IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.902 of 2011 In Civil Writ Jurisdiction Case No. 9010 of 2003 With Interlocutory Application No. 3996 of 2011 In Letters Patent Appeal No.902 of 2011 ====================================================== 1. The Bihar State Social Welfare Advisory Board, Patna through its Officer I/C 2. Officer I/C, Bihar State Social Welfare Advisory Board, Patna Having their offices at Barrack No. 9A, Old Secretariat, Patna. .... .... Respondents-Appellants Versus 1. Sushila Kumari, Daughter of Sri Ram Ekbal Rai, Resident of Village- Pararian, P.O.- Burhwal, P.S. Gorari, District- Rohtas. 2. Kumari Prabhawati W/0 Sri Alakh Narain Singh, Resident of Village- Rajadih, P.O. Silai, P.S. Sanjholi, District- Rohtas. 3. Suman Kumari Wife of Sri Arvind Kumar Singh, Resident of Village & P.O. Dhangai, Via- Vikramganj, District- Rohtas. 4. Leelawati Kumari, Wife of Sri Niwas Singh, Resident of Village- Sunder, P.O. & P.S. Dawath, District- Rohtas. …. …. Petitioners/Respondents 5. The State of Bihar. 6. The Commissioner and Secretary, Department of Welfare, Government of Bihar, Patna. .... .... Respondents/Respondents ====================================================== With Letters Patent Appeal No.908 of 2011 IN Civil Writ Jurisdiction Case No. 7405 of 2003 With Interlocutory Application No. 4014 of 2011 Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 2 / 8 2 In Letters Patent Appeal No.908 of 2011 ====================================================== 1. The Bihar State Social Welfare Advisory Board, Patna through its Officer in Charge, Barrack No. 9A, Old Secretariat, Patna-15. 2. The Officer In Charge, Bihar State Social Welfare Advisory Board, Barrack No. 9A, Old Secretariat, Patna. .... .... Respondents-Appellants Versus 1. Sunita Kumari wife of Sri Jainath Rai, Resident of Village Chandralaya, P.O.-Balua Kuwari, P.S. Sadar Hajipur, Distt.-Vaishali. …. …. Petitioner/Respondent 2. The State of Bihar. 3. The Commissioner and Secretary, Social Welfare Department, Government of Bihar, Patna. .... .... Respondents/Respondents ====================================================== With Letters Patent Appeal No.910 of 2011 IN Civil Writ Jurisdiction Case No. 10421 of 2003 With Interlocutory Application No. 4012 of 2011 In Letters Patent Appeal No.910 of 2011 ====================================================== 1. The Bihar State Social Welfare Advisory Board, Patna through its Officer in Charge, Barrack No. 9A, Old Secretariat, Patna-15. 2. The Officer In Charge, Bihar State Social Welfare Advisory Board, Barrack No. 9A, Old Secretariat, Patna. .... .... Respondents-Appellants Versus 1. Chhaya Sinha, w/o Vijay Kumar Sinha, Adv. Resident of Mohalla- Matakhudi Lane, Mahendru, Patna-6, P.S.-Sultanganj, District-Patna. Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 3 / 8 3 2. Ranjana Kumari W/o Shivdeo Prasad, Resident of Etwarpur, P.O.- Kurthaul, District-Patna. …. …. Petitioners/Respondents 3. The State of Bihar. 4. The Commissioner and Secretary, Social Welfare Department, Government of Bihar, Patna. .... .... Respondents/Respondents ====================================================== With Letters Patent Appeal No.915 of 2011 IN Civil Writ Jurisdiction Case No. 14500 of 2002 With Interlocutory Application No. 4005 of 2011 In Letters Patent Appeal No.915 of 2011 ====================================================== 1. The Bihar State Social Welfare Advisory Board, Patna through its Chairperson. 2. The Chairperson, Bihar State Social Welfare Advisory Board, Patna. .... .... Respondents-Appellants Versus 1. Upendra Mahto son of Sri Jamadar Mahto Resident of Village & P.O. Purnehia Kothi, P.S. Ghorasahan, District-East Champaran. …. …. Petitioner/Respondent 2. The State of Bihar. 3. The Commissioner and Secretary, Social Welfare Department, Government of Bihar, Patna. .... .... Respondents/Respondents ====================================================== Appearance : (In All cases) For the Appellants : Mr. Anjani Kumar, Advocate with Mr. Sanjay Kumar, Advocate For the State: : Mr. S.S. Shabbar Hussain, G.P.-4 Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 4 / 8 4 Mr. Tejendra Sinha, A.C. to G.P.-20 Mr. A.N.Jha, A.C. to S.C.-6 For the Rspdts.-Writ Pets.: Mr. Suraj Narayan Yadav, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4. 11.08.2011 This group of Appeals under Clause 10 of the Letters Patent is preferred by the Bihar State Social Welfare Advisory Board and its functionary (hereinafter referred to as ‘the Board’) against the common judgment and order dated 17th September 2010 passed by the learned single Judge insofar as the connected writ petitions are allowed. The matter at dispute is the termination of the service of the writ petitioners, the respondents in the above Appeals, on the ground that their appointment in the Board was illegal. The learned single Judge has held that the Board is an autonomous body governed by its Memorandum of Association and Articles of Association. The State Government has no role in governance of the Board. However, the impugned orders of cancellation of appointment and orders of termination of service were made at the dictate of the State Government. Therefore, the same were not sustainable. In view of the said finding, the learned single Judge has set aside the direction issued by the State Government and the orders of cancellation of appointment and consequent orders of termination of service made on 5th May 2003. The learned single Judge has further directed the Board to hold an enquiry in respect of appointment of the writ petitioners and to pay the arrears of salary till the date the decision is taken afresh or till the closure of Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 5 / 8 5 the concerned scheme under which they were appointed, whichever is earlier. Feeling aggrieved, the Board has preferred the present Appeals. Learned advocate Mr. Anjani Kumar has appeared for the Board. He has submitted that he does not dispute that the Board is an autonomous body registered under the Companies Act; that it is governed by its Memorandum of Association and Articles of Association and; that the State Government has no role in governance of the Board. He also concedes that the State Government has no authority to issue