IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.474 of 2009 1. SUBHASH PRASAD, SON OF SRI AMBIKA PRASAD, RESIDENT OF VILL – GHAT BANDHWARA, P.S. + DISTRICT – GOPALGANJ 2. WAKIL RAM, SON OF LATE NANDU RAM, RESIDENT OF VILLAGE – ANANT MIRJAPUR, P.O. + P.S. – DIGHWARA, DISTRICT – CHAPRA. ……………… PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, BIHAR, PATNA 3. THE SECRETARY-CUM-COMMISSIONER, HEALTH MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA 4. THE DIRECTOR IN CHIEF, HEALTH SERVICES, BIHAR, PATNA 5. THE REGIONAL DEPUTY DIRECTOR, HEALTH SERVICES, SARAN DIVISION, CHAPRA 6. THE DISTRICT MAGISTRATE, GOPALGANJ, DISTT- GOPALGANJ 7. THE CIVIL SURGEON-CHIEF MEDICAL OFFICER, GOPALGANJ, DISTRICT- GOPALGANJ 8. THE INCHARGE MEDICAL OFFICER, BIJAIPUR, DISTRICT – GOPALGANJ. ………………. RESPONDENTS ----------- For the Petitioner: Mr. Rajendra Prasad Singh, Sr. Adv. For the State: Mr. Shivam Singh, AC to AAG-1 ***** 03. 05.07.2011 Heard learned Counsel for the petitioner and the State. Petitioners have finally been terminated from their Class – IV service, vide Annexure – 1 series, vide letter, dated 07.11.2008, issued by the Civil Surgeon, Gopalganj in the light of decision of Five-Men High Power Committee, constituted under the Chairmanship of Director-in-Chief, Health Services, Patna. This Committee has been constituted in the light of the direction of the High Court, issued in L.P.A. No. 946 of 2 2003 and analogous cases. Both the petitioners were initially appointed as Daily-Wagers under the Orders of the Civil Surgeon, Gopalganj against the sanctioned post. They were appointed in the year, 2005 vide order, contained in Annexure – 2, dated 14.09.1985. Subsequently, they were adjusted against the sanctioned vacant post of Class – IV employee, vide order contained in Memo No. 353, dated 07.03.1989. Petitioners thereafter were confirmed against that post vide order, dated 12.01.1998. For the first time, questions were raised regarding legality of their appointment in the year 2001 and vide order, dated 27.04.2001, they were restrained from discharging their duties and payments of their salary were also stopped. This order was challenged by the petitioner by filing C.W.J.C. No. 8155 of 2001, which was allowed and both the petitioners were reinstated on their post. Again on 31.12.2002, another order was passed, questioning the legality of petitioners’ appointment. Show-cause notice was issued and before petitioners’ show-cause could have been considered, they were terminated from their service. This order was challenged by the petitioners by filing C.W.J.C. No. 3394 of 2003. Stay order was passed in favour of petitioners and in the light of the Stay 3 Order, they were allowed to continue on their post. This Writ Application was also allowed. Petitioners continued on their post. Against the Order passed in C.W.J.C. No. 3394 of 2003, L.P.A. No. 1086 of 2003 was preferred by the State, which was heard analogous with L.P.A. No. 946 of 2003 and finally a direction was issued to the Respondents for considering cases of each employee individually by constituting Five-Men Committee. Counsel for the petitioners submits that in this very judgment direction was also issued that status-quo shall be maintained by the Respondents, till any final decision is taken by the Five-Men Committee. Since the petitioners were working, as such they continued on their post, till the termination order, contained in Annexure – 1 series, was issued. Petitioners’ grievance is that Five-Men Committee submitted its report without giving any opportunity of hearing to the petitioners. Petitioner No. 2 was never noticed. So far petitioner no. 1 is concerned, a notice was issued to him for his appearance before the Committee on 30.06.2008, but this notice was served on the petitioner no. 1 on 02.07.2008, as such he did not have any opportunity to appear before the Committee. Since none of the petitioners appeared before the 4 Committee, it can be presumed that the documents, relating to their appointment, continuation in service, confirmation and all relevant materials, which could have had any impact on the report, submitted by the Five- Men Committee, were considered, in absence of petitioners. Five-Men Committee submitted its report, but the petitioners had no opportunity to look into this report. They came to know about this report when termination letter was issued by the Civil Surgeon, Gopalganj, in the light of the report, submitted by the Five-Men Committee, petitioners came to know that their appointment has been put into category of forged appointment