Letters Patent Appeal No. 166 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.166 of 2013 In Civil Writ Jurisdiction Case No. 9633 of 2009 ====================================================== 1. The State of Bihar through the Principal Secretary, Health Department, Govt. of Bihar, Patna. 2. The Health Commissioner, Health Services, Govt. of Bihar, Patna. 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna. 4. The Chief Malaria Officer, Swasth Bhawan, Govt. of Bihar, Sultanganj, Patna. 5. The Departmental Establishment Committee through Chief Malaria Officer, Swasth Bhawan, Govt. of Bihar, Sultanganj, Patna as its Chairman. 6. The District Magistrate, Darbhanga. 7. The Civil Surgeon-cum-Chief Medical Officer, Darbhanga. 8. The District Malaria Officer, Darbhanga. 9. The In charge Medical Officer, Primary Health Centre, Keoti, Darbhanga. Respondents- Appellants Versus Amar Kumar Sinha S/o Raj Kishore Prasad Srivastava, resident of Mohalla- Laheriasarai, Hospital Road, P.S.-Lahariasarai, District-Darbhanga. Petitioner-Respondent ====================================================== Appearance : For the Appellant/s : Mr. D.K. Sinha, Sr. Adv. Mr. Alok Kr. Rahi, Adv. For the Respondent/s : Mr. Chandramauli Chaurasia, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 16-12-2013 I.A. No. 1056 of 2013 has been filed to condone the delay of one year 336 days in filing the Appeal. Learned counsel for the Appellants submits that the Appeal raises very important questions of law based on settled judicial precedents. Counsel for the respondent opposes the application for condonation submitting that no explanation worth the name has been given in the application for condoning delay. 2
Facts
Patna High Court LPA No.166 of 2013 (6) dt.16-12-2013 2 / 7 We have considered the submissions on behalf of the parties. Considering the questions of law involved, settled judicial precedents in this regard, that the duration of time passed cannot confer validity upon an appointment invalid in law from its inception, satisfies us to condone the delay in general public interest. The present Appeal arises from order dated 12.11.2009 allowing C.W.J.C. No. 9633 of 2009. The learned Single Judge held that the respondent had remained in service for more than 10 years. No notice or enquiry was conducted in compliance with natural justice before declaring his appointment to be illegal or forged. Persons similarly situated had been reinstated. In view of the order in C.W.J.C. No. 6575 of 2009, the enquiry report of the Five Man Committee holding the appointment of the respondent to be illegal was not sustainable.
Legal Reasoning
of this Court in 1991(2) PLJR 568 (Rajni Kant (Dr.) Vs. State of Bihar). Similar view has been taken in (2008)1 SCC 798 (Nagendra Chandra Vs. State of Jharkhand) and (2011)3 SCC 436 (State of Orissa Vs. Mamata Mohanty). The letter of appointment dated 20.12.2013 states that no interview was held and the appointment was not made by a Selection Committee and no merit list had been prepared. The writ petition is silent with regard to the fact of any interview and the members of the Selection Committee and the position of the respondent in the merit list. The writ application also does not mention the number of sanctioned posts and vacancies. The counter affidavit specifically denies that even a Notice Board Advertisement had been published. The law with regard to regularization on basis of continuous service for more than 10 years laid down in Uma Devi (supra), the conditions to be fulfilled for that benefit, the subsequent enunciation in (2010)9 SCC 247 (State of 6 Patna High Court LPA No.166 of 2013 (6) dt.16-12-2013 6 / 7 Karnataka Vs. M.L. Kesari) has all been considered in detail by a Full Bench of this Court in 2013(1) PLJR 964 (Ram Sevak Yadav Vs. State of Bihar) (to which one of us, Navin Sinha, J. was a party) holding as follows at Paragraph-43:- “43. We therefore sum up our conclusions and answer the reference as follows:- (A) Uma Devi (supra) prohibits regularization of daily wage, casual, temporary appointments, the period of service being irrelevant; ad-hoc and (B) An illegal appointment the void ab-initio made contrary mandate of Article 14 without open competitive selection cannot be regularized under any circumstances. to (C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post. eligible others to (D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.” In conclusion, the very entry of the respondent into Government service being by a procedure contrary to law, the question of any omission in the Constitution of a Five Man Enquiry Committee Report or violation of the principles of natural justice by it becomes irrelevant. The principles of natural justice are not a panacea for all ills so as to confer 7 Patna High Court LPA No.166 of 2013 (6) dt.16-12-2013 7 / 7 validity upon an appointment invalid from its inception. The order under Appeal dated 12.11.2009 is therefore set aside.