direction to the Board. He has, however, assailed the finding of the learned single Judge that the impugned orders of cancellation of appointment were made by the Chairman of the Board at the dictate of the State Government. He has submitted that the appointment of the writ petitioners was under cloud since inception as the same were made without following due process of law. The State Government, having examined the legality of the appointment of the employees of the Board did, under its communication dated 9th August 2002, issue direction to the Board to cancel the appointment of 53 of its employees as it was made in contravention of the statutory process. Nevertheless, the Chairman of the Board made his own enquiry; issued notice to the concerned employees; gave them opportunity to submit their explanation and of hearing and after scrutinizing each case individually, he personally recorded the finding that the appointment of the concerned employees was made in violation of the due process of law. He, therefore, cancelled their appointment. Consequent to the cancellation of the appointment, the service of the concerned employees were terminated on 5th May 2003. He has, therefore, Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 6 / 8 6 submitted that the orders of the Chairman were required to be examined on their own merits without being impressed by the fact that the State Government had also opined that the appointment of the concerned employees were illegal and were required to be cancelled. Mr. Anjani Kumar has taken us through the record to submit that the disputed appointments were made by the then Chairman of the Board, one Mrs. Hemlata Yadav, after she was removed from the office on 16th February 1993. He admits that her removal from office was challenged by her in C.W.J.C. No. 2269 of 1993. By order dated 21st April 1993 made by this Court, status quo as on that date was ordered to be maintained. He has submitted that indisputably on 21st April 1993 the said Mrs. Hemlata Yadav was not holding the office of the Chairman. She, therefore, cannot be held to have continued as the Chairman of the Board by virtue of the above referred order dated 21st April 1993 made by this Court. However, during the period she was not holding the office of the Chairman of the Board she made the disputed appointments illegally without recourse to the due process. All those appointments were not legal or valid. The Chairman of the Board rightly cancelled the said appointments. Learned single Judge ought to have upheld the impugned orders of cancellation of appointment. He has submitted that the learned single Judge has erred in holding that the impugned orders of cancellation of appointment were made by the Board under the dictate of the State Government. Learned advocate Mr. Suraj Narayan Yadav has appeared for the writ petitioners. He has supported the judgment of the learned single Judge. He has drawn our attention to the order dated 29th April 2000 made by the then Chairman of the Board, Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 7 / 8 7 one Mrs. Sushila Rai pursuant to the order dated 7th February 2000 made by this Court in M.J.C. No.1087 of 1999. He has submitted that the then Chairman of the Board had upheld the appointment of the concerned employees and had held that the said appointments were not illegal. Be that as it may, we are of the opinion that the present Appeals are misconceived. The learned advocates appearing for the parties have agreed that the concerned scheme under which the aforesaid appointments were made has been closed on 31st October 2002. The orders of termination of service had been made on 5th May 2003 i.e. after the closure of the scheme. The learned single Judge has, in no uncertain terms, directed that the arrears of salary be paid till the date of availability of the scheme. The scheme had been closed months before the service of the writ petitioners was terminated. Under the impugned order the learned single Judge has neither directed reinstatement of the writ petitioners in service; nor the Board is directed to pay the past wages after the closure of the scheme/project. In our opinion, the Board is not adversely affected by the impugned order. We are of the opinion that as the writ petitioners are not required to be reinstated in service, there is no need for a fresh enquiry in respect of the legality of their appointment in the Board. Even otherwise, there have been two enquiries, one held by the State Government and another by the then Chairman of the Board. In both the said enquiries the appointment of the writ petitioners was found to be illegal; made without recourse to the lawful process of recruitment and made by the former Chairman without the authority of law. In above view of the matter, we allow these Appeals partially. We hold that the impugned orders of cancellation of Patna High Court LPA No.902 of 2011 (4) dt.11-08-2011 8 / 8 8 appointment were made by the Chairman of the Board after following due process in consonance with the principles of natural justice and were not made at the dictate of the State Government. The direction issued to the Chairperson of the Board, “… … to reconsider the matter in the light of the report referred to in the letter of the Commissioner and Secretary of the department dated 9.8.2002 as also the earlier report dated 29.4.2000 of the Chairperson of the Board,” is set aside. The impugned judgment and order dated 17th September 2010 passed by the learned single Judge in above C.W.J.C. Nos. 9010 of 2003; 7405 of 2003; 10421 of 2003 and C.W.J.C. No. 14500 of 2002 stands modified to the above extent. We presume that the writ petitioners have been paid their salary till the date their services were terminated on 5th May 2003. In the event, the writ petitioners have not been paid their salary till the date of termination of service, the concerned writ petitioner will make a representation to the Board within ten days from today. On receipt of such representation the Board will examine the claim and pay the arrears of salary within six weeks from the date of the receipt of the representation. Interlocutory Applications are disposed of. The parties will bear their own cost. Pawan Kumar/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)