IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8019 OF 2007 SHANTI DEVI, W/O JAGARNATH PASWAN, R/O MOHALLA RIKABGANJ, P.O. CITY POST OFFICE, NAYA BAZAAR, P.S TATARPUR, LAL KOTHI TOWN AND DISTRICT BHAGALPUR. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 2.THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORSM DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT,PATNA. 3.THE SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, NEW SECRETARIAT,PATNA. 4.THE DIRECTOR IN CHIEF, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, NEW SECRETARIAT,PATNA. 5.THE REGIONAL DEPUTY DIRECTOR, DEPARTMENT OF HEALTH, BHAGALPUR. 6.THE CIVIL SURGEON CUM THE CHIEF MEDICAL OFFICER, BANKA. 7.THE INCHARGE MEDICAL OFFICER, REFERRAL HOSPITAL, BAUNSI, BANKA. 8.THE DIVISIONAL COMMISSIONER, BHAGALPUR. 9.THE DISTRICT ESTABLISHMENT COMMITTEE, BANKA THROUGH ITS CHAIRMAN CUM THE DISTRICT MAGISTRATE, BANKA. 10.THE TREASURY OFFICER, BANKA. ………………………RESPONDENTS. ----------- 02/ 28.09.2011 Heard counsel for the parties. Initially this writ application was filed for the following reliefs:- “I. Issuance of an order, direction or writ in the nature of certiorari quashing letter no. 12 dated 09.01.2007 (Annexure-9) by the respondent no. 5 whereby the respondent no. 6 has inter alia been directed not to make the payment of salary to the recently appointed class-IV employees including the petitioner, appointed during the tenure of the respondent no. 6. (ii) Issuance of an order, 2 direction or writ in the nature of certiorari, quashing memo no. 304 dated 25.01.2007 wbereby the respondent no. 6 has issued direction to the authorities concerned of the department of Health including the respondent no. 7, whereby it has been held that in view of the letter no. 12 dated 09.01.2007 of the respondent no.5, the payment of salary, to the recently appointed class-IV employees under his control, will be made after the stay order as contained in letter no. 12 dated 09.01.2007 is lifted and their appointment is approved. (iii) Issuance of an order, direction or an appropriate declaration that the action of the respondent nos. 5 and 6 in issuing the orders impugned dated 09.01.2007 and 25.01.2007 is highly illegal, arbitrary, malafide, malicious and unsustainable in the eye of law tantamounting to the violation of Article 14,21 and 23 of the Constitution of India. (iv) Issuance of an order, direction or a writ in the nature of mandamus commanding the respondent concerned to ensure the payment of penal interest on the said claim of arrears of salary claim of the petitioner. (v) Issuance of an order, direction or an appropriate declaration that the petitioner has been appointed on the post of “Mahil Kaksha Sevika” by the authority competent, in accordance with law that too, against the sanctioned and vacant post, hence the petitioner, is fully entitled for being extended all the due benefits of a regularly appointed employee including the payment of salary and other admissible allowance. but Mr. Purushottam Kumar Jha, learned 3 counsel for the petitioner at the outset would submit that he has been instructed not to press relief nos. I, II, III and VI and that he would confine his writ petition to relief nos. IV and V quoted above. Mr. Jha, in support of the aforementioned prayer would submit that when the appointment