IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10670 of 2007 Nawal Kishore Kumar, son of Sri Laxman Mahto, resident of village Kanhauli Ajra, P.S. Sadar, P.O. Muzaffarpur, District Muzaffarpur … Petitioner Versus 1. The State Of Bihar 2. The Commissioner cum Secretary Department of Health, Govt. of Bihar, Patna 3. The Director Health Services, Govt. of Bihar, Patna 4. The Regional Deputy Director Health Services Tirhut Division, Muzaffarpur 5. The Additional Chief Medical Officer Vaishali at Hajipur 6. The Incharge Medical Officer Primary Health Centre, Vaishali … Respondents ---------------------------------- 2. 20.10.2011 Heard counsel for the parties. In this writ application the petitioner has assailed an order of his termination of service dated 10.6.2005. Learned counsel for the petitioner has submitted that the aforementioned order is based on the order of this Court dated 5.4.2005 in C.W.J.C.No. 265/2000 but a perusal of the said order would go to show that whatever was observed in that writ application filed by the petitioner had actually been with regard to claim of payment of his salary and as such, even if the claim of payment of salary was rejected, that could not have automatically led to termination of service of the petitioner. He has further submitted that the petitioner having been appointed on 23.11.1985 and allowed to continue in service for a period of twenty years should not have been terminated without initiating a proper departmental proceeding. In this case a counter affidavit has been filed wherein the respondents have explained that the initial appointment of the 2 petitioner was itself in teeth of Article 14 of the Constitution of India and its validity was sought to be re-enforced in course of claiming payment of salary. On the basis of such appointment was examined and rejected by this Court by the order dated 5.4.2005 by recording a finding that the appointment of the petitioner was patently illegal. Learned counsel for the State, therefore, has submitted that in view of inter party order of this Court dated 5.4.2005 in C.W.J.C.No. 265/2000 the petitioner cannot be heard to say that his appointment was valid so as to vest him with the right to continue in service. Learned counsel for the petitioner in reply has submitted that the order of this Court dated 5.4.2005 has been explained by the Division Bench in appeal filed by the petitioner wherein it has been recorded that the finding recorded by the learned Single Judge in the order dated 5.4.2005 will not come in the way of the petitioner while challenging the order of termination by way of writ application. In the considered opinion of this Court such rank illegal appointment on unsanctioned posts in the Health Department itself was held to be bad and thus clothing no right to the incumbent by the Apex Court in the case of Ashwini Kumar vs. the State of Bihar, reported in (1997)2 SCC 1, wherein it was held as follows: “18. Now is the time for us to take stock of the situation in the light of our answers to the aforesaid three points. As a logical corollary to these 3 answers the appeals are liable to be dismissed as the decision of the High Court is found to be well sustained. The submission made by the learned counsel for the appellants to sustain services of these appellants on humanitarian grounds cannot be countenanced. When 6000 appointees are found to have been illegally loaded on the State Exchequer by Dr Mallick and when there were only 2250 sanctioned posts, in the absence of clear data as to who were the seniormost and which were the sanctioned posts available at the relevant time against which they could be fitted, it would be impossible to undertake even a jettisoning operation to offload the removable load of excess employees amounting to 3750 by resorting to any judicial surgery. Once the source of their recruitment is found to be tainted all of them have to go by the board. Nor can we say that benefit can be made available only to 1363 appellants before us as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16(1) of the Constitution of India. Everything, therefore, must start on a clean slate. Reliance placed by the learned counsel for the appellants on the doctrine of tempering justice with mercy also cannot be pressed in service on the peculiar facts of these cases as mercy also has to be based on justice. The decision of this Court in the case of H.C. 4 Puttaswamy also can be of no assistance to the appellants on the facts of the present cases as in that case the Chief Justice of the High Court had full financial powers to create any number of vacancies on the establishment of the High Court as required and to fill them up. There was no ceiling on his such