Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15877 of 2011 ====================================================== 1. Birendra Prasad Deo @ Birendra Prasad S/O Sri Rameshwar Prasad Deo R/O Village - Pakari, Police Station - Baheri, District- Darbhanga 2. Kailash Lal Deo S/O Sri Deo Narain Lal Deo R/O Village - Uraina, Police Station - Baheri, District - Darbhanga Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary Department Of Health, Government of Bihar, Patna 3. The Commissioner, Department Of Health, Government of Bihar, Patna 4. The Director-In-Chief, Health Services, Government of Bihar, Patna 5. The Regional Deputy Director, Health Services Government of Bihar, Darbhanga Division, Darbhanga 6. The Civil Surgeon-Cum-Chief Medical Officer, Madhubani 7. The Civil Surgeon-Cum-Chief Medical Officer Madhepura 8. The Incharge Medical Officer, Primary Health Centre, Bennipatti, District- Madhubani 9. The Incharge Medical Officer, Primary Health Centre, Madhwapur, District -Madhubani .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. R.K. Verma, Sr. Advocate with Mr. Ranjeet Kumar For the Respondent/s : Mr. Jawahar Pd. Karn AAG 4 ====================================================== Mr. Ashok Kumar Dubey, AC to AAG 4 CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA C.A.V. ORDER 6 20-08-2013 Heard learned counsels for the petitioners and the State. Petitioners are aggrieved by the order dated 28th March, 2011 (Annexure-6) passed by Hon’ble Justice Uday Sinha One Man Enquiry Committee (hereinafter referred to as the “Committee”) in Case No. 174 of 2010 filed by petitioners pursuant to the order dated 23rd March, 2010 (Annexure-5/1) passed in L.P.A. No. 541 of 2010, whereby and whereunder the
Facts
Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 2 termination of the services of the petitioners vide memo no. 999 dated 24th May, 2001 (Annexure-3) was affirmed holding that the appointment of the petitioners as Vaccinator as illegal for being appointed without going through the rules of appointment as well as the appointment was made by Civil Surgeon who was not competent authority. It is submitted on behalf of the petitioners that on immediate requirement of Vaccinators since various health projects of the Government were not being proceeded fast as desired, it was decided to fill-up the sanctioned post of Class III and Class IV category and directed all the Civil Surgeon-cum- Chief Medical Officer and other appointing authority under the Health Department to take steps for filling the vacancies of Class III and Class IV posts after following the guidelines vide letter no. 4671 dated 06.07.1987 (Annexure-1). Accordingly petitioners were appointed by the order of Chief Medical Officer, Madhepura by order dated 09.03.1988 and 03.03.1988 vide Annexures-2 & 2/1 respectively. Petitioners joined the posts and continued to serve till visited with the order of termination dated 24.05.2011 (Annexure-3). Similar orders were issued with respect to other employees as large number of appointments were made. A good number of such employees filed several writ petitions assailing the order of their termination vide CWJC No. 6575 of 2009 (Om Prakash Vs. The State of Bihar & Ors.) alongwith analogous cases which were Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 3 allowed as per order dated 06.10.2009 (Annexure-4). The orders of terminations were quashed with a direction to reinstate them. Against the said order the State preferred several appeals vide LPA No. 1623 of 2009 alongwith analogous cases disposed of by judgement/order dated 11.02.2010 (Annexure-5). The appellate Court while disposing of the appeals directed for constituting the aforesaid One Man Enquiry Committee and directed to consider the cases of terminations of the concerned employees. The appeal with respect to petitioners filed by the State i.e. L.P.A. No. 541 of 2010 was disposed of by order dated 23.03.2010 (Annexure- 5/1) as the controversy was covered under the aforesaid order dated 11.02.2010 (Annexure-5). The aforesaid Committee decided against the petitioners and held that their appointment was illegal for not following the required procedure for appointment at all inasmuch as the appointment of the petitioners were made by incompetent authority as the competent authority was the Deputy Regional Director Health.
