IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.11030 OF 2007 BINOD KUMAR SINHA, S/O SHRI RAJENDRA PRASAD, R/O VILLAGE JAMUAWAH, POLICE STATION WAGIRGANJ, DISTRICT GAYA, LABORATORY TECHNICIAN ANUGRAH NARAYAN MAGADH MEDICAL COLLEGE HOSPITAL, GAYA. …………………PETITIONER. VERSUS THE STATE OF BIHAR. 2.THE HEALTH COMMISSIONER HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DEPUTY SECRETARY, HEALTH AND FAMILY WELFARE, DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE DIRECTOR IN CHIEF, HEALTH SERVICES, GOVT. OF BIHAR, PATNA. 5.THE SUPERINTENDENT, ANUGRAH NARAYAN MAGADH MEDICAL COLLEGE HOSPITAL, GAYA. ………………………RESPONDENTS. --------- For the petitioner: Mr. Rajendra Prasad singh, Sr.Adv, Mr. Rajeev Kumar Singh, Adv and Mr. Mukesh Kumar singh. For the State : Mr.Gautam Bose,A.A.G-8. Mr. Rajesh A.C to G.P 6. ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER 06.09.2011 Mihir Kumar Jha, J. Heard counsel for the parties. 2. The prayer of the petitioner in this writ application is to quash the order dated 25.04.2007 as contained in Annexure-1/A so far it relates to the petitioner. 3. Learned counsel for the petitioner assailing the order dated 25.04.2007, whereby and whereunder, the services of six persons including the petitioner have been terminated with a direction to also recover the salary paid to them in view of report of Accountant General, has submitted that the said order seems to have been passed actually on a dictation of the office of Accountant 2 General Bihar and that too without following the bare minimum requirement of the principles of natural justice. He has further submitted that from the counter affidavit, it becomes clear that neither the Accountant General had given any such direction to terminate the services of the petitioner nor the facts mentioned therein as intimated to the Auditors of the Office of the Accountant General leading to recording of adverse finding against the petitioner are correct. He has also submitted that the show cause notice given to the petitioner was confined only on the aspect that the appointment of the petitioner was made by the Principal of the College who had allegedly no jurisdiction to make such appointment but subsequently respondents have made an attempt to justify such order of termination by raising various pleas including non- adherence of the prescribed procedure in the initial appointment of the petitioner on the post of Laboratory Technician. 4. Counsel for the State would submit that the case of the petitioner that he was appointed in 1983 pursuant to Advertisement No. 86 of 1981 is incorrect inasmuch as on an inquiry it had transpired that not a single appointment was made pursuant to the said advertisement and therefore, the natural presumption would be that the appointment of the petitioner was made by the Principal of Pataliputra Medical College Hospital, Dhanbad without following the prescribed procedure i.e. advertisement 3 followed by selection through the competent Selection Committee, preparation of roster and appointment after following the prescribed policy of reservation. 5. In the present case whatever has been submitted by the petitioner in defence of his appointment in paragraph no. 7 onwards may be his case for justifying his appointment by the Principal of Pataliputra Medical College Hospital, Dhanbad but the fact remains that the petitioner having been appointed initially on the post of Laboratory Technician for a period of six months on 12.03.1983 by the Principal of the Pataliputra Medical College Hospital, Dhanbad, had continued on periodical extension of successive six months till 02.06.1986 when his services were regularized by the Principal of the College. 6. The next aspect which would be relevant for this case is as to whether the Principal of the College had the power to make the appointment on the post of Laboratory Technician in the year 1983 or to regularize his services in the year 1986. Counsel for the State has fairly conceded that in the year 1983 the Principal of the Medical College was the Appointing Authority of the post of Laboratory Technician and the power of appointment of the post of Laboratory Technician was delegated to the Director in Chief for the first time only on 07.03.1990. Therefore, the solitary reason given in the show cause notice dated 12.11.2005 of the appointment of the 4 petitioner being made by an incompetent authority i.e. the Principal does not get support from any rule/regulation/government circular. It thus also becomes clear that the said show cause notice in fact was issued on some of the findings recorded by the Auditors of the office of Accountant General in its report dated 18.10.2005. The said report of the Auditors of A.G. is part of Annexure-A to the counter affidavit, wherein, while dealing the