MD.IDRISH v. THE STATE OF BIHAR

Driver. His appointment was confirmed on 12.5.1988. He continued to discharge his duties. He was transferred from one place to another, details whereof are mentioned in the writ application. Just when he settled down in life with his new job, the Respondents nearly 14 years later on 28.12.2002 issued him a notice purporting to hold an enquiry on the legality of his appointment. This show cause notice is at Annexure-5 to the writ application. It appears to be in cyclostyled format containing several questions. The subject described is “enquiry into the legality of the appointment”. The name of the petitioner has simply filled in as is done in case of fill in the blanks. The show cause notice also does not specify which of the grounds of illegality mentioned in the order pertains to the petitioner. This Court makes this observation after going through the items 2 specified in the notice. The petitioner replied when fresh show cause noticed followed on 22.2.2003. This time it was stated that his appointment was made by the Deputy Director, Health Services (Transport), Guljarbagh, Patna, who was not competent to make appointment. The petitioner again replied pointing out that the aforesaid Officer was competent to make the appointment. On 24.5.2003 followed another show cause. It sets out grounds. But did not set out the ground of the appointment made by the Deputy Director (Transport) being without jurisdiction. The petitioner again replied. On 12.6.2003 followed his termination at Annexure-9. It states that the petitioner was appointed by the Deputy Director, Health Services (Transport), Health Services Workshop, Guljarbagh by letter no. 513 dated 10.5.1988. The interview call and the appointment letter were issued by the same authority; that there was difference in the handwriting in signature portion of the two documents and, therefore, it appeared to be forged and fabricated. The Deputy Secretary, Government of Bihar by letter no. 458 (22) dated 11.5.1988 deprived the Deputy Director, Health Services (Transport), Guljarbagh from making appointment on the post of Driver. The petitioner came to this Court in CWJC No. 7731 of 2003. Operation of the impugned order was stayed on 1.9.2003. The writ petition was then tagged with L.P.A. No. 946 of 2003 and analogous cases. The matter was then disposed to be examined by 3 a Committee to be constituted by the Government. Upon examination by the Committee, fresh order of termination has followed on 5.1.2009. This came to be stayed by the Regional Deputy Director on 6.2.2009, when Director-in-Chief, Health Services, Bihar has set aside the order of the Regional Deputy Director on 25.3.2009. Before the court proceeds to consider the respective case of the parties, there are certain striking facts which the court considers necessary to notice. The petitioner was appointed in

1988. He works undisturbed for 12 years. An enquiry was then sought to be held on the legality of the appointment. Prima facie, there may be no objection to this, as an illegal appointment by long continuance does not vest any right. But, this Court is satisfied that on the facts of the present case, and the manner in which the Respondents have proceeded can neither be classified as reasonable or prudent, but can only be classified as arbitrary. To this Court, the question also arises of the violation of the principles of natural justice, non-consideration of their own documents by the Respondents to hold the petitioner to be an invalid appointee. Learned counsel for the petitioner rightly submits from Annexure-10, notification dated 1.6.1966 that the Deputy Director, Health Services (Transport) was competent to make appointment on the post of Driver, which is a Class III post. Likewise, by notification dated 25.7.1987 at Annexure-11 with reference to the notification dated 1.6.1966 it was reiterated that 4 the Deputy Director, Health Services (Transport), Health Services Workshop, Guljarbagh was competent to make appointment on the post of Driver. The impugned order dated 12.6.2003 while refers to another Government notification dated 11.5.1988, it no where specifies as to when the aforesaid notification dated 1.6.1966 reiterated on 25.7.1987 were withdrawn. Learned counsel for the petitioner next points out from the enquiry report at Annexure-15, where the name of the petitioner figures at serial 216 that he has been classified as a person whose appointment was not made by the competent authority. But the impugned order dated 5.1.2009 in pursuance of the aforesaid enquiry report classifies the petitioner as a person with fake and fabricated appointment. The enquiry report itself is contradictory. Learned counsel for the State submits that the matter was examined by the Committee in light of the directions of the Division Bench. The Committee has not found the appointment of the petitioner to be valid. A decision has, therefore, been taken to terminate the services of the petitioner in accordance with the liberty granted by the Division Bench. The fact of the matter is that after the order passed in L.P.A. No. 946 of 2003, it was the appointment of the petitioner, which was under scrutiny. Yet the Respondents thought it proper to hold an ex parte enquiry behind the back of the petitioner to condemn him unheard. No person much less a Court of law can 5 pass an order to hold an enquiry in arbitrary manner without hearing the persons concerned so as to violate the fundamental rights under Article 14 of the Constitution of India. In any event of the matter, the Division Bench did not give any direction to hold an ex parte enquiry. If the Respondents proposed to classify the petitioner as an illegal appointee or a fake appointee, they were required to make available to him the materials on which they sought to rely with an opportunity to defend. This becomes more important in view of the order of this Court in CWJC No. 7731 of 2003, where this Court was, prima facie, satisfied with his claim and had passed interim orders of restrain in his favour against the Respondents. To this Court serious issues arise for consideration. From the documents of the Respondents themselves, it is apparent that the Deputy Director (Transport), Health Services Workshop, Guljarbagh was competent to make appointment. If the power was taken away, on what date it was taken away and did it expressly revoke the notification issued earlier vesting the power in him. Was the petitioner a person appointed by the authority competent to do so or was his appointment fake and fabricated. Was the petitioner given an opportunity to meet all those materials relied upon by the Respondents? If the petitioner was a fake and fabricated appointee, there was some one who granted him that benefit. Obviously it was for a consideration. Those, who made the appointment, are, 6 therefore, equally guilty. The Respondents cannot single out the petitioner for its discriminatory treatment. There shall have to be equality in treatment to show fairness in action on the part of the Respondents also. The Respondents are, therefore, obliged in any such enquiry to bring within the ambit the Officer who appointed the petitioner, whether it be under the Service Rules, Penal Code or the Bihar Pension Rules. If the petitioner has to go, such an Officer shall also have to see dark days, if he made hay while the Sun shone. To this Court it appears that the Respondents are themselves confused on the issue. The flip flop behaviour on their part is obvious from the fact that the petitioner was terminated on

5.1.2009, the termination stayed on 6.2.2009 and thereafter another Officer vacates the stay on 25.3.2009. The Respondents themselves could not make up their mind with regard to the petitioner. The impugned order dated 5.1.2009 and 25.3.2009 are accordingly set aside in so far as the petitioner is concerned. The petitioner stands reinstated. If the Respondents propose to hold a fresh enquiry, they are not precluded from doing so, but, they shall proceed strictly in accordance with the discussion contained hereinabove. The writ application stands allowed. AKS/ (Navin Sinha, J.)