IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5631 of 2008 ASPUJAN SINGH Versus THE STATE OF BIHAR & ORS With CWJC No.5651 of 2008 RAMASHISH SAH Versus THE STATE OF BIHAR & ORS With CWJC No.5799 of 2008 SANJAY KUMAR Versus THE STATE OF BIHAR & ORS With CWJC No.5976 of 2008 RAM CHANDRA SINGH Versus THE STATE OF BIHAR & ORS. With CWJC No.5796 of 2008 ASHOK KUMAR Versus THE STATE OF BIHAR & ORS With CWJC No.5929 of 2008 KRISHNA KUMAR BHARGAV Versus THE STATE OF BIHAR & ORS With CWJC No. 6270 of 2008 NARENDRA LAL DEO Versus THE STATE OF BIHAR & ORS. With CWJC No. 6234 of 2008 RAM ISHWAR SAH Versus THE STATE OF BIHAR & ORS. With CWJC No. 6832 of 2008 ANIL KUMAR VERSUS THE STATE OF BIHAR & ORS. ------------ 2 For The Petitioners : Banwari Sharma, Adv. Mr. Shivendra Kishore, Adv. For the State : Mrs. Nivedita Nirvikar, Adv. GP-16 Mr. Shyam Kishore Sharma, GP-5 P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kr. Jha, J. Since all the writ petitions involve same question they have been heard together and are being disposed of by this common order. The petitioners are aggrieved by an order dated 10.9.2007 whereby and whereunder the Directorate of Health in the Health Department in compliance of the order of this Court dated 26.6.2006 in L.P.A. No. 946 of 2003 in the case of State of Bihar Vs. Purendra Sulan Kit reported in 2006(3) PLJR 386 has sought to regularize the services of the 91 persons while denying the same relief to the petitioners. In order to appreciate the aforementioned grievance of the petitioners, it would be necessary for this court to consider the factual background under which these cases have been filed. CWJC No. 5631 of 2008 Aspujan Singh Vs. The State of Bihar & Ors. In this case the petitioner Aspujan Singh claims to 3 have been appointed in the post of Basic Health Worker in view of a direction of the Director, Health Services, Bihar, Patna as contained in letter no. 987(10) dated 23.6.1981 which led to an order of his appointment issued under the pen and signature of Civil Surgeon cum Chief Medical Officer, Singhbhum at Chaibasa vide his office order as contained in memo no. 59 (Kusth) dated 24.7.1981. The petitioner on the strength of his appointment letter dated 24.7.1981 had continued to work on the post of Basic Health Worker and was also paid his salary in the prescribed pay-scale by the State Government. It is the case of the petitioner that the State Establishment Committee at Directorate Level in its meeting held on 28.12.1988 had taken a decision for inter district transfer from Chakari Primary Health Centre (P.H.C.) in Potka block in the Singhbhum district to the office of Civil Surgeon cum Chief Medical Officer, Rohtas which was given effect to by an office order dated 31.12.1988 issued by the Directorate at Health. The petitioner after being relieved from Potka on 12.5.1989 had joined in the office of the Chief Medical Officer, Rohtas who had thereafter posted him against a sanctioned and vacant post of Basic Health Worker in Shivsagar P.H.C. in the district of Rohtas. It has been asserted by the petitioner that genuineness of aforesaid his order of transfer dated 4 31.12.1988 was also verified and on its being confirmed by the Directorate of Health vide order no. 1323(22) dated 25.10.1989, his payment of salary was released by the office of Civil Surgeon cum Chief Medical Officer, Rohtas vide letter no. 5349 dated 30.11.1989. The petitioner has claimed that in May 1991 his payment of salary was withheld on the ground of some enquiry and he was directed by the In-charge Medical Officer of Shivsagar block in the district of Rohtas to submit documents relating to his original certificate and mark-sheet of matriculation examination as also training certificate of Basic Health Worker, copy of his transfer order from the district of Singhbhum, relieving order from the district of Singhbhum and caste certificate. It is said that the petitioner had complied the said order and had submitted the relevant documents in the office of In- charge, Medical Officer, Primary Health Center, Shivsagar on 13.6.1991 but even then his payment of salary was not resumed in next two years and as such he had filed a writ petition being CWJC No. 10489 of 1995 for payment of his salary which was ultimately disposed of by an order of this Court dated 18.1.1996 directing the respondents to pass final order in the enquiry within a period of one month with a further direction that if the result of the enquiry was in favour of the petitioner, he must be paid 5 his arrear of salary within a period of two months from the date of such order. Whereafter payment of his salary was resumed under the orders of Civil Surgeon, Rohtas dated 20.2.1996. For next seven years, the petitioner