IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1092 of 2011 In Civil Writ Jurisdiction Case No. 4920 of 2007 ====================================================== Madhukant Prasad, son of late Surat Ray @ late Suraj Prasad @ late Surat Prasad, r/o Village Naya Tola, P.S. Nanpur, Dist. Sitamarhi. .... .... Appellant/s Versus 1. The State of Bihar through the Chief Secretary Govt. of Bihar, Patna. 2. The Commissioner cum Secretary, Health Services, Govt. of Bihar, Patna. 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna. 4. The Deputy Director, Health Services, Govt. of Bihar, Patna. 5. The Regional Deputy Director, Health Services, Tirhut Division, Muzaffarpur. 6. The Commissioner, Tirhut Division, Muzaffarpur. 7. The Civil Surgeon cum Chief Medical Officer, Vaishali at Hajipur. 8. The In charge Medical Officer, Additional Primary Health Centre, Mallikapur, District Vaishali at Hajipur. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Suraj Narayan Yadav with Mr. Ajay Kumar, Advocates For the Respondent/s : Mr. Arjun Prasad Singh, A.C. to S.C.-2 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 29-07-2011 This Appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the judgment and order dated 12th May 2011 passed by the learned single Judge in above CWJC No.4920 of 2007. Patna High Court LPA No.1092 of 2011 (2) dt.29-07-2011 2 In a writ petition filed in the year 2007, the appellant claimed that he was wrongfully denied salary from the year 1993 although his service was never terminated. After considering the pleadings on record, the learned single Judge has observed that in absence of any order of appointment, the then Civil Surgeon-cum-Chief Medical Officer, Hazaribagh transferred the appellant to a post of Clerk at Itkhori Block. Thus, the appointment to Class III service was created illegally in favour of the appellant. This illegality having been noticed, since 1993 he has not been allowed to discharge duty nor he has been paid the salary. The learned single Judge has held that in absence of a valid order of appointment, the appellant can not be said to be a civil servant of the State. He was, therefore, not protected by the service rules governing the Government servants. Besides, the cause of action arose in the year 1993, which was challenged in the year 2007 after unexplained delay of 14 years. In view of the aforesaid finding, the learned single Judge has dismissed the writ petition. Therefore, the present Appeal. Learned Advocate Mr. Suraj Narayan Yadav has appeared for the appellant. He has submitted that the enquiry initiated against the appellant has not been concluded as yet and the appellant, therefore, continues in service. He shall have right to challenge the order of termination of service as and when made. We see no substance in the submission made by Mr. Suraj Narayan Yadav. As noted by the learned single Judge, the appellant was never appointed in Government service after Patna High Court LPA No.1092 of 2011 (2) dt.29-07-2011 3 following due process. Obviously, the then Civil Surgeon-cum- Chief Medical Officer created appointment by issuing order of transfer and posting in favour of the appellant. Thus, the appellant is the beneficiary of illegal order made by the then Civil Surgeon- cum-Chief Medical Officer. Moreover, as observed by the learned single Judge, the appeal deserves to be dismissed on the ground of delay and laches also. As to the order of termination we must observe that since the appellant was never appointed in Class III service, a mere order of transfer and posting made by the then Civil Surgeon-cum-Chief Medical Officer did not create a right into the appellant. There is no need of enquiry or formal order of termination of the service of the appellant. Admittedly, the appellant is out of service since 1993. Therefore, the question of his continuance in service does not arise. We find no substance in the submissions of the learned Advocate. Appeal is dismissed in limine. M. Rahman/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)