IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6565 of 2008 KUM KUM SINGH . Versus THE STATE OF BIHAR & ORS . ----------- For the petitioner:- Mr. Ashok Kumar Singh & Mr. Prabhat Kumar Singh,Advocates For the State:-Mr. Braj Kishore Pd. Singh, G.P.III 6 26.11.2009 The petitioner completed her training of A.N.M. course in the year 1991. She was appointed by letter vide Memo no. 568 dated 20.7.1994 issued by the Civil Surgeon-cum- Chief Medical Officer, Madhepura, on the vacant post of Lady Health Worker, as she fulfilled requisite qualification, for appointment to the post. She gave her joining on 21.7.1994 at Additional Primary Health Centre, Gwalpara. Just four months after her appointment, the Civil Surgeon-cum-Chief Medical Officer, Madhepura, issued a letter vide memo No. 1423 dated 7.11.1994, whereby petitioner along with 12 other persons were terminated from service, on the ground, that appointments were illegal and made contrary to the Government Circular and reservation policy. In compliance of the 2 Civil Surgeon’s order, the Incharge Medical Officer, Primary Health Centre, Gwalpara issued termination order dated 9.11.1994 contained in Memo no. 319 terminating services of petitioner and 11 other persons. The termination order was challenged by 11 persons, except the petitioner. Two writ applications were filed challenging the order of termination. One Samouli Devi filed CWJC No. 450 of 1995 and 10 others filed CWJC No. 734 of 1995. Case of Samouli Devi was disposed of with a direction to take final decision relating to the validity of appointment within eight weeks, with a clear stipulation that if no decision is taken within eight weeks, then her appointment shall stand affirmed. CWJC No. 734 of 1995 was disposed of with a direction to Civil Surgeon and Establishment Committee to consider petitioners’ cases, in accordance with law. No decision was taken in case of Samouli Devi as well as others, as such contempt 3 application was filed. During the pendency of contempt case, by order dated 26th December, 1999, Selection Committee rejected petitioners’ case on the ground that appointing authority was not competent to appoint the petitioners. Termination order dated 26th December, 1999 was challenged by filing CWJC No. 1426 of 1999, CWJC No. 2829 of 1999 and CWJC No. 2727 of 1999, which were heard analogous and decided by a common order dated 26th June, 2000. Case of Samouli Devi ( CWJC No. 2829 of 1999) was allowed as Selection Committee had failed to take any decision within the stipulated period of eight weeks. She was held to be affirmed on the post in terms of earlier decision. The other two writ applications ( CWJC No. 1426 of 1999 and CWJC No. 2727 of 1999) were also allowed with a finding that Selection Committee has passed order without any application of mind. The posts of A.N.M. and Staff Nurse Grade-A, prior to 10th June, 1996, 4 used to be filled up in the manner laid down under Bihar Health Manual. Subsequently vide resolution dated 10th June, 1996, the State of Bihar made certain changes in the procedure of appointment. In terms of old guideline (Bihar Health Manual) on successful completion of Grade-A Nurses training, they used to be absorbed in the services of the State. After 10th June, 1996, appointments were required to be made after due selection and test through Bihar Public Service Commission. Petitioners since appointed in 1994, much earlier to 10th June, 1996, there was no need to observe the 1996 appointment process in their cases, as rules are always prospective, unless made retrospective. In case of petitioners’ appointment old rule was to be followed, which was in vogue at the time of their appointment. They were to be appointed by such appointing authority, who was competent to make appointment at the relevant time. Civil Surgeon being the 5 appointing authority under the Bihar Health Manual petitioners were appointed by the competent authority. Subsequently petitioner also approached the authorities to allow her similar relief as has been allowed to others, as she had also been terminated from her service by same order, which was ultimately quashed by the High Court. Petitioner also prayed for her re- instatement. Petitioner was directed to submit all documents relating to her appointment. The Civil Surgeon-cum-Chief Medical Officer, Madhepura also sought for a direction from the Higher authorities in this regard and finally the petitioner was taken back in service vide order dated 16.11.2000 issued by the Civil Surgeon- cum-Chief Medical Officer, Madhepura in the light of the orders passed in CWJC No. 2829 of 1999 and analogous cases. On the next date, i.e. 17.11.2009 petitioner gave her joining at the same place, where she was working prior to 6 her termination. Subsequently, the Director, Health Services vide memo no. 26(6) dated 13.1.2001 directed the Civil Surgeon-cum-Chief Medical Officer, Madhepura to report regarding the compliance of the order passed in