IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.293 of 2010 Amir Chand Choudhary S/O Late Suraj Choudhary R/O Vill Bangri, P.O. Birahima Bazar, P.S.Baruraj, Distt-Muzaffarpur ……………. Petitioner Versus 1. The State Of Bihar 2. The Secretary Cum Commissioner, Department Of Health Government Of Bihar , Patna 3. The Regional Deputy Director Of Health Services Tirhut Division , Muzaffarpur 4. The Civil Surgeon Cum Chief Medical Officer Muzaffarpur At Muzaffarpur 5. The Incharge Medical Officer, Primary Health Centre Paroo, P.S. Paroo, Distt-Muzaffarpur ……………. Respondents ---------------------------------- 3. 13/12/2011 Petitioner has filed this writ application for quashing of the order contained in Memo No.30(c) dated 3.2.2000 issued by the Incharge Medical Officer, Primary Health Centre, Paroo, Muzaffarpur, as contained in Annexure-9, by which he has been informed that he has been restrained from performing duties and marking his attendance. It appears that against the said order petitioner had filed a writ application in this Court, namely, C.W.J.C.No.3659 of 2000. Similar other matters were also filed in this Court and were disposed of, against which, the State of Bihar moved in appeal before the Division Bench of this Court. The 2 Division Bench in L.P.A.No.946 of 2003 and other analogous cases directed for consideration of matters of individual employees in terms of Constitution Bench Judgment of the Apex Court in the case of State of Karnataka Vs. Uma Devi, reported in 2006(2) PLJR 363 (SC). Case of the petitioner was thereafter considered by the Committee and as per the chart annexed with the I.A. filed by the petitioner in this case, his appointment was held as forged. Learned counsel for the petitioner submits that the cases of the employees were to be considered by the respondents in terms of para 44 of the Constitution Bench Judgment of the Apex Court and an opportunity was required to be given to them and thereafter only their cases could have been rejected if their appointments were found to be illegal. He submits that it was only on the basis of the report of the concerned office that the appointment of the petitioner has been held as forged. Hence, he submits that before accepting the said report, petitioner ought to have been given 3 an opportunity of hearing and specific orders ought to have been passed in terms of the said para 44 of the Constitution bench Judgment. To this extent, learned counsel for the petitioner is correct. The said Para 44 of the Constitution Bench judgment requires that cases of individual employees should be considered in the light of parameters laid down therein and specific orders should be passed. As per the law laid down by the Constitution Bench, if an employee was found to be illegally appointed, his services had to be terminated. However, if an employee was found to be appointed against sanctioned post and his appointment was found only irregular, and not illegal, in terms of the three judgments referred to in the said paragraph, the employee had to be regularized. These two course of action are distinct as laid down in the judgment of the Apex Court itself. The Constitution Bench of the Apex Court has made it clear that the practice of continuing employees on ad hoc basis, temporarily/daily wages or as stop gap arrangement has to be discontinued and 4 all such cases has to be dealt with in the manner indicated in the said para 44 of the Judgment and final orders must be passed. Petitioner also deserves final orders in his case, either way, in terms of para 44 of the judgment of the Constitution Bench. In the circumstances, this writ application is disposed of with a direction to the Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur to take up the exercise of consideration of the case of the petitioner strictly in terms of said para 44 of the Constitution Bench judgment and pass final orders, either way, after giving him due opportunity to be heard. Orders in this regard must be passed keeping in view the parameters laid down in the said para 44 of the judgment of the Constitution Bench, positively within three months from the date of receipt/production of a copy of this order. Since the petitioner’s salary was stopped by Annexure-5 on account of non- production of original appointment letter, certificate of educational qualification etc., this Court is not of the view that 5 during the pendency of the enquiry, petitioner should be allowed to join his service or draw his salary. The same shall be dependent upon final orders passed by the competent authority. However, if the Civil Surgeon does not pass final orders within the time indicated as above, petitioner will be entitled to claim his salary, for which the Civil Surgeon shall be squarely responsible. Pradeep/ ( J. N. Singh,J.)