of the petitioner was made by the Civil Surgeon, Banka pursuant to a recommendation made by the Collector of Banka district dated 29.03.2007 and he had also submitted his joining on 30.03.2005, the respondents having reinstated the petitioner back in service vide memo no. 2358 dated 09.11.2006, despite issuance of an earlier order of termination dated 30.01.2006 would be under an obligation to make payment of full salary of the petitioner for the period from 30.03.2005 to 08.11.2006. He has further submitted that the petitioner would be entitled not only for back wages but also for his original seniority on the basis of the panel which came into force w.e.f 30.03.2005. In the considered opinion of this 4 Court, such a prayer of the petitioner made on 10.07.2007 cannot be allowed inasmuch as had accepted the terms and conditions of his appointment in the letter dated 09.11.2006 which for the sake of brevity and clarity is quoted hereinbelow:- dk;kZy;%& vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] ck¡dkA fu;qfDr&i= Kkikad----------------------------------- fnukad ---------------------------------- izsf’kr] lqJh “kkfUr nsoh] ifr Lo0 txjukFk ikloku] xzke & fjdkoxat] iks0& flVh iksLV vkWfQl] u;k cktkj rsrkjiqj yky dksBh] ftyk& HkkxyiqjA fo’k;%& oxZ&4 ds in ij fu;qfDr ds laca/k esaA ftyk lekgj.kky; ckadk }kjk foKkiu la[;k 01@LFkk0] fnukad 19-8-2004 ds vkyksd esa ftyk Lrj ij fufeZr iSuy ds vk/kkj ij ftyk inkf/kdkjh] ckadk ds i=kad 106@LFkk0] ckadk fnukad 17 ekpZ] 2005 }kjk izkIr vuq”kalk lwph ds vkyksd esa v|ksgLrk{kjh ds v/khuLFk dk;kZy;ksa esa fu;qfDr ds fy, oxZ&4 ds fjDr inks ads fo:) vkidh fu;qfDr osrueku 2550&55&9660&60&3200 :i;s esa prqFkZoxhZ; efgyk d{k lsfodk ds in ij vLFkk;h :i ls bl dk;kZy; ds Kkikad 753 fnukad 29-03-05 ls dh xbZ Fkh] ftls rRdkyhu ftyk inkf/kdkjh] ckadk ds i=kad 124@LFkk0] fnukad 31-3-2005 ls vkj{k.k jksLVj dks jn~n djrs gq, fu;qfDr dh dkjZokbZ LFkfxr j[kus dk funs”k v|ksgLrk{kjh dks fn, tkus ds QyLo:i v|ksgLrk{kjh }kjk bl dk;kZy; ds Kkikad 855 fnukad 31-03-06 ls iwoZ fuxZr fu;qfDr i= Kkikad 753 fnukad 29-03-05 dks jn~n dj fn;k x;k FkkA ,e0 ts0 lh0 la[;k 1672@2002 ,oa 1678@2003 rFkk 666@2006 esa ekuuh; mPp U;k;ky; ds vkns”k dk vuqikyu ds fufeRr fnukad 17-8-2006 dks vk;ksftr ftyk LFkkiuk lfefr dh cSBd esa fy, x, fu.kZ;kuqlkj ftyk inkf/kdkjh] ckadk ds }kjk jksLVj iath dks iquthZfor djrs gq, muds i=kad 445@LFkk0 fnukad 01 uoEcj] 2006 ls v|ksgLrk{kjh dks fn, x, funs”k ds vkyksd esa vkidh fu;qfDr osrueku 2550&55&2660&60&3200 :i;s esa prqFkZoxhZ; efgyk d{k lsfodk ds in ij vLFkkbZ :i ls lekgj.kky;] ckadk }kjk izdkf”kr foKkiu la[;k& 01@LFkk0] fnukad 19-8-2004 ds vkyksd esa ftyk Lrj ij fufeZr iSuy ds vk/kkj ij ftyk inkf/kdkjh] ckadk ds i=kad 106@LFkk0] ckadk fnukad 17 ekpZ] 2005 ls iwoZ esa izkIr vuq”kalk lwph ds vkyksd esa v|ksgLrk{kjh ds v/khuLFk dk;kZy;ksa ds fy, oxZ&4 ds fjDr inks ds fo:) dh tkrh gSaA blds vfrfjDr ljdkj }kjk le;&le; ij Lohd`r vU; HkRrk Hkh vuqekU; gksxkA ;ksxnku dh frfFk gh fu;qfDr dh frfFk ekuh tk;sxhA 2- bl dze esa vkidks vkns”k fn;k tkrk gS fd vki i= fuxZr gksus ds 15 fnuksa ds vanj v|ksgLrk{kjh ds dk;kZy; esa viuk ;ksxnku nsaA fu/kkZfjr frfFk ds i”pkr~ vkidk ;ksxnku Lohd`r ugha fd;k tk;sxkA 3- ;g fu;qfDr rRdky fcYdqy gh vLFkk;h gksxh rFkk iSuy fuekZ.k ds le; vkids }kjk lefiZr “kS{kf.kd ;ksX;rk izek.k&i= ,oa dk;kZuqHko izek.k&i=] tkfr