CWJC No. 2829 of 1999 and analogous cases. The petitioner, reinstated by the Civil Surgeon-cum- Chief Medical Officer, Madhepura in the light of the order passed in CWJC No. 2829 of 1999 was again asked to submit her show cause by the Civil Surgeon Cum Chief Medical Officer, Madhepura vide memo no. 798 dated 20.8.2001 as to why she should not be removed from her service as the benefit of reinstatement in the light of the direction of the High Court is available only to the writ petitioners. Since she was not a writ petitioner she is not entitled for similar relief and her reinstatement is irregular. Petitioner submitted her show cause stating that due to poverty she could not join the writ petitioners of CWJC No. 2928 of 1999 and 7 analogous cases but she is also entitled for similar relief as by the same termination order dated 7.11.1994, all 12 persons were removed from their service and that has been held illegal. Since, the termination order has been quashed on the ground of illegality, it will have application in case of all such persons who were terminated by the same impugned order. In the meantime, the Commissioner, Koshi Division vide his letter no. 730 dated 6.10.2001 issued a general order to the Civil Surgeon-cum-Chief Medical Officer, Madhepura to inquire into illegal appointments made in the Health Department, whereby several persons have been appointed. A direction had also been issued through this letter, that on detection of illegality in the appointment, services of illegal appointees should be terminated and the departmental action be taken against Officers making such illegal appointments. Again the Additional Secretary to the Government sent 8 letter no. 2912 dated 5.12.2002 to the Civil Surgeon-cum-Chief Medical Officer, Madhepura to terminate services of all illegal appointees in the Health Department by issuing a show cause. In case of non-compliance, presumption will be that authority himself is involved in such illegal appointments. Petitioner’s case is that under this threat the Civil Surgeon cum-Chief Medical Officer terminated the petitioner from her service by issuing letter No. 1456 dated 31.12.1002 on the ground, that not being a writ petitioners, benefit of re-instatement available to the writ petitioners was not available to her. The termination order was challenged by petitioner by filing CWJC No. 1321 of 2003 which was heard analogous with other writ petitions and allowed. The termination order was quashed. The State preferred LPA No. 477 of 2005 which was heard along with LPA No. 946 of 2003 and all analogous cases were 9 disposed of with a direction to constitute a five men committee to examine the legality of the appointment of all such persons whose cases were under consideration. Petitioner’s case is that during the pendency of the L.P.A. a High Level Committee had been constituted by the State and in the report submitted by the High Level Committee petitioner’s appointment was placed in the category of irregular appointee, but the Five Men Committee constituted after the disposal of the LPA No. 946 of 2003 and analogous cases did not enquire into the validity of appointment of 245 appointees, which also included the petitioner. MJC No. 671 of 2007 was filed by the State for extension of time as approximately 245 matters were kept pending by the State and no final decision had been taken in those matters, for the reason that records were not available. Those 245 matters were subsequently decided by a Committee under the Chairmanship of Dr. Gita Prasad and 10 the prayer for the extension of the time made by the State was not pursued, as such MJC was dismissed as infuctuous. Petitioner’s case is that without looking into the connected records, an inquiry report was submitted by the Committee. In the case of the petitioner, it is more relevant for the reason that the Civil Surgeon-cum-Chief Medical Officer, Madhepura did send his report to the Committee, but by that time Committee had already submitted its report. The Civil Surgeon in his report had categorized the case of the petitioners as an irregular appointee but the committee without considering any relevant records put the case of the petitioner in illegal appointees’ category. Petitioner’s prayer is for a direction to the respondents to consider her name as valid appointee on the post of Auxiliary Nurse Midwifery (ANM) by the competent authority against the vacant sanctioned post and also for quashing letter no. 1456 dated 31.12.2002 11 issued by Civil Surgeon Cum Chief Medical Officer, Madhepura, whereby she had been terminated from her service on the ground that she was not the writ petitioner in CWJC No. 2829 of 1999 and analogous cases, as such not entitled for similar relief as allowed to the writ petitioners. Counter affidavit has been filed on behalf of the State, wherein a preliminary objection has been raised regarding maintainability of the writ application stating that after five years of the issuance