powers. Therefore, the initial entry of the appointees could not be said to be unauthorised or vitiated or tainted. The fault that was found was the manner in which after recruitment they were passed on to the establishments of subordinate courts. That exercise remained vitiated. But as the original entries in High Court service were not unauthorised these candidates/employees were permitted to be regularised. Such is not the present case. The initial entry of the employees is itself unauthorised being not against sanctioned vacancies nor was Dr Mallick entrusted with the power of creating vacancies or posts for the schemes under the Tuberculosis Eradication Programme. Consequently the termination of the services of all these appellants cannot be found fault with. Nor any relief as claimed by them of reinstatement with continued service can be made available to them.” (underlining for emphasis) In the considered opinion of this Court thus the right of the petitioner to continue in Government service and also assailing order of termination will depend on the terms and conditions of his service and the manner in which he was appointed in Government service. Though the petitioner had not 5 enclosed the order of his appointment in the writ application but the learned counsel for the petitioner very fairly on being asked to produce such a copy of the order of appointment of the petitioner has produced Memo No. 862 dated 23.11.1985 issued by the Regional Deputy Director of Health, Tirhut Division, Muzaffarpur which reads as follows: ^^dk;kZy; {ks=h; mi funs'kd LokLF; lsok] frjgqr ize.My eqtIQjiqjA Kki la[;k 862 eqtIQjiqj] fnukad 23-11-85 izsf"kr] Jh uoy fd'kksj dqekj xzke&dUgkSyh vejk] iksLV&jeuk] ftyk& eqtIQjiqjA vkidh fu;qfDr vLFkkbZ Vhdkdkj ds in ij osrueku 375&480 ekfld osru 375&00 :i;k rFkk ljdkj }kjk Lohd`r eagxkbZ HkRrk lsok vU; HkRRkksa ds lkFk LFkkbZ Vhdkdkj ;kstukvUrxZr dh tkrh gSA vkidh lsok fcYdqy vLFkkbZ gS rFkk fdlh Hkh le; fcuk iwoZ lwpuk ds lekIr dh tk ldrh gSA vkidks vkns'k fn;k tkrk gS fd vki fdlh lgk;d vlSfud 'kY; fpfdRld ls izkIr LokLF; izek.ki= ds lkFk fnukad 30-11-85 rd v|ksgLrk{kjh ds dk;kZy; esa dk;Z xzg.k djasa vU;Fkk vkidh ;g fu;qfDr jn~n le>h tk,xhA in xzg.k djus ds le; vkidks vLFkkbZ ?kks"k.kk i= ij gLrk{kj djds nsuk gksxkA in xzg.k ds fy, ;k=k HkRrk ns; ugha gksxkA g0@& vLi"V {ks=h; mi funs'kd LokLF; lsok] frjgqr ize.My] eqtIQjiqjA** It would be clear from the reading of the appointment letter itself that the petitioner was appointed without undergoing any process of selection and in fact without issuance of any advertisement. Thus, mandate of Article 14 of the Constitution 6 of India was never followed in temporary appointment of the petitioner in a particular scheme on the post of Vaccinator. The Regional Deputy Director of Health Services (R.D.D.H), Muzaffarpur in fact had bestowed personal favour on the petitioner by way of making his appointment and therefore, where all such similar appointments were made subject matter of scrutiny, the appointment of the petitioner was also examined in view of the direction given by the Health Directorate wherein enquiry in the matter of appointment of the petitioner was under process since 1990 itself. In fact the report of the Deputy Director submitted to the Director-in-Chief of Health Services dated 28.12.1998 will reveal that the petitioner’s appointment was made by the Regional Deputy Director of Health, Muzaffarpur without following the mandate of Articles 14 and 16 of the Constitution of India. It was also discovered that though the appointment of the petitioner was made in the office of the R.D.D.H, Muzaffarpur himself but then he was immediately sought to be transferred to Vaishali District within a month of his appointment by the R.D.D.H. and that his such transfer was made to only accommodate him against the sanctioned post which had become available on the death of one Jai Kishun Bhagat in Patepur Primary Health Centre in the district of Vaishali. The petitioner’s continuation in service, therefore, at Patepur in the district of Vaishali had itself created some sort of serious administrative problem and the Civil Surgeon, Vaishali had also reported this matter, inasmuch as in the service book of 7 the petitioner there was no entry with regard to the date of his appointment. It has to be taken into account that the Govt. of Bihar by order dated 21.2.1985 in terms of eradication of small pox had already abolished the post of Vaccinator and had taken a decision to adjust the working Vaccinators against the other posts and that is how in the detailed enquiry it was found that there was no justification for appointment of the petitioner on the post of Vaccinator in an abolished scheme. It thus becomes clear that