IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8869 of 2008 PAWAN KUMAR MANDAL, S/O SHIV LOCHAN MANDAL, R/O VILLAGE-SHANKER LOHAR, P.S.-BAHARI, DISTRICT-DARBHANGA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE DIRECTOR IN CHIEF, HEALTH SERVICES, BIHAR, PATNA. 2. THE COMMISSIONER-CUM-SECRETARY, HEALTH SERVICES, BIHAR, PATNA. 3. THE DEPUTY DIRECTOR, HEALTH SERVICES, BIHAR, PATNA. 4. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, DARBHNAGA. 5. THE INCHARGE, MEDICAL OFFICER PRIMARY HEALTH CENTRE HAYAGHAT. …………RESPONDENTS. ----------- 2 05.08.2011 From Annexure-C to the counter affidavit it appears that earlier validity of the appointment of the petitioner was considered by the respondent Civil Surgeon and he found that his appointment was forged. Accordingly, by order contained in memo no. 3511 dated 09.12.2003, his services were terminated with immediate effect. Against the said order, petitioner moved this Court in CWJC No.651 of 2004. The said writ application was heard by a Division Bench along with several other cases. The Division Bench found that the cases of all the writ petitioners were required to be re-considered in terms of the law laid down by the Constitution Bench in the case of Secretary, State of Karnataka Vs. Uma Devi (3) [2006 (2) 2 PLJR (SC) 363] and in view of the directions contained in paragraph 44 therein. Accordingly, all the matters were disposed of by order dated 26.06.2006 and the respondents were directed to constitute a High Level Committee of five members to examine the individual cases in the light of mandate of the Constitution Bench. Accordingly, the cases were considered, and vide report submitted by the Committee dated 04.08.2008 (Annexure-A), the cases of many of the writ petitioners were found to be illegal, whereas the cases of some of the incumbents were found to be irregular. Petitioner filed this writ application with a prayer for a direction to the respondents to regularize his services and for other consequential reliefs. When the said report was produced in this case with the counter affidavit, petitioner filed an I.A. No.6605 of 2009 annexing a copy of the chart prepared by the Committee along with the report, with a prayer to grant liberty to challenge the same also. The I.A. is allowed. Petitioner is granted liberty to challenge the said 3 findings of the Committee, as contained in Annexure-6 with the I.A. The contention of learned counsel for the petitioner is that before considering the cases of the individual employees the Committee did not give notice to the petitioner and other concerned persons for individual hearing and examination of their cases in the light of the judgment of the Constitution Bench. It is submitted that the Committee relied upon only the reports received from the concerned departments and offices where the incumbents were working and only on the basis of those reports they found the services of individual employees as illegal or irregular. It is submitted that the petitioner was also not given any opportunity to dispute that report of the department/office where petitioner was working was not factually correct and in fact the case of the petitioner did not fall in the category of illegal rather it fell in the category of irregular, so as to make him entitle for his regularization. It is also submitted that the report of 5 members Committee was actually signed by only three 4 members and two members were not present in the Committee and did not agree with the report. Learned counsel for the petitioner has further submitted that the said report in respect of other persons have been quashed by the different Benches of this Court finding the same as not in accordance with the directions of the Constitution Bench. Against the said orders of learned Single Judge, the respondents moved in appeal and their appeals have also been dismissed. Some of the orders passed by the Division Bench, as relied upon by learned counsel for the petitioner, are dated 29.06.2011 (LPA No.705 of 2010); dated 29.06.2011 (LPA No.604 of 2010) and dated 29.03.2011 (LPA No.230 of 2011). He also submits that since the Division Bench had referred the matter to the High Level Committee of five members, the Committee ought to have considered the cases of the individual writ petitioners separately within the parameters laid down in the Constitution Bench judgment. In the counter affidavit, it is asserted that as per the directions of the 5 Division Bench the case of the petitioner was considered along with others, and found illegal by the Committee. However, it is not denied that the individual notices to the concerned employees were not given by the Committee and the individual cases were not separately considered. The directions of the Constitution Bench in paragraph 44 of the judgment are very clear. The Constitution Bench has directed all the employers, i.e. State and its instrumentalities or statutory authorities, to consider the individual cases of the employees, as one time measure, and clearly come to a finding, on facts of individual cases, that the appointment of the concerned employees was either illegal or irregular. If the employers, on facts of individual cases, found that the appointment irregular and that the employee had continued in employment for more than 10 years as on the date of Constitution Bench judgment, i.e. 10.04.2006, they were legally obliged to regularize the service of the concerned employee. However, if the findings were otherwise, their services were to be 6 terminated. This position has also been clarified on a subsequent judgment of the Apex Court in the case of Secretary, State of Karnataka Vs. M.L.Kesari [(2010) 9 SCC 247]. Thus, it is clear that the cases of each employee had to be considered separately in the facts of his own case. Hence, the initial appointment of the employee and his continuance in service and whether his services had earlier been regularized formally or not, had to be examined separately and individually. In this process, obviously Principles of Natural Justice had to be followed and the employee had to be noticed and had to be given an opportunity to meet the objections of the concerned department with regard to validity of their appointment. Clearly, this has not been done by the Committee. It appears from the report of the Committee that the employees were categorized and considered in bunch on the basis of the report received from the respective departments. This clearly shows that they were not separately noticed and allowed to meet the objections of the department in their respect. 7 In the circumstances, this Court is of the view that the case of the petitioner deserves to be considered afresh for his regularization after due opportunity to him to present his defence in support of validity of his appointment. This has to be done strictly within the parameters laid down by the Constitution Bench in paragraph 44 of the judgment and subsequent judgment of the Apex Court in the case of M.L.Kesari (supra). In the circumstances, the writ application is allowed. The report of the Committee, as contained in Annexure-6 so far as it concerns the petitioner, is quashed to the extent that the petitioner will be given a notice and opportunity to be heard by his controlling officer/appointing authority within four weeks from the date of receipt/production of a copy of this order. If petitioner presents himself before the controlling officer/appointing authority and presents materials for consideration in respect of his case, his controlling officer/appointing authority shall consider the same and pass a reasoned order in respect of his appointment and continuance strictly 8 within the parameters laid down in the said paragraph 44 of the Constitution Bench judgment read with the judgment of the Apex Court in the case of M.L.Kesari (supra). The exercise must be completed within three months from the date of receipt/production of a copy of this order. However, during these three months petitioner will not be entitled for his salary nor will be entitled to join his duties. Arvind/ ( J.N. Singh, J.)