of the termination order contained in letter No. 1456 dated 31.12.2002 the petitioner has preferred this writ application, as such it is fit to be dismissed on the ground of limitation alone. I find that the objection regarding maintainability is not sustainable for the reason that the termination order issued by the Civil Surgeon- cum-Chief Medical Officer, Madhepura contained in letter No. 1456 dated 31.12.2002 12 had already been challenged by the petitioner by filing CWJC No. 1321 of 2009, which was heard analogous and allowed. Against that, the State had preferred LPA No. 477 of 2005 which was also disposed of along with LPA No. 946 of 2003. In that view the termination order was challenged by the petitioner at an appropriate time and that was also quashed by this Court on earlier occasion. In the counter affidavit filed by the State it is stated that petitioner had been appointed by the Civil Surgeon-cum-Chief Medical Officer, Madhepura on 20.4.1994 on temporary basis without following the procedure for appointment. The Chairman of the District Selection Committee, had raised objection and informed the Civil Surgeon, Madhepura in the year 1994 itself that appointment of petitioner has been made without following the procedures for appointment as well as the reservation policy 13 of the State Government. The Civil Surgeon, Madhepura vide order contained in memo No. 1423 dated 7.11.1994 as such cancelled appointment of the petitioner and 12 others. Two writ applications were filed challenging the termination order i.e. CWJC No. 450 of 1995 and CWJC No. 735 of 1995 but the petitioner did not move against the termination order. Somouli Devi, challenged the termination order by filing C.W.J.C. No. 450 of 1995, which was disposed of directing the Civil Surgeon and District Selection Committee to take final decision relating to validity of the appointment of the petitioner Somauli Devi, within eight weeks, with clear stipulation that if decision will not be taken within eight weeks appointment shall stand affirmed. Since, no decision was taken within the stipulated time, as such contempt petition was filed. In the meantime, the Selection Committee rejected her claim on the ground that Civil Surgeon was not 14 competent to appoint. Samouli Devi preferred CWJC No. 2829 of 1999 which was allowed, as no decision had been taken within eight weeks, Somouli Devi’s case can not be equated with the case of petitioner, as no such direction with clear stipulation was there, in case of the petitioners. Other two writ applications, filed by 10 other appointees were disposed of on 26th June, 2000, analogous with CWJC No. 2829 of 1999. The impugned order was quashed on the ground that the Selection Committee should not have rejected the claim of the petitioners on the ground of jurisdiction giving a reference to subsequent guidelines dated 10th June, 1996 as the petitioners were appointed prior to 1996. Counsel appearing for the State, has not been able to justify the stand of respondent in case of petitioners, so far finding of this Court recorded in other two cases i.e. CWJC No. 1426 of 1999 and CWJC No. 2727 of 1999 are concerned. Finding 15 regarding jurisdiction of appointing authority and non application of subsequent appointment rules and procedure, which came into effect on 10th June, 1996, has application in the case of the petitioner. Petitioner had also been appointed in the same transaction in the year 1994 by the same appointing authority, following same appointment procedure as laid down under Bihar Health Manual. Counsel for the petitioner has placed reliance on a decision of the Supreme court in the case of K.T.Veerappa and others vs. State dof Karnataka and others (2006) 9 Supreme Court Cases 406, which related to the grant of revised pay scales to the 23 employees who had earlier approached the High Court but denying the same benefit to appellants as they did not move to the Court for similar relief. The benefit was allowed to only such employees, who approached the High Court. The Apex Court held that grant of the revised pay scale to the 16 23 employees, who had earlier approached the High Court but denying the same benefit to the appellant, similarly placed employees, by the university was unjustified. I find that the decision which has been relied upon by the petitioner is fully applicable in this case. The pay scale was allowed to class of employee and out of that class a limited number of employees approached the High Court for grant of the pay scale as recommended by the U.G.C. In such cases the University/authority cannot deny similar relief to others also who belonged to that category as per recommendation of the U.G.C. In the present case, petitioner and other 11 employees were appointed by orders passed by same authority, almost in the same transaction and terminated by the same order. At the time of issuance of termination order none of them including the petitioner had completed one year of their service. Other terminated employees, except the petitioner, 17 filed two different writ applications i.e. CWJC No. 735 of 1995 and CWJC No. 450 of 1995. Writ application filed by Samouli Devi was disposed of by order dated 28.6. 