the petitioner right from inception was only allowed to continue in service in connivance with the Regional Deputy Director of Health, Muzaffarpur against unsanctioned post and that is how his payment of salary could not be made from 1.1.1996 when pursuant to the direction of this Court and follow-up measure taken by the Govt. of Bihar payment of salary of each and every staff was examined by the Treasury Officer in the light of the sanctioned post. For such appointment against unsanctioned posts the Apex Court in the case of Ashwani Kumar had held as follows:- "............. It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions. It appears that Dr. Mallick suffering from wrong notions of power and authority under the said Government Resolution and without bothering to find out whether there were vacancies or not under the Scheme indulged in self- help to recruit as many Class III and Class IV 8 employees as suited him and the result was that he loaded a dead weight of burden of these employees on the State Exchequer by resorting to a completely unauthorized exercise. The State authorities were justified in refusing to release salaries for paying this unauthorized army of staff which represented a host of unwelcome guests. They were all persona non grata and were not employees in the real sense of the term. It must therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facie illegal. As they were contrary to all recognized recruitment procedures and were highly arbitrary, they were not binding on the State of Bihar." As noted above, there was no sanctioned post available for the petitioner and therefore, his payment of salary was also stopped from 1.1.1996. In that view of the matter, the petitioner infact had approached this Court for a direction for payment of salary in C.W.J.C.No. 265/2000 and had specifically referred to the same enquiry report dated 21.12.1998 as has been now also sought to be relied and pressed by the learned counsel for the petitioner. This Court in the order dated 5.4.2005 in C.W.J.C. No. 265 of 2000 on appreciation of all the materials relating to appointment and continuation of the petitioner in service had held as follows:- “A perusal of the enquiry report dated 28.12.1998 shows that the Enquiry Officer has found that the lawful procedure of appointment was not followed by the Regional Deputy Director but for this the said 9 Officer should be held responsible and not the petitioner. The enquiry report further highlights that sufficient delay was caused in holding the enquiry for which the petitioner cannot be held responsible and now he has crossed the age for joining Government service. The averments in the writ petition and the finding in the enquiry report disclose that the petitioner was appointed temporarily on the post of Vaccinator on 23.11.1985 without there being any invitation for applying against such vacancy and as a result claim of other eligible candidates were not considered. This clearly violated Article 14 and 16 of the Constitution of India. Another important circumstance against the petitioner is the averment in the counter affidavit that the post of Vaccinator was no longer required to be filled up because small pox had been eradicated and Joint Secretary Health Department had earlier issued a letter dated 21.2.1985 directing concerned officials for adjustment of employees under National Pox Eradication Programme on different posts of Health Department. As a result Vaccinator were adjusted as Superior Field Worker, Field Worker In-Charge and Surveillance worker. In such circumstances, the action of the appointing authority in appointing the petitioner on 23.11.1985 as a Vaccinator is patently illegal. In view of the aforesaid facts and circumstances this Court finds no right the petitioner to claim salary since 20.12.1996 because it has been found that his appointment is against Articles 14 and 16 of the Constitution of India and totally against the rules governing appointment. 10 This Court is of the view that concerned superior officials of the Department shall take notice of wrong action of the then Regional Deputy Director of Health Services, Tirhut Division Muzaffarpur and take suitable action against him in accordance with law.” The finding recorded by this Court, therefore, on perusal of same enquiry report dated 21.12.1998 which has now been pressed by the learned counsel for the petitioner to justify his appointment and continuation will have the same answer, inasmuch as it has been found by this Court in the aforesaid inter parte order dated 5.4.2005 in C.W.J.C. No. 265/2000 that the appointment of the petitioner was bestowed by way of personal favour by the Regional Deputy Director, Health, Muzaffarpur against whom this Court had also directed for taking appropriate disciplinary action. In view of above the following observation of the Division Bench in the order dated 9.10.2006 in L.P.A.No. 872/2005 arising out of the order dated 5.4.2005 in C.W.J.C.No. 265/2000: “Keeping in view these aspects of the matter, we dispose of this Letter Patent Appeal with an observation that the finding recorded by the learned Single Judge of this Court touching the merit of the case that appointment of the appellant is in violation of Articles 14 and 16 of the Constitution, will in no way come in the way of the appellant while challenging the order of termination by way of a writ application.” 