izek.k&i= rFkk mez izek.k&i= ds lR;kiu ds mijkar gh vkidh fu;qfDr lEiq"V ekuh tk;sxhA vkidks ;ksxnku dh frfFk ls osru dk Hkqxrku fd;k tk;sxkA lR;kiu ds dze esa ;fn vkids fo:) fdlh izdkj dh =qfV vFkok tkylkth izR;{k@ijks{k :i ls ik;h x;h rks vkidh fu;qfDr fcuk fdlh lwpuk 5 ds jn~n dj nh tk;sxhA 4- mez@mez izek.k&i= ij “kadk @ lansg gksus ij esfMdy cksMZ xfBr dj vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh mez dk izek.k&i= nsaxsA bl izek.k&i= ,oa lefiZr izek.k&i= esa tks vf/kd gksxk] ogh mez lsokiqLr esa vafdr dh tk;sxh rFkk mlh ds vkyksd esa fcgkj lsok lafgrk ds vk/kkj ij lsok fuo`fr ekU; gksxhA 5- ;ksxnku vkosnu ds lkFk vkidks fuEukafdr dkxtkr ewy esa layXu djuk gksxkA ¼d½ “kS{kf.kd ;ksX;rk laca/kh izek.k i=A ¼[k½ mez izek.k&i=A ¼x½ tkfr izek.k i= ¼vkjf{kr dksfV ds fy,½ ¼?k½ vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh }kjk fuxZr LokLF; izek.k&i=A ¼M-½ “kiFk&i=] ftlesa bl vk”k; dk mYys[k gks fd “kS{kf.kd ;ksX;rk ,oa vuqHko] tkfr izek.k&i= lR;kiu esa ;fn fdlh izdkj dh =qfV vFkok tkylkth ik;h tk;sxh rks v|ksgLrk{kjh] fu;qfDr jn~n djus gsrq Lora= gksaxs ,oa Hkfo’; esa bl gsrq mudk dksbZ nkok ekU; ugha gksxkA ¼p½ ngst ugha nsus@ysus laca/kh “kiFk i=A 6- ;g fu;qfDr ,oa fu;qfDr gsrq iSuy dk fuekZ.k ekuuh; mPp U;k;ky; iVuk] ds lh0 MCyw0 ts0 lh0 ,oa ,e0 ts0 lh0 oknks esa nk;j izfr”kiFk&i= ,oa dkj.k i`PNk dh i`’VHkwfe esa ekuuh; mPp U;k;ky; ds le;&le; ij fn, x, fVIi.kh@funs”k ds vuqikyu esa dh tk jgh gSaA vr,o bl fu;qfDr esa pquko vkpkj lafgrk izHkkoh ugha gksxkA ;g fu;qfDr ,oa bl gsrq cuk;k x;k iSuy dk Hkfo’; ekuuh; mPp U;k;ky; ds vafre QSlyk vFkok ljdkj }kjk bl laca/k esa fdlh Hkh funs”k ds QykQy ij fuHkZj djsxk rFkk ml vk/kkj ij lq/kkj@vodze.k@jn~n fd;k tk ldsxk] ftldh dksbZ tokcnsgh ftyk inkf/kdkjh lfgr ftyk ds prqFkZoxhZ; inks ij fu;qfDr dh lfefr ds lkFk v|ksgLrk{kjh dh ugha gksxhA g0@& vlSfud “kY; fpfdRld lg eq[; fpfdRlk] inkf/kdkjh ck¡dk Kkikad 2358@ckadk] fnukad 9-11-06 izfrfyfi%& dks’kkxkj inkf/kdkjh] ckadk@ftyk inkf/kdkjh] ckadk@funs”kd izeq[k] LokLF; lsok,¡] fcgkj iVuk ,oa vk;qDr] Hkkxyiqj izeaMy] Hkkxyiqj dh lsok esa vko”;d dkjZokbZ gsrq lwpukFkZ lefiZrA g0@& vLi’V vlSfud “kY; fpfdRld lg eq[; fpfdRlk] inkf/kdkjh ck¡dk (underlining for emphasis) From the reading of the aforementioned appointment letter and specially its underlined portion it would be absolutely clear that the appointment of the petitioner by the office of the Civil Surgeon vide memo no. 753 dated 29.03.2005 was cancelled on 31.03.2005 and infact no 6 one was allowed to continue in service beyond that date. Thus when this fact becomes clear that the petitioner’s earlier services were already terminated as is also apparent from the termination letter itself annexed by the petitioner as contained in Annexure-3 bearing memo no. 855 dated 31.03.2005, nothing would remain for speculation that the petitioner could no longer be treated to be a working employee. The aforesaid termination letter dated 31.03.2005 in fact had read as follows:- dk;kZy;%& vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] ck¡dkA Kkikad 855 ckadk] fnukad 31-3-05 izsf’kr] lqJh “kkfUr nsoh ifr & Lo0 txjukFk ikloku xzke & fjdkoxat iks0 & flVh iksLV vkWfQl u;k cktkj] Fkkuk & rkrkjiqj yky dksBh] ftyk & HkkxyiqjA fo’k;%& oxZ&4 ds in ij fuxZr fu;qfDr i= dks jn~n djus ds laca/k esaA izlax%& ftyk inkf/kdkjh ckadk ds i=kad 124] fnukad 