Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21049 of 2012 ====================================================== Smt. Ram Ladu Devi W/O Late Namo Narayn Jha And Daughter Of Late Balel Mishra Resident Of Village Shobhanath Patti, P.S. Hayaghat, District Darbhanga. At Present Mohalla New Khaja Sarai, Laheriasarai, P.S. Bahadurpur, District Darbhanga. .... .... Petitioner Versus 1. The State Of Bihar Through The Director In Chief, Department Of Health Services, Government Of Bihar 2. The Incharge Medical Officer, Khutauna Lakha, Madhubani 3. The Civil Surgeon-Cum-Chief Medical Officer, Madhubani .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Ram Bali Jha, Adv. For the Respondent/s : Mr. Brisketu Sharan Pandey, AC to AAG7 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 11-11-2013 Heard learned counsel for the parties. 2. In this writ application the petitioner has prayed for the following relief: “A. A writ of certiorari for quashing the act done by the respondent no. 1 by which act or order the respondent no.1 was found the service of the petitioner illegal by his report dated 4.8.2008 by which the respondent no.1 has found the service of the petitioner alongwith others near about 245 persons whose enquiry has been kept pending but later on their service have been declare as illegal. And this petitioner’s service have also been found illegal. Be it noted that the aforesaid enquiry has been made by the respondent no.1 on the basis of order or direction dated 26.6.2006 passed by the Hon’ble Chief Justice and Hon’ble Mr. Justice Shiv Kriti Singh in the petitioner’s case C.W.J.C.No. 1578/2000 with analogous case L.P.A.No. 946/2003 State vs. Purenda Sulnkit reported in Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 2 2006(3) PLJR 386. Be it noted that the petitioner has already filed M.J.C.No. 3016/2008 which is still pending but after submission of report the aforesaid M.J.C. has become infructuous, the aft of the respondent no.1 is illegal, arbitrary, unconstitutional the said inquiry has been made behind the back of the petitioner. B. A writ of mandamus directing the respondents to reinstate the petitioner on her post on which post she had been working.”
Legal Reasoning
3. Learned counsel for the petitioner has submitted that the decision of termination of service of the petitioner passed on 20.11.1999 while she was holding the post of Female Ward Attendant in the Additional Primary Health Centre, Lokaha was out and out an illegal order and as such, she should be reinstated in service. Learned counsel for the petitioner in support of the aforementioned prayer has relied on an order of this Court dated 14.7.2011 in L.P.A.No. 1748/2010 (State of Bihar & ors. v. Pawan
Decision
Kumar Jha) disposed of on 14.7.2011. 4. Learned counsel for the State, on the other hand, has submitted that not only the writ application of the petitioner has been filed after thirteen years of cause of action but even otherwise is fit to be dismissed on the basis of the averments made by the petitioner which will leave nothing for speculation that her appointment itself was out and out an illegal appointment. 5. Learned counsel for the petitioner, in reply, submits Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 3 that initially the petitioner had filed C.W.J.C.No. 1578/2000 which was disposed of on 26.6.2006 alongwith 820 cases and after the respondent had declared appointment of the petitioner to be illegal in the year 2008 she had moved this Court again by filing C.W.J.C.No. 2474/2012 which was dismissed by an order dated 7.2.2012 with a liberty to the petitioner to file a fresh writ petition stating all the relevant facts and enclosing all the relevant documents. 6. Having regard to the aforementioned explanation this Court will not find the writ application to be delayed keeping in view that she had moved this Court assailing cancellation of her appointment passed in the year 1999 by filing her writ application in the year 2000 and also had followed by filing another writ application in the year 2012. 7. The whole question, however, would be as to what was the nature of appointment of the petitioner? The petitioner herself claims that she was engaged as a voluntary Dai in the year 1977 and continued to remain as a Dai till 1985 when she was sought to be posted as a trained Dai by way of absorption. Admittedly there was no procedure of appointment followed in the appointment of the petitioner. Her claim to be working as a voluntary Dai or voluntary health worker will have no legs to stand because that was a honorary assignment of Rs. 50/- per Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 4 month. On the basis of such appointment as a voluntary worker no one can be appointed in regular Government service and that too by way of absorption. In the appointment of the petitioner the mandate of Articles 14 and 16 of the Constitution of India having been not followed her claim of continuing in service either as a voluntary health worker or as a Dai can never lead to her absorption in service. 