IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6179 of 2009 ARUN KUMAR SINGH Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: Mr. S.B.K.Mangalam, Advocate For the State : Mr. A Amanullah,SC 17 with Mr. S.Rahman, AC to SC 17 ----- 2. 18.05.2009 Heard learned Counsel for the petitioner and the learned Counsel for the State. The present is yet another case where a person appointed on a Class IV post as far back as 1981 is compelled to take up cudgels against the State when he is classified as an illegal appointee, but the State refuses to look into the conduct of those who made this illegal appointment. The petitioner, a lowly paid employee, is the soft and easy target. This Court has no hesitation in holding that high standards which is sought to be applied to classify an employee as illegal appointee, is the same standard by which the conduct of the State shall be judged where it seeks to protect its own officers who made such illegal appointment. The petitioner was appointed on daily wage as a Health Servant in the year 1981. On 25.11.1982 vide Annexure 1 he was regularised. The order states that he was being regularised against a sanctioned post. On record is another order dated 25.4.1983, referring to directions from the Directorate of Health, Patna vide letter no. 386 (22) Health dated 25.11.1982 to regularised Class IV employees and grant them regular pay scale. A general direction was issued thereafter to scrutinize the illegal appointments when the petitioner was classified as a person who came to be appointed by the Civil Surgeon but 2 2 without recommendation of the appointment committee. A show cause notice was issued to him on 7.4.2001 and his salary stopped. He came to this Court in CWJC No. 5479 of 2001 when the order stopping his salary was set aside and the respondents were directed to allow him to work but liberty was granted to enquire into the matter. Fresh show cause notice then followed on 5.11.1982 questioning his appointment on daily wage and without the recommendation of the appointment committee. It acknowledges that the petitioner came to be regularised in pursuance of direction from Health Directorate but then goes on to state that the letter could not be found in the office. There was no finding in the show notice that no such letter had been issued by Health Directorate. The petitioner replied to the same when in Para 3 of his reply he specifically enclosed letter of the Health Directorate. On10.12.2002 followed his order of termination. It stated that his reply was not satisfactory. That he was appointed on daily wage without previous preparation of a panel. That he was regularised without an advertisement issued. The petitioner questioned the same in CWJC No. 250 of 2003 which came to be disposed along with CWJC No. 4702 of 2003 and analogous cases. This Court differentiating the case of forged appointment issued direction in the following terms noticed at Page 11 of the order:- “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 3 3 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 decades, such appointments, in my option, should be saved on equitable consideration.” The Bench decision was questioned by the State in LPA which was heard along with LPA No. 946 of 2003 The Division Bench then referred the matter to scrutiny by the committee of the respondents which has now classified the petitioner as a person who was regularised from daily wage and therefore not entitled to continuance. Learned Counsel for the petitioner urged that the order of termination dated 10.12.2002 is non speaking in nature. When the petitioner in his reply to the show cause notice stated that he had been regularised in pursuance of directions from the Health Directorate and enclosed a copy of the letter, it shall not suffice for the respondents to state that they did not find the reply satisfactory. No reason has been assigned as to why it was found not satisfactory. Once the petitioner had been regularised and the respondents do not wish to deal with that issue they cannot ignore it and go back to the stage of daily wage appointment and question the same. Once he is regularised, all previous issues becomes redundant. He next submits that the respondents while holding such scrutiny of the appointment did not issue any individual notice to the petitioner and arrived at an ex-parte finding ignoring the earlier materials on record, letter of the Health Directorate and consequent regularisation. The impugned 4 4 order is completely non sustainable as relevant materials have not been taken into consideration. Learned Counsel for the State submits that the Division Bench had observed that the respondents if so advised may issue a public notice. The impugned order itself notices that a public notice had been issued. Some of the petitioners had filed their reply also. There has therefore been no irregularity in the procedure. The salient features appearing to this Court in the present case are of appointment made in 1981 and regularisation done in 1982 on direction from the Health Directorate. A show cause notice was issued to the petitioner when he replies to the same and encloses a copy of the letter of the Health Directorate directing his regularisation. Ignoring that, the respondents by a non reasoned and speaking order only stated that his reply was not satisfactory and chose to go back behind the order of regularisation to question his daily wage appointment. The order of this Court in CWJC No. 4702 of 2003 merged into the order of the Division Bench of the LPA Court. The Division Bench did not set aside the order of the writ Court. It only directed the respondents to reconsider the cases of all the affected employees with a view to find out which of them is fit for regularisation. This Court has no hesitation in holding that once the order of the writ Court merged into the order of the Division Bench the extract from the order of the writ Court noticed above inevitably formed a part of the enquiry to be held by the respondents. The respondents could not be permitted to 5 5 interpret the order of this Court in the way which suits them and ignore the other part of the order. Any such enquiry into the appointment of the petitioner had to take within its ambit the officers who made the appointment. The petitioner was regularised. That is an aspect which the respondents completely ignored. The justification given in the order of termination dated 10.12.2002 to ignore it is that records are not available in their office. When the petitioner produced the records, they refused to look into it. All these factors satisfies the Court that it was not sufficient for the respondents to issue a public notice. In any view of the matter, no details of the public notice are mentioned in the impugned order of the date when it was published. A serious consequence was to ensue upon the petitioner by loss of job. The impugned order does not contain any recitals why the respondents chose to make an omnibus paper publication instead of individual notice. There was no mandamus by the Division Bench for a paper publication. This Court for reasons of the aforesaid infirmity in the procedure of the decision making adopted by the respondents is satisfied that the impugned order in its present form is not sustainable on the grounds of violation of the principles of natural justice, refusal to take into consideration relevant materials and the efforts of the respondents to protect their own officials. The impugned decision of the respondents questioning his regularisation from daily wage in the manner sought to be done 6 6 is not sustainable. It is accordingly set aside. The petitioner stands reinstated. Liberty is however given to the respondents, if they so wish to proceed afresh in the matter strictly in the manner as discussed above, and deal with all issues by reasoned and speaking order. In any such fresh procedure started by the respondents they shall be obliged to proceed strictly in accordance with the directions of the writ Court quoted above with regard to its own officials whether it be under the Service Rules, Penal Code or the Bihar Pension Rules, as the case may be, as an order of this Court in exercise of powers under Article 226 of the Constitution of India. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)