31-03-2005 mi;qZDr fo’k;d izlkafxd i= }kjk ftyk inkf/kdkjh ckadk ds i=kad 106] fnukad 17-03-2005 }kjk oxZ&4 ds in ij fu;qfDr gsrq vuq”kaflr lwph ds vk/kkj bl dk;kZy; ds Kkikad 753@fnukad 29-03-2005 }kjk vkidks oxZ&4 ds in ij fu;qfDr gsrq fu;qfDr i= fuxZr fd;k x;k gS] dks izlkafxd i= ds }kjk vkj{k.k jksLVj dks jn~n djrs gq, fu;qfDr i= dks jn~n fd;k tkrk gS] Hkfo’k; esa ftyk inkf/kdkjh ckadk }kjk fu;qfDr gsrq vkns”k izkIr gksus ij iqu% fu;qfDr i= fuxZr fd;k tk;xkA g0@& vLi’V vlSfud “kY; fpfdRlg lg& eq[; fpfdRlk inkf/kdkjh] ckadkA Moreover the aforesaid order would by itself go to show that it was in two parts clearly terminating the services of the petitioner with immediate effect and 7 also a stipulation that on further instructions from the Collector of Banka district a fresh appointment letter could be issued. That infact was not the end of the matter and in fact the petitioner had assailed the order dated 31.03.2005, in a writ petition being C.W.J.C No. 8929 of 2005 which was disposed of by a common order dated 26.06.2006, wherein, neither the impugned order was interfered nor any direction was given for the reinstatement and in fact operative portion of the said order reads as follows:- “All the Letters Patent Appeals whether preferred by the State or by affected employees and all the Writ Petitions preferred by the affected employees are hereby disposed of by this common judgment and order with a direction to the authorities of the Health Department, Government of Bihar to reconsider the cases of all the affected employees with a view to find out on the basis of relevant facts and law as settled by the Constitution Bench in the case of Secretary, State of Karnataka vs. Uma Devi (supra) as to which of such affected employees are fit for regularization in terms of that judgment, particularly in terms of paragraph 44 of the judgment. Such exercise should be completed within a period of six months from today. If for any good reason, the time period is required to be extended 8 then the respondent State must file an application for that purpose and seek extension from this Court. Till the process is completed, the State of Bihar and its authorities shall maintain status quo in respect of services of the affected employees as existing on date. The status quo shall get revised by the orders that may be passed by the authorities in respect of affected employees as a result of the exercise to be undertaken by them and their final decision in the light of this judgment and order.” If, therefore, the order of termination of the petitioner was not set aside by this Court and the petitioner had accepted the terms of reappointment, she cannot claim the benefit of reinstatement, inasmuch as, in the service jurisprudence the concept of reinstatement in service and reappointment in service have two different connotation and meanings. In the case of reinstatement in service after setting aside the order of termination, one can definitely claim benefit of past services in the period in which the person could not work on the post on account of the order of termination. As a matter of fact, when the order of termination is set aside or quashed by the Court, it is presumed that such order did not exist. It is only in 9 such cases that the person can claim benefit of the previous service either