The State Of Bihar vs Kirti Narayan Prasad

2. In the other connected matters, the Division Bench of the Patna High Court has allowed the LPAs and the writ petitions filed by the petitioners therein have been dismissed holding their appointment as non est and void ab initio.

4. The facts of the cases in brief are as under:

5. The writ petitioners had joined the service of State of Bihar under the orders made by the concerned Civil Surgeon-cum-Chief Medical Officer of the district. None of the writ petitioners was appointed through a proper legal recruitment process. They were posted in Class III or Class IV service in a primary health centre within the 6 jurisdiction of the civil surgeon. The State Government having realised the large scale irregularities committed in the appointment by the concerned Civil Surgeon-cum-Chief Medical Officer, scrutinized all the appointments. The State Government having found that large number of appointments were made on the basis of false or forged documents, without following due process of recruitment and mostly without the appointment orders, cancelled such appointments and the concerned incumbents were discharged from service. Those orders of discharge were challenged before the Patna High Court. The High Court by a common judgment and order set aside the impugned orders of discharge from service solely on the ground of violation of the principles of natural justice. All the writ petitioners were directed to be reinstated in service without the salary or remuneration for the interregnum period.

7. Pursuant to the aforesaid directions, the State Government constituted a committee comprising of five officers (for short 'State Committee') to examine the facts of individual cases. However, two members of the said committee did not participate in the proceedings for the reasons best known to them. So, it precipitated into committee of three members which carried out the aforesaid directions and submitted its report. The said committee issued show cause notice to each individual, considered the facts in each individual case and classified the said employees in three categories mentioned hereinbelow:

8. About 91 cases which were classified as irregular appointments were eventually ordered to be regularised keeping in view the direction in Umadevi (supra). Rest of the appointments being void ab initio, were cancelled and the services of the concerned employees were terminated. The writ petitioners again challenged the order of termination before the High Court. Some of the writ petitions were allowed. Against such orders the State Government approached the Division Bench by filing a group of Letter Patent Appeals. The Division Bench by a common judgment and order, with the consensus of the learned advocates for the parties, referred the matter with detailed directions to a Committee comprising Justice Uday Sinha (retired). These matters have been dealt with by Justice Uday Sinha (retired). He has made report in each case placed before him. Those matters are not the subject-matter of this group of appeals. Writ petitions were filed by a group of appointees challenging the report of the State Committee before the High Court. A learned Single Judge of the High Court allowed the said writ petitions. The respective orders made by the learned Single Judge were challenged by filing LPAs before the Division Bench. The Division Bench allowed some of the appeals. In some cases, the Division Bench directed the State Government for regularisation in service of the writ petitioners. These orders are under challenge in the instant appeals.

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17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise. 16

18. Therefore, the Civil Appeals filed by the writ petitioners in the aforesaid batch of appeals are hereby dismissed. The Civil Appeals filed by the State of Bihar are allowed and the writ petitions filed before the High Court of Patna in the said cases are hereby dismissed. There shall be no order as to costs.

November 30, 2018.