case of the petitioner all that was recorded, therein, reads as follows:- 2- Jh fouksn dqekj flUgk tUe frfFk & 20-01-1960 izFke ;ksxnku & 14-03-1983 in & iz;ksx”kkyk izkoSf/kd budh fu;qfDr izkpk;Z ikVyhiw= fpfdRlk egkfo|ky; /kuckn ds vkns”k la0&701 fn0 12-03-83 ds }kjk rnFkZ :i ls 6 ekg ds fy, iz;ksx”kkyk izkoSf/kd ds in ij fd;k x;k Fkk rFkk le; le; ij vof/k foLrkj nsrs gq, dk0 vk0 la0 1270 fn0 02-06-86 ds }kjk lsok fu;fer dh xbZA bl lanHkZ esa ys[kk ijh{kk dk dguk gS fd iz;ksx”kkyk izkoSf/kd in ij fu;qfDr funs”kky; Lrj gksuh pkfg, ,oa bl in ij fu;qfDr jkT; Lrj ij dh tkuh pkfg,A fdu ifjfLFkfr;ksa esa Jh flUgk dh fu;qfDr bl in ij v/kh{kd }kjk dh xbZ] blds tckc esa v/kh{kd }kjk dgk x;k fd rrdyhu izkpk;Z /kuckn bl ij fu;qfDr gsrw l{ke inkf/kdkjh ugha Fks rFkk funsZ”kkuqlkj ea=heaMy fuxjkuh foHkkx ,oa funs”kd izeq[k] Lok0 foHkkx dks fy[kk tk;sxk vkSj dh xbZ dkjZokbZ dh tkudkjh egkys[kkdkj dks nh tk;sxh A** 7. It thus becomes clear that whatever information was given to the Accountant General by the Superintendent of Magadh Medical College and Hospital, Gaya was itself incorrect, inasmuch as, he had wrongly informed to the Auditor of the Office of the Accountant General that the Principal of the Pataliputra Medical College Hospital, Dhanbad had no such power of making appointment on the post of Laboratory Technician in the year 1983. Therefore, this Auditor’s report dated 18.10.2005 itself could not have been made basis for issuance of a show cause notice 5 dated 12.11.2005 much less for termination of services of the petitioner by the impugned order dated 25.4.2007. 8. As a matter of fact any inquiry in 2005 as with regard to the initial appointment of the petitioner on the post of Laboratory Technician had to be made from the Authorities of the Pataliputra Medical College Hospital, Dhanbad not from the Authorities of Magadh Medical College and Hospital, Gaya. The petitioner had been transferred from Dhanbad to Gaya under the orders of the Director in Chief dated 26.07.1986 only after his services were regularized by the Principal of the Pataliputra Medical College, Hospital, Dhanbad on 2.6.1986 which was also brought to the notice of the State Government. In that view of the matter, this Court would hold that the solitary reason for termination of the services of the petitioner being the aforesaid report of Auditors of the office of Accountant General, based on non est and non existent materials, is itself bad both on fact and in law. 9. The submission of the learned counsel for the State that prescribed procedure was not followed in the initial appointment of the petitioner in 1983 or that the appointment of the petitioner was not made pursuant to the Advertisement No. 86 of 1981 seem to be fresh materials which were neither confronted by the petitioner in the show cause notice dated 12.11.2005 nor was mentioned in the report of the Auditors of Accountant General dated 18.10.2005. This Court would also not allow the 6 respondents to now make out a new ground which was never taken in course of inquiry, wherein, the petitioner was given the notice dated 12.11.2005 which reads as follows:- ^^v/kh{kd dk;kZy; vuq0 uk0 ex/k esfMdy dkWyst vLirky] x;kA i=kad 1961 @ fnukad 12 uoEcj 05 izsf"kr Jh fouksn dqekj flUgk iz;ksx'kkyk izkoSf/kd vuq0 uk0 ex/k esfMdy dkWyst vLirky x;k egkys[kkdkj] fcgkj iVuk ds i=kad 175 fnukad 18-10-05 }kjk izkIr va'ksRrj vkifRr ds dafMdk&3 dk va'k&1 ds }kjk vkidh iz;ksx'kkyk izkoSf/kd ds in ij dh xbZ rnFkZ fu;qfDr@fu;ferdj.k dks beyond jurisdiction ekuk x;k gSA D;ksafd vkidk in jkT; Lrjh; gS vkSj bl in ij fu;qfDr gsrq funs'kd izeq[k] Lok0 lsok,a] fcgkj] iVuk la{ka; inkf/kdkjh gSA egkys[kkdkj ds mi;qZDr vads{k.k vkifRr ds vkyksd esa funs'kd izeq[k Lok0 lsok;sa] fcgkj iVuk ls vkidks lsok esa j[kus@gVkus ds laca/k esa funs'k ekaxs tk jgs gSA bl laca/k esa vki viuk Li"Vhdj.k i= izkfIr ds rhl fnuksa ds vUnj nsa vU;Fkk vkidks lsok ls gVkus ds lEca/k esa ,drjQk fu.kZ; ysuk iM+sxkA g0@& v/kh{kd vuq0 uk0 ex/k esfMdy dkWyst] vLirky] x;kA** 10. As a matter of fact when the petitioner had asked for a copy of the report of the Auditors of the Accountant General he was given a terse reply dated 17.11.2005 by the Superintendent that the report of the Accountant General was a confidential document and could not be supplied to him and as such the petitioner should submit his explanation only in the light of facts mentioned in show cause notice dated 12.11.2005. It therefore, becomes clear that even the minimum requirement of the principles of the natural justice was not followed and the petitioner was shown the door without even affording him an opportunity of hearing in its true sense and perspective. 