for the purposes of payment of salary or seniority. In the absence thereof, if the Authority who had terminated a person from service seeks to reappoint a person, the rights of such persons will flow on the basis of the conditions imposed in the order of reappointment. Here in the present case, it was made clear to the petitioner that it was not only her reappointment but her such appointment had to come into force only w.e.f the date of joining pursuant to such order of reappointment dated 09.11.2006. The petitioner did not at that point of time question the aforesaid terms and conditions of such appointment letter and had infact submitted her joining without demur and protest. The petitioner, therefore, having accepted the terms and conditions of her reappointment in the letter dated 09.11.2006 cannot be allowed to make out a new case for reinstatement for the purposes of payment of salary and/seniority. 10 With regard to the submissions of Mr. Jha, this Court must take notice of the circumstances in which the petitioner’s appointment was made from a district panel made by the Collector of Banka district and was cancelled upon direction issued by the Collector of Banka district, the whole issue related to the filling up of the post of class-IV for which the State Government had issued a circular no. 16441 dated 03.12.1980, authorizing the Collector of each of the districts to fill up all the class-IV posts by undertaking a common selection and preparation of panel. It is from this panel that every district head of all the departments were/are supposed to make appointment and therefore, if the person who had constituted the Committee, after noticing that certain anomalies had crept in the order issued had himself stayed such appointment any consequential appointment made by the Civil Surgeon could not have been sustained and infact he was duty bound to cancel them therefore, this Court would find that the order of cancellation of the petitioner dated 11 31.03.2005, was rightly not interfered by this Court in the earlier writ application filed by him. Thus when the petitioner’s earlier writ application filed against the order of termination did not yield any positive result, she cannot be now allowed make out a new case again on the basis of the reappointment letter and to that extent the reliance placed by the petitioner on the letter dated 31.03.2005, as contained in Annexure-4 or the letter of the Collector dated 11.10.2006 as contained in Annexure-5 is wholly misplaced, inasmuch as, they are only intra departmental communication with regard to the validity of the panel on the basis of the roster and reservation. The long and short of the matter therefore is that appointment letter of the petitioner dated 29.03.2005 was cancelled on 31.03.2005 and thereafter she was reappointed afresh again by another appointment letter containing a specific clause that her appointment could count only from the date of acceptance of her joining in terms of the order dated 12 09.11.2006. The petitioner thus is bound by such terms and conditions and cannot claim any benefit of the earlier so called service which could actually never be rendered by her. In that view of the matter, this Court does not find any merit in the application and the same is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)