stood confirmed by an earlier report dated 13.7.1995. He was to be prejudicially affected. He had a right to be heard. No authority, much less a Court of law, can act in a manner contrary to the principle that no man can be condemned unheard which has now been interpreted to form part of Article 14 of the Constitution of India. If the respondents had acted prudent and had given an opportunity to the petitioner, he would have placed earlier enquiry report dated 13.7.1995 in his favour before them. The impugned order dated 2.7.2004 does not deal with or - 3 - consider the earlier enquiry report dated 13.7.1995. Additionally, the impugned order is patently illegal on the face on it in view of the principles laid down in the judgment reported in A.I.R. 1966 SC 951 (R Jeevaratnam vs. State of Madras) that there can be no retrospective termination of service. The impugned order terminates the services retrospectively from the date of appointment. The order is additionally bad on that ground. This Court in the facts and circumstances is satisfied that the respondents have much to answer. No useful purpose shall be served by keeping the writ application pending before this Court, staying the order of termination directing the respondents to file a counter affidavit, to be taken up years later. This Court is satisfied that justice demands the impugned order of termination in its present form be set aside. The petitioner stands reinstated. This shall not preclude the respondents from proceeding afresh in accordance with law if so adviced in light of the aforesaid discussion. Before concluding this Court considers it necessary to observe that there has to be finality in governmental action. Power is vested by the Government in its officials to be exercise in accordance with law in the interest of the Government. The officers cannot become the Government. Every action of there has to be guided by reasonableness and fairness. It has been noticed above that the officer has ignored the earlier enquiry report. They seek to raise issues much belatedly, years after the appointment. It is the respondents who are - 4 - creating uncertainty. No Government servant can be expected to function in this atmosphere with a democlese sword hanging over his head unless he has a security of tenure. If the Government is satisfied that the appointment was invalid surely it has the powers to terminate such appointment and long continuance cannot be a defence simplicitor. But before a finding of an illegal appointment is arrived at, the finding was to be in accordance with a procedure known to law. The writ application is allowed. The petitioner stands reinstated with liberty to the respondents as noticed hereinabove. If the petitioner prefers any application for back wages, the respondents are obliged to consider the same after holding an enquiry in accordance with law and decide the issue of back wages. Let the same be done within a maximum period of 12 weeks from the date of receipt/production of a copy of this order. P. Kumar (Navin Sinha, J.)