7 11. Apart from the question of violation of principle of natural justice which by itself would vitiate the impugned order of termination of service of the petitioner, this Court must hold that even otherwise the report of the auditors of the office of the Accountant General which has paved the way for termination of service of the petitioner was based on non-est and non-existant materials. 12. The only objection raised in Accountant General’s report was that the Principal of Patliputra Medical College, Dhanbad had no power and jurisdiction to appoint the petitioner on the post of Laboratory Technician was factually incorrect and in fact an error of record as has been also admitted in the counter affidavit. 13. As a matter of fact, when it has been conceded even by the learned AAG-8 that in the year 1983 when the petitioner was appointed on the post of Laboratory Technician, such power had been delegated to the Principal of the Medical College, there would be no difficulty in holding that the order of termination of the petitioner in fact was based on non-est and non-existant ground. In a similar case arising out of the same impugned order, this Court while setting aside the order of termination of Jitendra Prasad Singh in CWJC No. 7049 of 2007 had held that his initial appointment having been made in the year 1988 in M.G.M. Medical College & Hospital, Jamshedpur on the post of Clerk and his transfer to the A.N. Medical 8 College, Gaya followed by his regularization of service on the post of Clerk in A.N. Medical College, Gaya on 31.5.1989 would make his case distinguishable from others, specially when the fact relating to his regularization of service on 31.5.1989 was not produced to the notice of the Accountant General. In the case of Jitendra Prasad Singh (supra), this Court in fact had held as follows:- “Having heard the learned counsels and considered the matter, in my view, the order of termination, which is solely based on the report of the Accountant General, cannot be sustained. As noticed above, these two letters were not disclosed to the Accountant General in earlier stage. In my view, State having accepted the authenticity and the correctness of the said two letters, it cannot now ignore the same. Thus, I have no option but to hold that the services of the petitioner and the persons mentioned in those correspondences stood regularized in the year 1989 itself and, that being so, there was no question of reopening the matter as regularization itself presupposes initial irregularity have not been committed. Thus, the impugned orders terminating the services of the petitioner cannot be sustained. The impugned order is, thus, quashed. It would be deemed that the petitioner is in service continuously with all consequential benefits. However, as the petitioner has not worked since the order of termination was passed, the petitioner would be entitled to 50% of the remuneration for the period of termination till his reinstatement but would have full continuity in service. Consequently, petitioner’s joining, upon setting aside the order of termination, would be accepted by the A.N.M. Medical College & Hospital, Gaya immediately on production of a copy of this order before him.” 14. Based on the aforementioned consideration and in the light of law laid down in the case of Jitendra Prasad Singh (supra), this Court will have no difficulty in holding that the impugned order of termination, so far it relates to the petitioner, cannot be sustained either in fact or in law. Accordingly, the order terminating the services of the petitioner as contained in Annexure-1 and 9 1/A, so far it relates to the petitioner, is hereby quashed with a consequential direction for his reinstatement in service. Consequently the petitioner’s joining upon setting aside the order of termination would be accepted by Superintendent of A.N. Medical and Hospital, Gaya immediately on production of a copy of this order before him. 15. The petitioner having been continued in service till 12.03.1983 and removed by the impugned order dated 25.04.2007 i.e., after 24 years of service on the same principles as laid down in the case of Jitendra Prasad Singh (supra) this court would also hold the petitioner to be entitled for payment of only 50 per cent of his salary only towards the back wages for the period he had remained out of service i.e. 26.4.2007 to 6.9.2011 but the said period would count for all other purposes including for computation of his qualifying service for payment of post retirement benefit. At the same time the Respondents are also restrained from making any recovery of the salary already paid to the petitioner for the period 12.3.83 to 25.4.2007 as contemplated in the impugned orders contained in Annexure-1 and 1/A. 16. In the result, this writ application, is allowed but only to the extent indicated above. (Mihir Kumar Jha, J.) Patna High Court Dated the 6th September 2011 N.A.F.R./Ranjan