8. If in the aforesaid background the claim of appointment of the petitioner in the Government service is examined it is found by this Court that the same is based on the alleged office order of the Civil Surgeon cum Chief Medical Officer, Darbhanga dated 4.5.1985 which reads as follows: ^^dk;kZy; nSfud ’kY; fpfdRlk lg eq[; fpfdRlk inkf/kdkjh] Kkikad -------------- ygsfj;k ljk; fnukad njHkaxkA izsf"kr] izHkkjh fpfdRlk inkf/kdkjh] njHkaxk iz[k.MA vkids i= la0 142 fnukad 1.4.85 ds vkyksd esa Jhefr jkle yMw nsoh efgyk ,SfPNd dk;ZdrkZ dks efgyk d{k lsfodk ds osrueku 350&425 lfcy;u djrs gq, csuhiqj iz[k.M izf’kf{kr nkbZ ds fjDr in ij inLFkkfir fd;k tkrk gSA izf’kf{kr nkbZ ds in ij dk;Z djus ds mijkUr Hkh mUgsa efgyk d{k lsfodk dk gh osrueku nsuk gksxkA g0& vzLi"V vlSfud ’kY; fpfdRlk lg eqf[k;k fpfdRlk ink0 njHkaxkA Kkikad 1201 ygsfj;kljk; fnukad 4-5-85 izfrfyfi& Jhefr jke yMq nsoh] izksUufr efgyk d{k lsfodk dks lwpukFkZ Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 5 izsf"krA izfrfyfi& izHkkjh fpfdRlk inkf/kdkjh LokLF; dsUnz csuhiqj dks lwpukFkZ izsf"krA g0& vzLi"V 3-5-85 vlSfud ’kY; fpfdRlk lg eqf[k;k fpfdRlk inkf/kdkjh] njHkaxkA^^ 9. The process of appointment of the petitioner, therefore, was by way of absorption. The question would be wherefrom she was being absorbed? On which post she was earlier absorbed in which the mandate of Articles 14 and 16 of the Constitution of India was followed? There being no such evidence such appointment of the petitioner itself has to be held as a rank illegal appointment. The illegality in the appointment of the petitioner gets further surfaced from an office order of the Regional Deputy Director of Health dated 15.3.1988 who now had sought to transfer the petitioner from Darbhanga to Madhubani, wherein she was deemed to have been absorbed on a Class IV post as would be evident from reading of Annexure 2, the order dated 15.3.1988 which reads as follows: ^^dk;kZy; {ks=h; mi funs’kd LokLF; lsok] njHkaxk izeaMy njHkaxkA vkns’k Jhefr jkeyMMw nsoh efgyk d{k lsfodk] izkFkfed LokLF; dsUnz csuhiqj AnjHkaxkA dk LFkkukUrj.k lg inLFkkiu vlSfud ’kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh e/kqcuh ds v/khuLFk fd;k tkrk gSA os vius ftykUrxZr fjDr efgyk d{k lsfodk AprqFkZA oxhZ; ds in ij bUgsa lek;ksftr djssaxsA Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 6 budk LFkkukUrj.k vkosnu ij fd;k x;k gS] vr,o bUgsa ekxZ O;; ns; ugha gksxkA g0@& vLi"V {ks=h; mi funs’kd LokLF; dsUnz njHkaxk izeaMy njHkaxkA Kkikad 150 ygsfj;kljk; fnukad 15-3-88** 10. Thus, the absorption by the order of the Civil Surgeon, the transfer and deemed adjustment on a Class IV post under the order of the Regional Deputy Director of Health and the ultimate decision of termination of her service on the ground that her promotion was made from the post of voluntary worker, as would be evident from the order of termination dated 20.11.1999, will leave nothing for this Court to decide but to hold conclusively that her appointment itself was void ab initio and illegal which was terminated way back on 20.11.1999 by passing the following order: izs"kd] izHkkjh fpfdRlk inkf/kdkjh] vfr0 izk0 Lok0] dsUnz yksdgkA izsf"kr] Jhefr jkeyMMq nsohA efgyk d{k lsfodk] vfr0 izk0 Lok0 dsUnz yksdgkA fo"k;& lsok lekfIr ds lEcU/k eaA vlSfud ’kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh e/kqcuh ds Kkikad 179 fnukad 19-11-99 ds vkyksd esa pwafd vkidh izksUufr ,SfPNd dk;ZdRkZk ds d0 d{k lsfodk ds in ij gqbZ FkhA vr% ekuuh; mPPk U;k;ky; esa nk;j ;kfpdk lh0MCyw0tsa0lh0 la[;k 10464 @93 esa fuxZr vkns’k ds vkyksd esa vkidh lsok lekfIr dj nh x;h gSA Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 7 g0@& vLi"V 20-11-99 izHkkjh fp0ink0 yksdgkA Kkikad 22 fnukad 20-11-99** izfrfyfi& vlSfud ’kY; fpfdRld lg eq[; fp0 ink0 e/kqcuh dks muds Kkikad 1792 fnukad 19-11-99 ds vuqikyu esa lwpukFkZ ,oa izsf"krA 2& izHkkjh fpfdRlk ink0 lqikSy dks lwpukFkZ izsf"krA g0@& vLi"V 20-11-99 izHkkjh fp0ink0 yksdgkA** 11. There will be infact no difficulty for this Court in holding that the appointment of the petitioner was in fact also void ab initio on account of the vacancy being not advertised in the newspaper followed by the process of selection. This aspect of the matter has been decided by the Apex Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty, reported in (2011)3 SCC 436, wherein appointment made on the vacancy notified on the notice board has been deprecated in the following words:- “Appointment/ employment without advertisement 35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 8 who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite application from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirements of the said article of the Constitution. (Vide Delhi Development Horticulture Employees’ Union v. Delhi Admn. [(1992)4 SCC 99], State of Haryana v. Piara Singh [(1992)4 SCC 118, Excise Supt. V. K.B.N. Vishweshwara Rao [(1996)6 SCC 216], Arun Tewari v. Zila Mansavi Shikshak Sangh, [(1998)2 SCC 332], Binod Kumar Gupta v. Ram Ashray Mahoto [(2005)4 SCC 209], National Fertilizers Ltd. vs. Somvir Singh [(2006)5 SCC 493], Deptt. Of Telecommunications v. Keshab Deb [(2008) 8 SCC 402], State of Bihar v. Upendra Narayan Singh [(2009)5 SCC 65 and State of M.P. v. Mohd. Abrahim [(2009)15 SCC 214]. 