continued to work with without any impediments and it is said that only in April 203 he was again served with a show-cause notice issued by the office of Civil Surgeon cum Chief Medical Officer, Rohtas at Sasaram wherein his correctness of his initial appointment was questioned on the ground of a general enquiry undertaken in respect of all appointments on Class-III or Class-IV posts in the Health Department w.e.f. 1.1.1980. In such show cause notice it was alleged that his appointment was made without issuance of any advertisement and as such, he was asked to explain as to why his appointment should not be declared illegal on account of his being appointed without following the prescribed procedure of appointment i.e. advertisement, selection and the government policy of roaster and reservation. The petitioner claims that he had filed his show cause reply on 13.5.2003 stating therein that after completing 22 years of service, the issuance of show-cause notice questioning his initial appointment of the year 1981 was itself bad and in this context, he had also relied on the order of this Court dated 18.1.1996 in 6 CWJC No. 10489/1995 with an added emphasis that once his payment of salary in course of an earlier enquiry pertaining to an allegation of illegal appointment leading to stoppage of payment of salary had already been gone into by the Civil Surgeon of Rohtas district, it was wholly unfair to subject his appointment to further scrutiny on the ground of his being appointed without issuance of an advertisement. The service of the petitioner however was terminated by an order dated 7.6.2003 passed and issued by the Civil Surgeon cum Chief Medical Officer, Rohtas at Sasaram who had merely indicated in the order terminating the services of the petitioner that the reply submitted by the petitioner in response to the show-cause was not satisfactory and his services had been terminated only on the ground that his initial appointment was illegal as it was made without publication of advertisement in newspaper. It is the case of the petitioner that he had assailed the aforementioned order of termination of services dated 7.6.2003 on various grounds in CWJC No. 12977 of 2003 which came to be heard along with a batch of letters patent appeals and writ applications all relating to termination of service of the employees of the Health Department which were disposed of by a common judgment dated 26.6.2006 in the case of Purendra Sulan 7 Kit (supra) directing the respondents to consider the case of all the affected employees including that of the petitioner to examine their cases afresh in the light of law laid down by the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006(4) SCC 1 and its paragraph no.44 of the judgment. The petitioner has stated that pursuant to the order of this Court dated 26.6.2006 in the aforementioned batch of LPAs and writ applications, the Health Department after constituting a committee had sought to regularize the services of 91 candidates in the light of the recommendation of the committee vide an order dated 10.9.2007 but the same relief was sought to be denied to the petitioner because the committee had found the initial appointment letter of the petitioner to be forged inasmuch as the same was not found to have been issued from the concerned office. The petitioner while assailing the aforementioned decision in the present writ application declaring his appointment to be forged has taken a plea that his case was exactly similar as that of Sidheshwar Prasad Singh, holding the post of Basic Health Worker whose services were also terminated earlier in exactly similar manner by the Civil Surgeon cum Chief Medical Officer of Rohtas district with a finding that the appointment of Sidheshwar 8 Prasad Singh was illegal as he had been appointed without issuance of an advertisement in newspaper. The grievance of the petitioner therefore in this writ application is that the consideration and recommendation of the committee constituted by the Health Department pursuant to the order of this Court dated 26.6.2006 in the batch of letters patent appeals and writ applications is both arbitrary and discriminatory inasmuch as the service of Sideshwar Prasad Singh was sought to be regularized among the 91 persons but the petitioner was shown the door on the ground that his appointment letter was forged a finding which is not only patently absurd but also arrived behind his back without even giving any notice and/or opportunity of hearing. CWJC No. 5651 of 2008 Ramashish Sah Vs. The State of Bihar The petitioner Ramashish Sah is said to have been appointed on 29.4.1981 under the order of In-charge Medical Officer, Bagha-(II), West Champaran on the post of Swasthya Sevak (Health Worker) and