IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.38 of 2010 In Civil Writ Jurisdiction Case No. 8069 of 2006 ====================================================== 1. Indira Gandhi Institute Of Medical Sciences, Sheikhpura, Patna, Bihar, Through Its Director Sri Arun Kumar 2. Board Of Governors, Indira Gandhi Institute Of Medical Sciences Through Its Director , Sri Arun Kumar Sheikhpura, Patna, Bihar .... .... Appellant/s Versus 1. Ratnesh Kumar Choudhary S/O Shri Sundeshwar Prasad Choudhary R/O A/325,A.G.Colony, North Of Indira Gandhi Institute Of Medical Sciences , P.S.Shastrinagar, Patna,Bihar 2. The State Of Bihar Through Its Chief Secretary, Government Of Bihar, Old Secretariat , Patna 3. The Department Of Health, Government Of Bihar, Through Its Secretary .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr Lalit Kishore, Sr. Advocate Mr. Sunil Kumar Singh, Advocate For the State : Mr Manoj Priyadarshi, SC XVII For the Pvt. Respondent : Mr Basant Kr. Choudhary, Sr. Advocate Mr Pramod Kumar, Advocate ====================================================== 5 01-12-2011 Heard learned counsel for the appellants and learned counsel appearing for respondent no.1, the writ petitioner. 2. This appeal is directed against judgment and order of the learned single Judge dated 4.11.2009 whereby writ petition bearing CWJC No.8069 of 2006 preferred by the respondent no.1 was allowed and the order of termination of service of the writ petitioner dated 9.4.2005, contained in Annexure-9 to the writ petition, was quashed on the basis of findings that the writ Patna High Court LPA No.38 of 2010 (5) dt.01-12-2011 2 petitioner was not given any notice or information as to on what grounds his service was being terminated and besides denial of such opportunity, he was not furnished the required documents to meet the ground of termination which was found established by the Cabinet Vigilance Department which found the appointment illegal. Secondly, the Writ Court found that the writ petitioner was not guilty of any fraud in obtaining appointment on the post of Chest Therapist although he had applied for appointment to the post of Physiotherapist. 3. So far as the first ground is concerned, learned Additional Advocate General appearing for the appellants submitted that Annexures 6 and 7 to the writ petition clearly indicate that by Annexure-6 a show cause notice dated 18.3.2005 was issued to the petitioner as to why in view of inquiry by the Vigilance Department his services be not terminated as the appointment was found to be illegal. By Annexure-7, dated 20.3.2005 the writ petitioner gave a reply and requested for copies of relevant documents. In paragraph 9 of the memo of appeal, the appellants have given full details regarding process adopted for passing the impugned order of termination. It has been categorically stated that when the writ petitioner requested for supply of relevant documents through his petition dated 20.3.2005, Patna High Court LPA No.38 of 2010 (5) dt.01-12-2011 3 he was supplied relevant documents including complaint letter, vigilance inquiry report of five pages but he again demanded several documents. Again he was supplied with all relevant documents consisting of 28 pages and two days time was granted for furnishing explanation vide letter dated 6.4.2005. In paragraph 10, it has further been averred that the writ petitioner gave explanation on 8.4.2005 which was examined and not found satisfactory leading to order of dismissal from service issued on 9.4.2005. From the impugned order dated 9.4.2005, it was shown that the letter disclosed the ground for removal as illegal appointment disclosed by vigilance inquiry. The impugned order also disclosed that the final show cause dated 8.4.2005 was not found satisfactory. 4. The aforesaid facts have not been disputed by the writ petitioner but it has been submitted on his behalf that in fact, there was no illegality in the appointment and in any case he had served on the post for about six years since his appointment in the year 1999 and therefore, he should not have been removed on the ground alleged in the impugned order. 5. The ground of illegality in appointment is based upon the advertisement itself which has been enclosed to the memo of appeal as Annexure-1. Under the advertisement, eligible Patna High Court LPA No.38 of 2010 (5) dt.01-12-2011 4 candidates were required to apply against various posts including post of Physiotherapist at serial 4 and post of Chest Therapist at serial 5. For the post of Physiotherapist, the essential qualification was degree/ diploma in Physiotherapy from a recognized institute whereas for the Chest Therapist it was degree/ diploma in Chest Therapy from recognized institute. On account of interview and selection, another person was appointed on the post of Physiotherapist and although the writ petitioner did not have degree/ diploma in Chest Therapy he was appointed to that post by relaxing the required essential qualification by the committee. The committee took the view that both the posts involve similar duties and, therefore, degree/ diploma in Physisotherapy could be sufficient for appointment to the post of Chest Therapist. 6. In our considered view, the authorities of the Vigilance Department as well as the Institute have subsequently come to a correct finding that such a course of action was not open for the selection committee. If the essential qualification for the post of Chest Therapist was to be lowered down or changed, due advertisement of such change in policy was required to be made so that for the post of Chest Therapist those who had degree/ diploma in Physiotherapy could have filed their applications. This was not done by the concerned authorities at the relevant time. The Patna High Court LPA No.38 of 2010 (5) dt.01-12-2011 5 relaxation in the essential qualification thus benefited only the writ petitioner and none else. In such circumstances, it is not possible to hold that the selection and appointment of the writ petitioner was not illegal. The constitutional mandate of giving similar treatment and opportunity to others was clearly violated. 7. The other plea of the writ petitioner is that he has served for about six years and hence, the order of termination of service will have many adverse effects upon him including limiting his chances to apply for such posts because of advancement in age. The legal position in this regard is now well settled by the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1. The length of service rendered on account of illegal appointment should not be criteria to condone an illegal appointment. 8. We are also of the considered view that in a case of illegal appointment there is no scope to condone such appointment on the plea that no fraud has been alleged against the beneficiary of such appointment. 9. Hence, in our considered view, the Writ Court should not have interfered with the order of termination. The judgment and order under appeal is, therefore, set aside. The writ petition is dismissed. However, it is made clear that in case the Patna High Court LPA No.38 of 2010 (5) dt.01-12-2011 6 authorities advertise the vacant post of Chest Therapist/ Physiotherapist, and if the writ petitioner chooses to apply on account of qualification prescribed for the post, he will be given relaxation of age for the entire duration of his service rendered before termination. 10. The appeal is allowed to the aforesaid extent. No costs. sk (Shiva Kirti Singh, J) (Shivaji Pandey, J)