11 will in no way change the scenario as with regard to apparent illegality in the appointment of the petitioner and its consequential termination by the impugned order. The petitioner in fact even while assailing the impugned order has nowhere been able to make out a case that his appointment was made by observing the mandate of Articles 14 and 16 of the Constitution of India and in fact his effort to suppress the order of his appointment has ultimately been also of no avail, inasmuch as counsel for the petitioner has produced the order of appointment which would go to show that a rank illegal appointment of the petitioner was made without following the mandate of Articles 14 and 16 of the Constitution of India. Such an illegal appointment in fact confers no right to the petitioner to continue in service especially when the post of Vaccinator had already been abolished much before appointment of the petitioner and that the working Vaccinators were also supposed to be absorbed against the other posts. In absence of a vacant sanctioned post the action of the R.D.D. of Health first to appoint him in his own office where there was no post of Vaccinator and again to transfer him within a month to a post whose holder had died in harness was itself an illegal act, inasmuch as after 21.2.1985 when the Scheme was itself abolished, if any Vaccinator had died there was no question of any appointment to be made on such post. It thus becomes clear that the petitioner’s appointment itself was made against unsanctioned post and that is how his payment of 12 salary also got stopped from the year 1996. In such a situation the petitioner cannot claim benefit of long continuation in service when in his appointment neither the mandate of Articles 14 and 16 of the Constitution of India was followed nor even there was a sanctioned post available for his continuation in service at any point of time. Explaining this aspect the Apex Court in Ashwani Kumar's case (supra had held as follows:- ".............. However, there would never arise any occasion for regularizing the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularizing such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularization and whatever purported regularization was effected in their favour remained an exercise in futility..............." Judged in this background when one goes to the reasons given in the impugned order it will only lead to applying the reasonings recorded by this Court while rejecting the prayer of the petitioner for grant of salary, inasmuch as this Court had held that the appointment of the petitioner was made without following 13 the mandate of Articles 14 and 16 of the Constitution of India and that such appointment did not confer him the right to claim payment of salary especially when there was no sanctioned post available as noted in the enquiry made by the Deputy Director of Health and his consequential enquiry report dated 28.12.1998. This Court, therefore, also does not find any error in the impugned order terminating the service of the petitioner. The submission of the learned counsel for the petitioner that there should have been regular departmental proceeding and that he should have been subjected to a memo of charge followed by report of the Enquiry Officer and leading of evidence by both the parties is also a submission of desperation. The rank illegal appointment in the manner in which the petitioner was appointed never allowed him to become a holder of civil post so as to avail the benefit of Article 311 of the Constitution. As noted above, his appointment was made in a temporary scheme and temporary manner and in fact as things later revealed against non-existent and unsanctioned post. Such person would need no protection under Article 311 of the Constitution of India. Reference in this connection may be made to the judgment of the Apex Court in the case of State of Bihar vs. Upendra Narain Singh & ors., reported in (2009)5 SCC 65. That being so, this application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/