was posted in the Primary Health Center, Bagha (II) and his such appointment was also approved by the Civil Surgeon cum Chief Medical Officer, West Champaran at Betiah vide his office letter no. 1530 dated 15.10.1982. It has been claimed by the petitioner that he was subsequently 9 transferred from Bagha to Sitamarhi under the order of Regional Deputy Director of Health, Tirhut Division, Muzaffarpur vide memo no. 374 dated 18.4.1983 and accordingly after being relieved, he had reported before the Civil Surgeon cum Chief Medical Officer, Sitamarhi and after continuing in service for long 19 years, his appointment also came under the zone of enquiry on the ground that since he was appointed after the year 1980, the validity of his appointment was to be looked into in the light of the decision taken by the State Government through its Chief Secretary. The petitioner claims that he had been served a show cause notice dated 30.5.2000 issued under the pen and signature of Superintendent of Sadar Hospital, Sitamarhi wherein he was asked to explain as to whether his appointment was made pursuant to any advertisement or on the basis of his name being registered and recommended by the concerned employment exchange, and further as to whether the petitioner had appeared in an interview and if so, the name of appointing authority, his designation and the copy of the appointment letter as well as the order of his transfer from one district to another. The petitioner claims to have filed his show cause reply with all information and records on 6.6.2000 but no action was taken thereafter against the petitioner. 10 However he was subjected to another show cause noticed dated 10.5.2003 issued by the Civil Surgeon cum Chief Medical Officer, Sitamarhi vide his office memo no. 1921 dated 10.5.2003 directing the petitioner to explain as to why his service be not terminated on the ground that his initial appointment on 29.4.1981 had been made by the incompetent authority and that the issuance of the order of his confirmation of appointment by the Civil Surgeon, Betiah vide his order dated 15.10.1982 was also doubtful because the office of Civil Surgeon, Betiah had denied the issuance of such order approving/confirming the appointment of the petitioner. In the said show-cause notice, the appointment of the petitioner was also found to be prima facie illegal because the procedure of advertisement and selection through selection committee was not followed. The petitioner also does not appear to have submitted his show-cause reply to the said notice as also his certificate of educational qualification though the petitioner on his part claims that he had filed his detailed show cause reply on 25.5.2003 justifying his appointment as also confirmation of his appointment. The Civil Surgeon cum Chief Medical Officer, Sitamarhi by an order dated 20.6.2003 had thereafter terminated his service on the ground that the petitioner was appointed on the post 11 of Health Worker by an incompetent authority and as such, the appointment of the petitioner being provisional could at best have continued for a period of three months and as such, his appointment was fit to be cancelled. The petitioner had assailed the aforementioned order of the Civil Surgeon, Sitamarhi terminating his service dated 20.6.2003 by filing a writ application before this Court being CWJC No. 6919 of 2003 which was allowed by this Court by an order dated 25.7.2003 in a batch of writ applications quashing the order of termination of the petitioner as well with certain directions. It has been stated that as against the aforementioned judgment of the learned Single Judge in the writ application of the petitioner CWJC No. 6919 of 2003 along with other batch cases, the State of Bihar had filed a batch of Letters Patent Appeal including an appeal as against the judgment of the petitioner and all such L.P.As. with a batch of writ applications were disposed of by a common judgment dated 26.6.2006 directing the authorities of the Health Department to reconsider the matter in the light of the judgment of Uma Devi (supra) and when the matter was remitted, the State Government having constituted a committee had gone to regularize the services of 91 persons on the recommendation of the committee whereas in the case of the petitioner, he was 12 denied such regularization of service on the ground that the Committee had found his appointment to be forged, a finding which according to the petitioner was around at without giving him any notice and/or opportunity. The petitioner in this regard has compared his case with one Krishna Murari Singh alleging therein that the same committee with regard to same type of alleged irregularity in the appointment of Krishna Murari Singh