Legal Reasoning
are concerned, the Division Bench of this Court in Appeal filed by the State as Annexure-5/1 had directed to consider the cases of terminated employees by the said Committee and they could be reinstated only in case the said Committee decides in their favour and since the Committee decided against them they could not be reinstated. It is accordingly submitted that the writ application deserves to be dismissed. Considering the submissions of the parties and their respective pleadings, it is not in dispute that petitioners were appointed by Civil Surgeon-cum-Chief Medical Officer, Madhepura in the month of March, 1988 (Annexure-2 series) and after joining the post of Vaccinator they continued till 24.05.2001 when they were terminated. It would appear that the matter with respect to termination and reinstatement were considered by this Court in batch of appeals vide LPA No. 1623 of 2009 and analogous appeal disposed of on 11.02.2010 (Annexure-5). The appeal in respect of petitioners filed by the
Arguments
Learned counsel submits that as regards the competency of the appointing authority, it would appear on perusal of the Government letter no. 4671 dated 06.07.1987 (Annexure-1) that at the material time the concerned Civil Surgeon-cum- Chief Medical Officer were authorized to make appointment, and as such, their appointments were made by the competent authority. As regards illegality in appointment, it is submitted Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 4 that notice of the vacancies was advertised and circulated on the notice board. Petitioners applied for the post and they were accordingly appointed against the sanctioned post as per appointment letters dated 09.03.1988 & 03.03.1988 vide Annexure-2 & 2/1 and continued to work till 24.05.2001 when they were visited with the order of termination as contained in Annexure-3. It is however contended that the persons, who were similarly terminated alongwith petitioners namely, Vijay Kumar, Brajdeo Prasad, Udaychand Thakur & Sri Lalan Prasad Singh, were reinstated in service although they were also appointed in the same process whereas petitioners have remained terminated. It is accordingly submitted that their appointments were legal and valid, and as such, the order dated 28.03.2011 (Annexure-6) of the Committee as also the order of termination dated 24.05.2001 (Annexure-3) deserves to be quashed with consequential relief. On the other hand, learned counsel for the State submits that on the appeals filed by the State against the aforesaid order of learned Single Judge quashing their termination, the Division Bench of this Court as per detailed judgement disposed of the appeal i.e. L.P.A. No. 1623 of 2009 and analogous appeals with the directions and conditions mentioned in the order. As per the terms and conditions, the order of Single Judge was nullified and One Man Enquiry Committee was entrusted to look into various facets of the Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 5 nature of appointments with a view to adjudicate the legality of their appointment and continuance in service after affording opportunity of hearing to both the parties with liberty to the petitioners to satisfy the said Committee that the appointment was valid in law and there could be no reason to unsettle the appointment. It was specially directed that the terminated employees would be reinstated only in case the Committee records a finding in their favour holding their appointment and continuance in service to be legal. It is submitted that petitioners filed applications before the said Committee defending their appointment which was registered as Case No. 174 of 2010. The Committee considered the cases of the petitioners and upon consideration held that petitioners were appointed without following the rules of appointment and also that petitioners were appointed by Civil Surgeon, Madhepura whereas the appointment ought to have been made by Regional Deputy Director and not Civil Surgeon. Accordingly the Committee held that termination of the petitioners was legal & justified and accordingly dismissed their cases. As regards the reinstatement of persons named by the petitioner, it is submitted that they were reinstated pursuant to individual order on the writ petition filed by the concerned persons followed by the order passed in contempt proceedings whereas there is no such order in favour of these petitioners, and as such, they cannot claim parity with them. So far as petitioners Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 6
Decision
State vide LPA No. 541 of 2010 was disposed of by order dated 23.03.2010 (Annexure-5/1) which is covered by the previous order dated 11.02.2010 (Annexure-5). This Court while disposing of the aforesaid appeals specifically directed that the nature of appointment and termination would be considered by the Committee and petitioners could be reinstated only in case the Committee records finding in their favour holding their appointment and continuance in service to be legal. Petitioners Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 7 filed their respective cases before the Committee in light of the aforesaid decision taken in the letters patent appeal. The Committee concluded that they were appointed without following the rules for appointment laid down by the State as well as that the appointing authority was Regional Deputy Director and not Civil Surgeon. Even accepting the submissions of the petitioners that the concerned Civil Surgeon was authorized to make appointment in the given situation as per letter no. 467 dated 06.07.1987 (Annexure-1) it would appear that appointments were required to be made after following the due procedure. There is nothing on the record to substantiate that rules of appointment right from the stage advertisement and selection were followed even though the Civil Surgeon may be the appointing authority. In my opinion, in view of the above factual situation the order dated 28.03.2011 (Annexure-6) passed by Hon’ble Justice Uday Sinha Committee as contained in Annexure-6 holding the appointment of the petitioners illegal and affirming the order of their termination as contained in Annexure-3 calls for no interference. The submission of the petitioner claiming parity with the persons who were reinstated pursuant to another order of this Court can have no legal consequence in view of the specific order of this Court passed in case of the petitioners as per order dated 23.03.2010 (Annexure-5/1) passed in LPA No. 1623 of 2009 alongwith analogous cases read with order dated 11.02.2010 (Annexure- Patna High Court CWJC No.15877 of 2011 (6) dt.20-08-2013 8 5) passed in LPA No. 541 of 2010. For the reasons and discussions made above, I do not find any merit in the writ application. It is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Manish/- (Shailesh Kumar Sinha, J)