Counsel for the petitioners submits that right from beginning at no point of time, petitioners’ appointment was considered to be a fake / forge appointment. At each point of time, it was considered to be an irregular appointment. Now, by Annexure – 1 series, they have been terminated on the ground that their appointment was a fake appointment. Earlier when petitioners were restrained from discharging their duty this had not been a ground that their appointment is fake / forged. At no point of time, since 2001 till 2008 their appointment was considered to be a fake 5 appointment. Lastly, it is considered as fake appointment, which is an arbitrary act of Respondents. Their appointment has been considered to be fake, simply because they were not given any opportunity of hearing by the Five-Men Committee. Counsel for the petitioners has placed reliance on a decision, reported in 2010 (9) SCC 247 (State of Karnataka Vrs. M. K. Kesari). In this judgment, State of Karnataka Vrs Uma Devi’s case has also been considered in para 7. Specific finding has been made that appointments of an employee, categorized as irregular appointment, should be regularized. It has also been discussed, how appointments should be categorized in three categories, illegal; irregular; and fake/forge. In para 7 of the judgment, following is the finding recorded by the Apex Court: “It is evident from the above that there is an exception to the general principles against “regularization” enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit of protection of the interim order of any court or tribunal. In other word, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. 6 (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not posses the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” In para 3 of the Counter Affidavit, the reason has been shown, due to which the appointment of the petitioners was questioned. The reason is that the State Government noticed that a number of illegal appointments have been made in the Health Department and in order to examine the legality and propriety of such appointments, enquiry was conducted. In para 6 of the Counter Affidavit, there is an admission that petitioners were confirmed on their post. However, it is stated that this confirmation will not give them any immunity. It is correct that simply because an employee has been confirmed on the post, he would not be immune from being questioned about the legality of his appointment. But the case of an employee, who is confirmed on the post and an employee, who is adhoc/temporary, procedure for their termination will be 7 different. In case of a confirmed appointee, he has got right that before he is terminated from his service, full fledged proceeding be initiated. In the case of petitioners, despite consideration of Five-Men Committee as per the direction of the High Court, they were never given any opportunity to explain the legality of their appointment. Their appointments were erroneously categorized as forged appointment, even though no such allegations were made during previous enquiry. Earlier on each occasion their appointments were considered as an irregular appointment. Petitioners were appointed against sanctioned vacant post. They possessed requisite qualification for the post. Continued on their post for more than 15 years, but procedural formalities had not been observed in their appointments. Such appointments can not be categorized as fake or forged appointment, but irregular appointments, which could be regularized. For all these reasons, even if it is presumed that the petitioners’ appointment were irregular as per decisions in case of Uma Devi Vrs. State of Karnakta, petitioners should have been given benefit of regularization on their post, but it was denied to them. Other reason for considering impugned order as an 8 illegal order is, that entire decision had been taken by the Respondent Authorities completely in violation of Rules of Natural Justice. Petitioners, who are continuing on the post from the year 1985, could not have been terminated in such a manner, without following even a procedure, either as provided under the Constitution or as per the direction of High Court in C.W.J.C. No. 3394 of 2003. The Orders, contained in Annexure – 1 series, dated 07.11.2008 whereby the petitioners have been terminated from service, are quashed. This application is allowed. Petitioners are directed to be reinstated with all consequential benefits. With the aforesaid observations / directions, this Writ Application is allowed. SKM (Mridula Mishra, J.)