had recommended for his regularization and the government had also regularized his service by an order dated 10.9.2007 whereas the same benefit was denied to the petitioner and of his service of more than 22 years were nullified by a whimsical decision of the authorities of the Health Department. CWJC No. 5799 of 2008 Sanjay Kumar Vs. The State of Bihar & Ors. The petitioner Sanjay Kumar claims to have been engaged and working in the Health Department on daily wages between 4.9.1984 to 29.8.1984, 15.1.1987 to 22.2.1987, 9.11.1988 to 20.11.1988 and from 25.6.1989 to 20.9.1989 in the Sub-divisional Hospital, Jahanabad under the orders of its Deputy Superintendent. It is said that subsequently he came to be appointed on the post of Male Ward Attendant on 10.5.1990 and his such appointment was ultimately approved and regularized by 13 an order dated 4.4.1991 of the Civil Surgeon cum Chief Medical Officer, Jahanabad. The petitioner who continued to function on the post of Male Ward Attendant with the consequential benefit of payment of salary had been subsequently transferred to Additional Primary Health Center, Turt Telpa and from there he was again transferred after serving there for almost seven years to Primary Health Center, Karpi and subsequently his services were confirmed on the post of Male Ward Attendant by an order dated 28.6.1997. After all this had happened, it appears his initial appointment too was made subject matter of an enquiry and a show-cause notice of Civil Surgeon dated 11.10.2000 alleging his appointment as illegal was issued whereafter he is said to have submitted his show-cause reply on 23.10.2000. The petitioner claims that the genuineness of his appointment was gone into by the office of Divisional Commissioner, Magadh Division, Gaya, who had got it enquired through an Additional Collector, Gaya wherein the said appointment of the petitioner was found to be valid in the report of the Additional Collector dated 17.11.2000. His payment of salary however had remained withheld in view of the order of the Civil Surgeon dated 11.10.2000 and as such, he had moved this Court in CWJC No. 2152 of 2001 which was disposed of by an order dated 1.12.2001 14 directing payment of his salary on verification of his records and on production of documents relating to his appointment and continuation in service. The petitioner is said to have submitted all his documents regarding his appointment on 14.1.2002 whereafter an enquiry to this effect was made by the Civil Surgeon, Jehanabad but service of the petitioner was terminated under the order of Civil Surgeon, Jahanabad dated 27.2.2002 removing him from the post of Male Ward Attendant on the ground that the established norms and procedure for appointment in government service was not followed. The petitioner had thereafter moved this Court assailing the order of his termination dated 27.2.2002 in CWJC No. 9568 of 2003 which came to be disposed of by a common judgment dated 8.9.2003 quashing the order of termination of the service of the petitioner in a batch case, CWJC No. 4702 of 2003 and its analogous cases. In the case of the petitioner also, the State of Bihar had filed LPA being LPA NO. 155 of 2004 which were disposed of by an order dated 26.6.2006 disposing of in all 293 LPAs and 527 writ petitions by a common judgment dated 26.6.2006 remitting the matter back to the authorities of Health Department to re-examine the whole issue in the light of the judgment of Uma Devi (supra). The grievance of the petitioner in this writ 15 application is that when the Health Department pursuant to the order of the Division Bench dated 26.6.2006 had constituted a committee of five officials to scrutinize the cases of such persons, the government had regularized services of 91 persons irregularly appointed persons on the recommendation of the Committee but the petitioner was denied the same relief because the committee had held that the appointment of the petitioner was forged. Such finding according to the petitioner was however recorded without even giving him any notice and/or opportunity of hearing. The petitioner has in this context relied on the earlier order of the Director in Chief dated 4.4.2002 to suggest that the Director in Chief of the Health Services of Government of Bihar finding no illegality in the appointment of the petitioner had directed the Civil Surgeon to reinstate the petitioner back in service but the same was not complied because by this time Dr. Manoranjan Prasad, the then Civil Surgeon, Jahanabad had become the Director-in-Chief who according to the petitioner was earlier instrumental in holding the appointment of the petitioner to be forged. Basically he too has also assailed the decision of the committee declaring