IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6431 of 2009 RAMAKANT SHARMA Versus THE STATE OF BIHAR & ORS With CWJC No.6422 of 2009 BRAJ NANDAN ROY @ BRIJ NANDAN Versus THE STATE OF BIHAR & ORS ----------- 2. 20.5.2009 Heard learned counsel for the petitioner and the State. It is submitted that the petitioner in C.W.J.C. No. 6431 of 2009 was appointed by the Civil Surgeon-cum-Chief Medical officer, Gaya in a regular pay scale on 20.5.1987 on the post of Ward Attendant. He was then transferred from one place to another in normal course of duties. After making up their minds in pursuance of a purported enquiry that the appointment of the petitioner was illegal, the formality of a show cause notice was fulfilled when the respondents issued notice to the petitioner by requiring to submit his response to the decision already taken by the respondents. No reasons why the respondents questioned the appointment was stated in the show cause notice. The petitioner filed his reply. He also annexed an enquiry report of the Additional Collector, Gaya dated 18.11.2000 that the appointment of the petitioner was legal. Then followed a fresh show cause notice on 22.5.2003 in a cyclostyled form when the name of the petitioner and grounds of alleged illegality were filled in the manner of fill in the blanks. The petitioner replied to the same again. His services were then terminated on 21.6.2003. The petitioner questioned the same in C.W.J.C. No. 7197 of 2003. The order of termination was stayed by this Court on - 2 - 6.8.2003. The petitioner rejoined duties. The writ petition finally came to be disposed on 8.9.2003 along with C.W.J.C. No. 4702 of 2003 and analogous. This was questioned by the respondents in L.P.A. No. 133 of 2003 which was heard and disposed on 26.6.2006 along with L.P.A. No. 946 of 2003 and analogous cases directing the respondents to constitute a committee and to scrutinize the appointments. The report of the committee followed. It classified him as an illegal appointee on the ground that the enquiry committee did not find any documents with regard to him. Learned counsel for the petitioner submits that the petitioner was appointed in 1987. In an enquiry by the Additional Collector in 2000, his appointment has been held to be valid. Years later in 2003 his appointment was terminated which was set aside by this Court. The arbitrariness in the action of the respondents is writ large from the fact that the petitioner had duly submitted replies to the earlier show cause notices and drawn the attention of the respondents to his appointment papers and earlier enquiry report. In C.W.J.C. No. 4702 of 2003 at page 11 of the judgment the Bench of this Court observed 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.” The Division Bench in L.P.A. No. 946 of 2003 did not set aside - 3 - the order of the Bench. The order of the Bench therefore merged into the order of the Division Bench. This Court has considered the effect of the merger of orders in several such matters including the order dated 18.4.2009 in C.W.J.C. No. 4872 of 2009. This Court in its orders with regard to such matters has observed that the respondents were virtually creating an industry of appointment and termination. An officer appoints and goes away. Another officer comes and seeks to reopen the appointment and when he is satisfied he closes it again. The issues are then sought to be reopened by a 3rd officer. In this manner a person who has continued in service for, may be, 16 or more years is kept the democlese sword hanging over his head. The Ward Attendant, a Class IV employee, is a soft target for the powerful officials. Someone in the establishment stands to gain by keeping such matters alive and raking up the issue time and again. Suffice it to say that the Division Bench did not issue any mandamus not to issue individual notices but only to issue a paper notice. All that was contained in the order was an advisory for the respondents to decide. If the respondents for reasons of their own convenience opted for the easy way out and decided not to issue individual notices without any explanation for this conduct, the Court has no hasitation in holding that the petitioner has been condemned unheard. The respondents were required to issue individual notice and give him full opportunity to defend himself. His employment was at stake, in fact, his whole world including that of his family was at stake. The impugned report does not even - 4 - mention the date and the name of the newspaper with regard to the alleged paper notice published. Additionally this Court has already held that since the order of the writ Court had merged in the order of the Appellate Court, the directions of the writ Court with regard to enquiry against those who made the illegal appointment was simultaneously required to be the subject matter of examination by the committee which was examining the petitioner’s appointment. The standard by which the respondents profess to act in terminating the appointment of the petitioner as illegal, is the same standard by which this Court shall hold them to be bound by meeting out equal treatment to those who made such appointments. The respondents cannot be permitted to adopt a partition approach victimizing the petitioner while seeking to protect their own officers. Issues of salary paid to the petitioner from the Government coffers if he was an illegal appointee and recovery of the same from those who appointed him will also arise. The impugned order in its present form both on the issue of natural justice and the partisan approach of the respondents at Annexure- 11 is therefore not sustainable. It is accordingly set aside. The petitioner stands reinstated. Liberty is granted to the respondents, if they so advised to proceed afresh against the petitioner, but this has to be done strictly in the manner as discussed hereinabove. C.W.J.C. No. 6422 of 2009 In this case the petitioner was appointed by the Chief Malaria Officer on 29.3.87 as a Basic Health Worker in a regular pay scale. He - 5 - was transferred from one place to another. His salary was stopped and after verification of the appointment salary was released in the year 1995 itself. He was then issued a show cause notice on 2.8.1999 to give reply and termination followed on 16.11.2002. He came to this Court in C.W.J.C. No. 473 of 2003. While the writ petition was pending, a fresh termination order was issued on 4.3.2003. He questioned the same again in C.W.J.C. No. 4154 of 2003. This was also disposed along with C.W.J.C. No. 4702 of 2003 when in like manner of the Division Bench in L.P.A. No. 946 of 2003 remanded the matter for examination by a committee which classified him as regularized from daily wages but not by the competent authority, and therefore an illegal appointee. The enquiry held by the respondents suffers from the same infirmities as noticed in C.W.J.C. No. 6431 of 2009. The information furnished to the petitioner dated 5.4.2008 under the right to information act confirms that the petitioner was regularized by the orders of the Directorate of Health. The writ application is therefore also, for like reasons as discussed hereinabove disposed of in similar terms setting aside the impugned order of termination of the petitioner with consequential reinstatement and liberty to the respondents to proceed afresh in the manner as directed above. P. Kumar (Navin Sinha, J.)