IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.13414 OF 2007 RAMESHWAR PRASAD, S/O SRI BASDEO PRASAD, R/O VILLAGE BEHERIA BANKATWA, P.S SIKTA, DISTRICT WEST CHAMPARAN. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY, HEALTH MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 2.THE DIRECTOR IN CHIEF, HEALTH SERVICES, GOVT. OF BIHAR, PATNA. 3.THE REGIONAL DEPUTY DIRECTOR, HEALTH SERVICES TIRHUT DIVISION, MUZAFFARPUR. 4.THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, WEST CHAMPARAN, BETTIAH. 5.THE INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, BAGAHA-I, WEST CHAMPARAN. ………………………RESPONDENTS. ----------- 03/ 18.11.2011 Heard counsel for the parties. Assailing the order of termination of the petitioner dated 07.02.2003, learned counsel for the petitioner has submitted that not only the impugned order is in violation of the principles of natural justice but is also based on non est and non existent materials. Explaining this aspect, he has further submitted that the original documents relating to the appointment and joining of the petitioner were already submitted by him to his controlling Authority namely the Incharge Medical Officer, who had also transmitted it to the Office of the Civil Surgeon in 2 course of inquiry conducted in the year 1997 and therefore, the successor Civil Surgeon was not justified in directing the petitioner to produce those documents relating to his initial appointment made in the year 1985. He has further submitted that the petitioner was given no opportunity of hearing by the Authorities before passing the impugned order. Counsel for the State on the other hand, in the absence of counter affidavit has only referred to the averments made in the writ application and he has pointed out that it is not in dispute that the petitioner was appointed under the order of the Incharge Medical Officer, who had no such power to make the appointment in any circumstance. He has further explained that the approval of the emergent arrangement made by the Incharge Medical Officer would not mean that the appointment of the petitioner was made by the Civil Surgeon, who was the competent Authority to make such appointment and that too after following the prescribed procedure of appointment in Government service namely, 3 publication of vacancy in the newspaper advertisement and also undergoing the process of selection. He has further submitted that the inquiry relating to large scale of illegal appointment was already undertaken by the Government and its functionaries at different level as would be evident from some of the letters annexed by the petitioner himself and in this context he has referred to the order of the Civil Surgeon dated 31.07.1997 which would explain that the inquiry was thereafter held at different levels but then in view of the decision taken by the Chief Secretary on 09.07.2002, and the consequential order passed by the Health Secretary, the matter relating to such illegal and forged appointment were examined at the district level by the respective Civil Surgeon being the appointing Authority and thereafter individual decisions as with regard to validity of such appointment was gone into in course of which the appointment of the petitioner was found to be wholly illegal and in fact fraudulent. He has therefore, 4 supported the stand taken by the Civil Surgeon in the impugned order and has also explained that once the petitioner admits that he had appeared before the Civil Surgeon on 20.01.2003, it would not lie in his mouth to make the claim that he had never received show cause notice dated 08.01.2003, in which a direction was given to the petitioner to appear before the Civil Surgeon for explaining the illegality of his appointment. In the considered opinion of this Court, the petitioner cannot take advantage of his illegal appointment merely because he had continued in service for a period of 14 years. Admittedly, the appointment of the petitioner was made by an incompetent Authority namely, Incharge Medical Officer who at no point of time had been vested with the power of appointment even on a class-IV post. The so called arrangement made on account of spread of epidemic by the Incharge Medical Officer could have also no justification, inasmuch as, for that purpose he could have also engaged someone on daily wages till the epidemic 5 could have been controlled. The Incharge Medical Officer could not have made a regular appointment in the name of spread of epidemic. Such illegal order of appointment without undergoing the procedure of regular appointment being in the teeth of the mandate of Article 14 and 16 of the Constitution of India and too by the incompetent Authority would confer no right on the petitioner to continue in service. As a matter of fact the petitioner was given adequate opportunity of hearing by the show cause notice dated 08.01.2003. It is infact difficult for this Court to believe that the petitioner had not received the show cause notice dated 08.01.2003, inasmuch as, in the impugned order it has been mentioned that pursuant to the said show cause notice dated 08.01.2003, the petitioner had appeared in person but could not produce his appointment letter or any other document in support of the validity of his appointment. Let it be noted that the petitioner has not denied this aspect in the writ application 6 that the statement made in the impugned order as with regard to his appearance before the Civil Surgeon on 21.01.2003 being incorrect or error of record. Thus, when the content of the show cause notice dated 08.01.2003(Annexure-17) annexed by the petitioner himself is taken into account, it is found that 20.01.2003 was the last date of filing show cause reply as also for appearing in person for explaining the validity of the appointment and as such it becomes clear that the petitioner has also made a false statement in this writ application as with regard to non adherence to the principles of natural justice. This Court must deprecate the growing tendency on the part of the litigants to file false affidavit without knowing the implications that may be dawned on them on account of such misconduct/mal-practice. As a matter of fact, the petitioner’s appointment was cancelled on 07.02.2003 and this writ application was filed on 08.10.2007, which by itself would be good enough to reject the claim of the petitioner on account of inordinate delay 7 in filing of this writ application. It appears that the petitioner after knowing that certain cases of Health Department of illegal termination were disposed of with some favourable result has taken a chance by filing this writ application. Such practice however should not be encouraged by this Court specially when the records relating to an old matter cannot be traced by the respondents. Such delay in filing of the writ application therefore, has to be viewed seriously. The long and short therefore, of the case of the petitioner would be that his appointment was void ab initio inasmuch as, it was made by the incompetent Authority without following the mandate of Article 14 and 16 of the Constitution of India. Such appointment would not clothe the petitioner with any right to continue in service and if therefore, he had continued for a period of 14 years by making some sort of misrepresentation in the ongoing inquiry from the year 1997 to 2003 he cannot draw benefit of such conduct. The very fact that the petitioner had purposely not produced 8 the one line order of the Civil Surgeon allegedly approving his appointment as contained in Annexure-3 before the Civil Surgeon would go to show that the petitioner was never sure about his claim of appointment being ever approved by the Civil Surgeon of the district. That would make the position of the petitioner still worse, inasmuch as, if the appointment of the petitioner was made by Incharge Medical Officer, that too for a very limited period for controlling of the epidemic, such appointment being absolutely adhoc and fortuitous in nature even otherwise would allow the petitioner to claim the benefit of continuance in service. For all these reasons, this Court does not find any merit in the application and the same is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)