his appointment on the post of Ward Attendant to be forged on the same ground as that by others namely that at no point of time the appointment of 16 the petitioner was even alleged be forged by any of the authority of the Health Department. CWJC No. 5976 of 2008 Ram Chandra Singh Vs. The State of Bihar & Ors. The petitioner Ram Chandra Singh was appointed on the post of Family Welfare Worker by an order of the Civil Surgeon, Purnea dated 6.6.1980 and was posted in Primary Health Center, Banmakhi. His services were confirmed by an order dated 19.8.1986 pursuant to the direction of the Joint Secretary of the Health Department of the Government of Bihar dated 30.12.1982 and he was also given time bound promotion by the competent authority who had also transferred him at different places as is clearly recorded in the time to time duly verified entries of his service book. The petitioner for the first time was subjected to a show-cause notice after continuing in service for more than twenty years wherein he was asked to explain as to why his appointment should not be held illegal and when the petitioner had filed his show-cause reply on 16.8.2000, the same appears to have also been accepted inasmuch as the Civil Surgeon, Purnea, thereafter had passed no adverse order against him but all of a sudden on 11.10.2004 his services were terminated under the orders of Civil Surgeon, Purnia in view of the direction of 17 the State Government by a common order in respect of 416 employees wherein the appointment of the petitioner was held to irregular. The petitioner had assailed his aforesaid order of termination in CWJC No. 15250 of 2004 which was heard by the Division Bench with a batch of 293 LPAs preferred against the common judgment of the learned Single Judge quashing such order of termination of similarly situated persons and 593 writ petitions by a common judgment of a Division Bench dated 26.6.2006 which had remitted all of them to the Health Department for considering their regularization in service. It is the case of the petitioner that the five men committee had declared his appointment to be ‘forged’ without giving any show-cause notice and/or opportunity of hearing to him. In this respect, the specific grievance of the petitioner is that on earlier occasion when the batch of LPAs and writ petitions were under consideration before this Court, the Directorate of Health had filed an affidavit in which is appointment was categorized as an ‘irregular’ appointment but even then the five men committee had declared his appointment to be ‘forged’ without giving any notice or affording any opportunity of hearing to him and as such it has been alleged that the five men committee had adopted an arbitrary method of pick and choose in 18 making recommendation for regularizing the services of 91 persons while leaving out the case of the petitioner and similarly situated persons who were also entitled to be given same benefit in the category of irregularly appointed persons. In this context, the petitioner has also cited an example of Hari Narain Yadav, Laboratory Technician alleging discrimination, who according to him was appointed on the post under the order of Superintendent of Sadar Hospital, Purnia though the appointing authority of the said post of Laboratory Technician, a State cadre post, was Director-in-chief. He has thus assailed the recommendation of the five men committee for regularizing the services of Hari Narayan Yadav and its being also accepted by the Government when in his case also, the prescribed procedure of appointment in government service namely advertisement, recommendation of his appointment by a Selection Committee and roaster and reservation policy of the Government was not followed. CWJC No. 5796 of 2008 Ashok Kumar Vs. The State of Bihar & Ors. The petitioner Ashok Kumar was appointed on the post of Clerk under the order of Additional Director of Health Services of the Government of Bihar dated 24.10.1983 on the ground that he was a retrenched 19 employee of Malaria Eradication Scheme and was posted in Primary Health Center, Hanterganj in the district of Hazaribagh. He was subsequently transferred under the order of the Additional Director, Health Services of the Government of Bihar from Hanterganj in the district of Hazaribagh to the control of Civil Surgeon, Katihar for his being posted against the vacant post of Clerk and in view of the aforementioned inter-district transfer, the petitioner on being relieved from Hunterganj block on 19.3.1985 had also submitted his joining report before the Civil Surgeon, Katihar on 19.3.1985 who having accepted his such joining had posted the petitioner on the vacant post of Family Welfare Clerk in Barari in the district of Katihar. The