1996, whereby a direction was issued to the District Selection Committee to take final decision relating to validity of appointment of the petitioner within eight weeks or otherwise her appointment shall stand affirmed. In CWJC No. 735 of 1995 a direction was issued to the Selection Committee to consider the case of the petitioners for appointment in accordance with law. Subsequently writ petitioners in both the writ applications filed these writ applications challenging the order passed by the Selection Committee. There also the case of Samouli Devi was considered on different footing as within eight weeks no decision had been taken by the Selection Committee, as such her appointment was deemed to have been affirmed. In the case of other writ petitioners it was decided that 18 since they were appointed prior to 10th June, 1996 on completion of their training the new guidelines and procedure was not applicable in their case and also that the orders were issued without issuing any show cause notice and without giving any opportunity to defend their cases, as such order passed by Establishment Committee was held illegal and quashed. I find that the termination order was same, its effect was same, as such once it was held to be illegal, every one affected by such order, will be benefited. Relief allowed to others can have beneficial impact on other employees. The petitioner’s stand that she is also entitled for same relief, which was allowed to the writ petitioner of CWJC No. 2829 of 1999, has merit. Petitioner alternatively has challenged the termination order dated 31.12.2002 contained in letter no. 1456 issued by the Civil Surgeon-cum-Chief Medical Officer, 19 Madhepura. Earlier, this order had been challenged by the petitioner by filing CWJC No. 1231 of 2003 and the same was quashed. Against which LPA No. 474 of 2005 was preferred by the State. The LPA was disposed of by common order passed in LPA No. 946 of 2003 and analogous cases, and a High Level Committee was constituted for considering individual cases of all employees, in the light of the guidelines in Uma Devi’s case. Petitioner’s case is that during the pendency of the LPA also a High Level Committee had been constituted by the State authorities and the report of the Committee was placed before the High Court. In that report petitioner’s appointment was put in the category of irregular appointees. The High Level Committee after disposal of the writ application did not consider his case and it was in the list of those 245 which could not be decided due to non-availability and non production of the 20 connected records. Subsequently also the Committee under Chairmanship of another Director-in-Chief, Health Services, submitted a report. The Civil Surgeon-cum-Chief Medical Officer, Madhepura did not produce any connected records relating to the petitioner and that was produced subsequent to the submission of the report in which the petitioner’s appointment was placed in illegal category. However, The Civil Surgeon in its report has placed the petitioner’s appointment in irregular category as petitioner had requisite qualification for being appointed on the post. She was appointed by the competent authority against a sanctioned post and the only criteria which the petitioner lacked, that she had not completed ten years of service, without any intervention of the Court. I find that the termination order issued in the year 2000 had already been quashed by this Court in the earlier writ application and that was not set 21 aside by the LPA Bench. So far the grounds assailing the inquiry report is concerned, there is no denial in the counter affidavit. Petitioner’s submission is that the inquiry Committee submitted report, without considering the representation of the petitioner and without looking into the relevant connected records as well as the report submitted by the Civil Surgeon. In the Civil Surgeon’s report as well as in the report of earlier High Level Committee, the case of the petitioner was categorized as irregular appointment, in that case without there being any fresh material, there was no reason for putting the case of the petitioner in other category. For the reasons stated above, I find that the inquiry report whereby the case of the petitioner has been put in illegal category is fit to be quashed. The respondents are directed to treat the appointment of the petitioner as an irregular appointment and allow her similar 22 benefit which is being allowed to such employees of the Health Department. Petitioner should be reinstated. So far the consequential benefits relating to salary for the intervening period is concerned, the authority will consider and decide it in accordance with law. (Mridula Mishra,J.) A.Kumar