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting application from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board etc. that will not meet the requirement of Article 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 9 candidates who are eligible for the post from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” 12. Thus, both on fact as also in view of the law laid down by the Apex Court in the case of Mamata Mohanty (supra), there will be no difficulty in coming to a conclusion that the so- called appointment of the petitioner was bad specially when it was claimed that she was promoted on Class-4 post from the post of voluntary worker. There being no cadre post of voluntary health worker, such promotion was not possible. This aspect of the matter in fact has been also fully explained by the Apex Court in the case of Md. Ashif Vs. State of Bihar reported in 2010(2) PLJR 157 (SC) wherein it was held as follows:- “11. Applying the test laid down by this Court in Uma Devi’s case (supra) and the cases referred to above, to the case at hand, there is no gainsaying that the appointments of the appellants as Primary Health Workers were totally illegal and violative of Articles 14 and 16 of the Constitution which gurantee equality of opportunity to all those who were otherwise eligible for such appointments. Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 10 The Chief Medical Officer who had made the appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which the appellants were appointed, considered. Surprisingly, the appointments had come by way of absorption of the appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs.50/- only. The High Court has, in our opinion, correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State run dispensaries. The very nature of the appointment given to the appellants as Voluntary Health Workers was honorary in nature which entitled them to the payment of not more than Rs.50/- per month. It is difficult to appreciate how the Chief Medical Officer could have regularized/ absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health Workers which carried a regular pay scale and which could be filled only in accordance with the procedure prescribed for that purpose. The appointment of the appellants against the said posts was thus manifestly illegal and wholly undeserved to say the least, inasmuch as those appointments came to be cancelled pursuant to the said directions no matter nearly a decade and a half later the termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. The High Court was, in that view of the matter, justified in Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 11 declining interference with the order of cancellation and dismissing the writ petitions.” 13. The submission that similar appointment alike the petitioner is continuing in service first of all is quite vague submission because no person claimed to be initially engaged on voluntary health worker and later on promoted on the post of Class-4 employee in the Health Department has been specifically brought to the notice of this Court. Assuming that some such illegal appointment is continuing, that will not clothe the petitioner to also perpetuate the illegality. This aspect of the matter has been also settled in the judgment of the Apex Court in the case of State of Bihar v. Upendra Narayan Singh, reported in (2009)5 SCC 65, wherein it has been held as follows: issued “ 59. At the hearing of this appeal, we asked the learned Senior Counsel appearing for the respondents to show that before appointing his clients on ad hoc basis, the an then Regional Director, Gaya had advertisement and/or sent requisition to the employment exchange and made selection after considering competing claims of the eligible candidates but he could not draw our attention to any document from which it could be inferred that the respondents were appointed after advertising the posts or by adopting some other method which could enable other eligible persons to at least apply for being considered for appointment. He, however, submitted that issue relating to legality of the initial appointments of the respondents has become purely academic and this Court need not go into the same because their services had been regularized by the competent authority in 1992. 