IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6088 of 2009 SURENDRA PRASAD SINGH Versus THE STATE OF BIHAR & ORS ----------- 2/ 14/05/2009 Heard learned counsel for the petitioner and learned counsel for the State. A Class-IV employee has been compelled to take up cudgels against the State, seeking to protect his appointment granted to him as far back as 11.3.1989. He appears to be a soft target for the powerful officials of the State, who have kept hounding him notwithstanding orders of this Court in his favour. The petitioner was appointed on 11.3.1989 by the Regional Deputy Director, Health Services, Magadh Division, Gaya. He continued to discharge his duties and was transferred from one office to another. On 16.1.1992 his services were terminated without any opportunity to show cause. Certain persons similarly terminated along with him came to this Court in C.W.J.C. No.1701/92 and analogous cases. It was held that the order of termination was bad for non-compliance of principles of natural justice. The submission of the petitioner is that even he had been terminated in like manner, and thus came to be reinstated by the Civil Surgeon-cum-Chief 2 Medical Officer on 3.1.1997 by annexure-5. The order states that the reinstatement was being made after thorough examination of the appointment order of the petitioner. On 25.3.2003, presumably, when the incumbent on the post of Civil Surgeon changed, circumstances were now conducive for issuance of a fresh show cause notice to the petitioner again. It was now stated that his appointment was forged. That there was no sanctioned post. No advertisement for appointment had been made. The petitioner was not qualified for the post. Reservation procedures were not followed. No objective criteria etc. were formulated before appointment or selection. This show cause notice in a cyclostyled format is at annexure-6 where only the name of the petitioner has been filled in, in the manner of “fill in the blanks”. The petitioner replied to the same when a fresh order of termination by the Civil Surgeon dated 13.8.2003 followed. It states that the issue register does not contain any letter numbered as 38 dated 11.3.1989 by which the petitioner claims his appointment. It then reiterates the grounds mentioned in the show cause notice as above. The petitioner came to this Court challenging the same in C.W.J.C. No.9560/03 which was disposed on 8.9.2003 with C.W.J.C. No.4702/03 3 and analogous cases. An L.P.A. was preferred against the same by the State. L.P.A. No.340/04 which along with L.P.A. No.946/03 and analogous cases was referred by this Court to an Enquiry Committee. The Enquiry Committee now classifies the petitioner as a person appointed by the Regional Deputy Director, Health Services, an officer not competent to do so. Assailing the order of termination learned counsel for the petitioner submits that this Enquiry Committee did not issue notice to the petitioner with an opportunity to defend his appointment. In any view of the matter, the other grounds of alleged illegality mentioned by the respondents earlier have not been found to be justified, when now when the only ground mentioned is of an appointment made by an authority not competent to do so. That clearly classifies the petitioner as an irregular appointee and not as an illegal appointee. That is what precisely the Division Bench directed to be considered for the purpose of regularization considering the long continuance of the petitioner. Learned counsel for the State submits that the petitioner has had adequate opportunity when the Committee has considered his case. The appointment 4 has been found to be not valid and, therefore, the impugned order requires no interference. The petitioner was appointed as far back as 1989. He was terminated in 1992. Certain persons came to this Court. The petitioner did not. Those who came to this Court were ordered to be reinstated with back wages. The Civil Surgeon-cum-Chief Medical Officer by his order dated 3.1.1997 upon proper application of mind reciting in the order that he had examined all aspects of the appointment of the petitioner, granted the same benefit to the petitioner and reinstated him. The fresh show cause notice dated 25.3.2003 again by the Civil Surgeon himself questioning his own earlier order did not deal with the order of reinstatement dated 3.1.1997 holding that the appointment was valid. In C.W.J.C. No.4702/03 and analogous cases this Court at page-11 of the judgement held as follows:- “…… In no case, it is pointed out by learned counsel appearing on behalf of the State that appropriate action has been taken against such authority, who made such appointments and allowed the appointees to continue in services for long. In the given facts and circumstances of the case, the beneficiaries and the authorities, who conferred such benefits, are equally accountable for the irregular and invalid appointments and the appointments, if any, found to be invalid after lapse of a decade, such appointments, in my opinion, should be saved on equitable consideration.” 5 The Division Bench in L.P.A. No.946/03 did not set aside the order of the Writ Court. The order of the Writ Court merged into the order of the Appellate Court. Therefore, the direction of the Writ Court with regard to such persons who appointed persons like the petitioners clearly become the subject-matter of the enquiry to be done by the Committee in pursuance of the orders of the Division Bench. The respondents then have proceeded to act in a partisan manner to protect their own officials. One Civil Surgeon says the appointment is valid, another says that the same is invalid. Either one of them has to be correct and another wrong. In this manner Government funds have been paid to the petitioner. If the petitioner has been paid wrongly by someone why should the Government bear the financial loss. It is certainly the erring official who has to bear the financial loss. This shall be apart from the issue of proceedings against such official either under the service rules, the Indian Penal Code or the Bihar Pension Rules, as the case may be. This is what the writ court has directed which the respondents have chosen to ignore. In any view of the matter, insofar as the enquiry report is concerned, other aspects of the matter are clearly covered by a decision of this Court in 6 C.W.J.C. No.6841/09. For reasons discussed therein also the impugned order at Annexure-10 to the writ application affecting the petitioner is clearly not sustainable. The petitioner stands reinstated, but with liberty to the respondents to proceed strictly in the manner as directed in C.W.J.C. No.6041/09. The writ application stands allowed. KC ( Navin Sinha, J.)