IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2110 of 1994 Ashok Prasad, son of Shri Pachoo Mahton, residing at Bachelor’s Quarter No.5, Patna Medical College and Hospital, PS Pirbahore, Dist. Patna .. .. Petitioner. Vs. 1. The State of Bihar through Commissioner & Secretary, Dept. of Health & Family Welfare, Govt. of Bihar, Patna. 2. Director-in-Chief, Health Services, Bihar, Patna. 3. Addl. Director, Health Services, Bihar, Patna. 4. Deputy Director, HealthServices, Bihar, Patna. 5. Superintendent of Patna Medical College & Hospital, Patna. 6. Principal, patna Medical College & Hospital, Patna .. .. Respondents. … For the petitioner : Mr. Surendra Pd. Singh, Advocate. For the respondents: Mr. D.Choudhary, J.C. to S.C. III. … 6. 10.11.2008 By this writ petition, the petitioner has challenged the order of termination passed on 16.2.1994 by the Additional Director, Health Services, Bihar, Patna in alleged compliance of an order, dated 24.11.1993 passed in CWJC No. 9105 of 1991. The petitioner had filed a writ petition challenging the decision of the Deputy Director, Health Services, Bihar by which the promotion granted to him to the post of O.T. Assistant had not been given effect to and was kept in abeyance. The said promotion was granted by the Principal of Patna Medical College & Hospital. This court directed that the petitioner should file a representation before the Director-in-chief who would dispose of the same by a reasoned order. Accordingly, the Deputy Director has disposed of the petitioner’s representation holding that he was not entitled for appointment and his appointment was illegal on two grounds, namely, the procedure for appointment was not followed and also that the petitioner did not 2 possess the required qualification to be promoted to the post of O.T. Assistant. At this stage the petitioner has challenged the part of the order by which his appointment has been held to be illegal. It is contended on behalf of the petitioner that the order impugned is completely without application of mind and it has been passed on the presumption that the petitioner was appointed without following the due procedure for appointment, that is, by giving a go- by to the established procedure as laid down by various Government circulars. In fact the petitioner has annexed the copy of the advertisement that was issued on 5.6.1983 for a number of posts and in response to the same the petitioner claims that he had applied and was duly selected and appointed and, therefore, the Deputy Director could not have presumed that no procedure was followed for appointment. It is further submitted that the order of this court passed in CWJC No. 9105 of 1991 was confined to the issue as to whether the petitioner was duly promoted or not, whereas the Deputy Director has examined the procedure for appointment of the petitioner which came as a surprise to the petitioner as this question was never an issue in the writ petition and the petitioner had not filed proper documents in his representation to show that he was duly appointed. This court cannot hold that the Deputy Director could not have looked into the circumstances under which the petitioner was appointed but if he was making an enquiry into such facts, it would 3 have been proper and fair to give the petitioner an opportunity to show before the authorities concerned that his appointment was in accordance with law. Admittedly, this opportunity was never given to the petitioner and the order impugned was issued holding that the petitioner was appointed illegally. From annexure 2 which is declaration of vacancy, annexure 4, the advertisement and the subsequent documents showing that the petitioner faced an interview and thereafter he was issued the appointment letter, it is quite apparent that the petitioner was appointed in pursuance to an advertisement. These facts have not been controverted by the State as no counter affidavit has been filed by the Health Department. In the circumstances this court finds that the order impugned, dated 16.2.1994 contained in Annexure 1 has been passed without considering the facts and without giving an opportunity to the petitioner to effectively show to the authorities that he was duly appointed. In that view of the matter I quash the order contained in Annexure 1. It may be pointed out that at the time when this writ petition was admitted for hearing, there was an order staying the operation of the order, dated 16.2.1994 (Annexure 1) and, therefore, there is no necessity to pass any further consequential order. In the result, this writ petition is allowed. haque (Sheema Ali Khan, J.)