60. In our opinion, there is no merit in the submission of the learned Senior Counsel. If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 12 with consequential benefits cannot be approved by relying upon the so-called regularization of their services. Had the respondents been appointed by the competent authority after issuing an advertisement or sending requisition to the employment exchange so as to enable the latter to sponsor the names of eligible persons then the relevant they would have certainly produced documents before the High Court or at least before this Court. However, the fact of the matter is that none of the documents which could give a semblance of legitimacy to the appointments of the respondents was produced before the High Court and none has been produced before this Court. *************************************** 65. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits. 67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order - Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC94], Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] ." Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 13 14. Finally, as with regard to over-emphasized reliance placed on the order of this Court in the case of Pawan Kumar Jha (supra) all that now needs to be added here is that such orders with regard to alleged conflict in law laid down by the Apex Court in the case of State of Karnataka & ors. vs. M.L.Kesari & ors., reported in (2010)9 SCC 247, and the earlier judgment of the Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi & ors., reported in (2006)4 SCC 1, has been set at rest in the Full Bench Judgment of this Court in the case of Ram Sevak Yadav & anr. Vs. State of Bihar & Anr., reported in 2013(1) PLJR 964, wherein it was held as follows: “ 32. In M.L.Kesari (supra) it was observed at paragraph 7 as follows :- “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 14 (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” (Emphasis added by me) 33. As we read the paragraph, in our humble opinion, and to the best of our appreciation and understanding, a person not appointed against a sanctioned post and not possessing the requisite qualification for the post is not entitled to regularisation even if he has worked for over ten years. But a person possessing the requisite qualifications appointed against a sanctioned post and who has continued over ten years without aid of Court orders is eligible for regularisation even if the appointment was made without the process of open competitive selection. The catena of decisions noticed by us of the Apex Court in no uncertain terms provide that if the appointment was in violation of Article 14 without advertisement and equal opportunity to all eligible for being considered, the question of regularisation does not Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 15 arise. Only if some rudimentary compliance even by registration with and calling of names from the employment exchange was followed, could regularisation be considered if it was made against a sanctioned post. Mere appointment against a sanctioned post without furthermore shall not suffice. With all the humility at our command, again in our humble opinion a competitive selection even in such a case is the mandate of the Constitution bench at paragraph 43 extracted above.” 15. Thus in the light of law laid by the Apex Court and this Court in the long line of cases arising out of illegal appointment in the Health Department itself, some of which have also referred to as above it has to be necessarily held that the entry and appointment of the petitioner in government service was itself ab initio void and thus she cannot be reinstated in service. 16. As a matter of fact, the long and short of the case of the petitioner is that her out and out illegal appointment on the basis of which she continued in service for a period of fourteen years having come to an end way back in the year 1999 and thus she, having remained out of service for a equal fourteen years, no equity can also lie in her favour. The petitioner, having removed from service in the year 1999, is now not entitled for being reinstated in service in the year 2013 when the law with regard to illegal appointment, illegal regularization and illegal promotion in the case of Health Patna High Court CWJC No.21049 of 2012 (2) dt.11-11-2013 16 Department has been set at rest by both by the Apex Court as also the Full Bench of this Court as discussed above in this judgment. 17. That being so, for the reasons indicated above, this application must fail and is, accordingly, dismissed. (Mihir Kumar Jha, J) surendra/-