Arguments
Counsel for the Appellants submitted that the appointment was illegal from the inception. The passage of time was an irrelevant consideration and could not cloak the appointment as lawful. Reliance was placed on (2006)4 SCC 1 (Secretary, State of Karnataka Vs. Uma Devi), (2009)5 SCC 65( State of Bihar Vs. Upendra Narayan Singh) and also 1995(2) PLJR 309 (Lalan Kumar Singh Vs. State of Bihar), the last in support of the proposition that if the appointment was a nullity, the principles of natural justice had no application. 3 Patna High Court LPA No.166 of 2013 (6) dt.16-12-2013 3 / 7 Counsel for the respondent opposing the application submitted that the termination upon challenge was referred to the Five Man Committee. No proper opportunity of defence was given. Similar issues arose for consideration in C.W.J.C. No. 6575 of 2009. Letters Patent Appeal against some of the analogous cases were dismissed as also the Special Leave Petitions. Counsel for the state in rejoinder submits that in some of the Special Leave Petitions notices have been issued and some matters are pending before the Division Bench and orders have been reserved. We have considered the submissions on behalf of the parties. The petitioner in his writ application acknowledged that he came to be appointed on 20.2.1988 in pursuance of a Notice Board Advertisement. Having come to know about the Advertisement, he applied. The appointment letter states that pursuant to his letter and the difficulties being felt in execution of works related to Malaria and Family Welfare, he was being appointed in a temporary capacity. Earlier, he was working as a Basic Health Worker (Malaria). Show cause notice was issued to him after which termination followed on 20.12.2003. It states that his appointment was not by the competent authority, no Advertisement had been published, no interviews were held, he was not appointed by the Selection Committee, no merit list had been prepared and 4 Patna High Court LPA No.166 of 2013 (6) dt.16-12-2013 4 / 7 even reservation roster was not followed. In C.W.J.C. No. 6575 of 2009, the claim was being considered pursuant to the Five Man Committee report for the purpose of regularization from daily wagers. The basic premise on which the learned Single Judge proceeded was that the persons had worked for more than 10 years, service book had been opened including promotions given to some of them. The ground taken to challenge the Five Man Committee report was that it had been signed by only three members. The State was unable to answer why two members had not participated. The enquiry was conducted without looking into records relating to appointment and contrary to principles of natural justice with opportunity of defence. The reports were therefore without application of mind. Many of them had continued for nearly 15, 18 and 20 years without the cover of any Court orders. In conclusion, it was held that the Five Man Committee report being in violation of the principles of natural justice, it was set aside. It has repeatedly been held that all appointments in Government constitute a National Wealth and Article 14 of the Constitution mandates equal opportunity for all eligible to be considered and compete for appointment. Any appointment made contrary to Article 14 of the Constitution is void, ab initio and even 28 years of service was held to be not a valid ground for sustaining an illegal 5 Patna High Court LPA No.166 of 2013 (6) dt.16-12-2013 5 / 7 appointment as held in (2003)3 SCC 485 (Chanchal Goyal (Dr.) Vs. State of Rajasthan). The fact that no Advertisement had been published on the own showing of the respondent was not an issue which came up for consideration in C.W.J.C. No. 6575 of 2009. The illegality of an appointment on basis of a Notice Board Advertisement and such an appointment being in teeth of Article 14 of the Constitution was held by a Division Bench
Decision
The Appeal is allowed. (Navin Sinha, J) (Shailesh Kumar Sinha, J) P. Kumar/-