Pradeep Kumar Mehta v. State of Bihar — 1998 DIGILAW 4 (PAT)

JUDGMENT S.K. Chattopadhyaya, J. With common grievance the petitioners in these two writ applications have moved this court with a prayer to quash the orders of termination of the petitioners from the date of receipt of the same. As both the writ applications were heard together, for convenience, this judgment will govern both the cases. 2. First the facts : According to the petitioners, pursuant to advertisement for appointment on various posts duly published in the daily newspaper, they applied for the same. Their names were sponsored by the Employment Exchange, Ranchi after the scrutiny of the applications. The names were sent to the Civil Surgeon-cum-Chief Medical Officer, (respondent no. 6) for consideration and for appointment in the respective posts. The Selection Committee/Interview Board consisted of respondent no. 6 as its Chairman, the Dy. Superintendent being the Sr. Officer of the establishment of Civil Surgeon and the District Welfare Officer, Ranchi, which was constituted strictly on the guidelines contained in the Chief Secretary's letter being memo no. 16440 dated 3.12.80. The petitioners being interviewed and found suitable, their names were included in the panel for appointment which was prepared in four parts consisting of the lists of applicants of scheduled tribe, scheduled caste, general category and a waiting list for schedule tribes, scheduled castes and general candidates. The said panel, prepared by the Selection Committee, was sent to the Health Department by letter no.99 dated 20.1.90. The Director in Chief, Health Services duly approved the said panel which would be evident from memo no. 53 (IIC) dated 5.2.90. However, after a few months of their appointment, the services of all the petitioners were terminated on the basis of a teleprinter message dated 16.5.90 issued from the office of the Health Commissioner, Govt. of Bihar (Annexure 8). The petitioners challenged the same before this court in CWJC nos. 1212 and 1329 of 1990 (R) and the said termination orders were quashed on 5.11.90 (Annexure 10). The Division Bench noticed the facts as follows : "We have already noticed that there are materials available on the record to show that in pursuance of the advertisement, a panel was prepared and persons out of the said panel were appointed. These appointments were approved by the Director-in-Chief, Health Services, Bihar, if the State Government found that there had been any irregularity in making appointments, it could have ordered an inquiry into the matter. These appointments were approved by the Director-in-Chief, Health Services, Bihar, if the State Government found that there had been any irregularity in making appointments, it could have ordered an inquiry into the matter. If the Government proposed to pass any order which would have adversely affected the petitioners, the authorities were required to hear the petitioners which admittedly in these cases were not done." This court, holding that the respondents could not have terminated the services of the petitioners on the basis of the teleprinter message, quashed the impunged orders and also held that the petitioners were entitled to their salaries for all the periods. However, the Division Bench gave liberty by observing "needless to say that if the State Government is of opinion that the question of application of the petitioners should be inquired into, it can do so after giving notice to the petitioners". 3. Pursuant to the order of the High Court respondent no. 6 issued a circular to all the Medical Officers incharge directing them to furnish the details of the certificates of the petitioners within one week of the receipt of the letter failing which the salaries of the petitioners shall be stopped. A copy of the said show cause notice dated 11.11.91 is annexure 11. The petitioners furnished their certificates and after finding that they were genuine, the salaries of the petitioners were released. However, after lapse of one year, once again respondent no. 6 issued another show cause notice asking the petitioners as to why their services be not terminated. This show cause dated 29.8.92 is annexure 12. The petitioners submitted their show cause on 21.10.92 (Annexure 13) and after considering the same the petitioners were not only allowed to continue in their services but also allowed three increments in salary. When it was found that the matter of appointment had been set at rest, all of a sudden on 5.5.94 the department of Health and Family Welfare inquired from the Civil Surgeon, Ranchi as to whether the services of the petitioners have been terminated or not and, if not, to terminate their services after issuing show cause notice to them. This letter is dated 5.5.94 which is about two and half years of show cause notice as contained in annexure 12. This latest show cause on the basis of the letter of the Health Commissioner dated 5.5.94 is annexure 14. This letter is dated 5.5.94 which is about two and half years of show cause notice as contained in annexure 12. This latest show cause on the basis of the letter of the Health Commissioner dated 5.5.94 is annexure 14. The Civil Surgeon, on the basis of the said letter, again issued show cause notice to the petitioners by his letter dated 4.6.94 asking them to show cause as to why their services be not terminated. The petitioners have annexed a copy of the said show cause notice as annexure 15. The said order of the Health Commissioner dated 5.5.94 (Annexure 14) and subsequent show cause dated 4.6.94 (Annexure 15) were again impunged by the petitioners before this court in CWJC Nos. 1586, 1647, 1976 and 3039 of 1994(R). The order of the High Court, in those writ applications, are dated 30.6.94, 18.5.94 and 20.3.95 contained in annexure 16 series. 4. The Division Bench on 30.6.94 while granting permission to the petitioners of that writ application to withdraw CWJC No. 1586/94R, directed as follows: "The petitioners will file their show cause within two weeks from today. On such show cause being filed the concerned authority will scrutinise the case of each of the petitioners in accordance with law and will not in any way be influenced by the order dt. 8.5.94 passed by Shri K. Arumugam, Secretary-cum-Commissioner, Health deptt., as contained in annexure II. We are making this observation in view of the submission of Mr. K.D. Chatterjee that order dt. 5.5.94 as contained in annexure II amounts to a decision of the authority before the enquiry was made. It is made clear that the' concerned authority making enquiry shall exercise his own independent mind." 4. In view of the said order dated 30.6.94 passed in the aforesaid writ application the petitioners of that writ application withdrew that application and again the Division Bench observed that the direction and observation made in CWJC no. 1586/94R will also cover the case of the said petitioners. In CWJC No. 1976/94R a learned Single Judge disposed of the said writ application on 18.5.95 directing that the order dated 5.3.94 shall not be given effect to unless and until final order is passed by the competent authority pursuant to the show cause filed by the petitioners. 1586/94R will also cover the case of the said petitioners. In CWJC No. 1976/94R a learned Single Judge disposed of the said writ application on 18.5.95 directing that the order dated 5.3.94 shall not be given effect to unless and until final order is passed by the competent authority pursuant to the show cause filed by the petitioners. The learned Single Judge also observed that it goes without saying that the Enquiry Officer will conclude the departmental enquiry on the basis of the materials available before him and shall not be. influenced by any order already passed by the authority concerned. Similarly another CWJC No. 3039/94R was disposed of by a learned Single Judge on 20.3.95 by directing the concerned respondents to dispose of the matter regarding the show cause issued to the petitioners and the reply' thereto after giving opportunity of personal hearing to them in the matter. It was further directed that the matter should be disposed by speaking order. 5. It appears that pursuant to different orders of the High Court the petitioners filed their show cause through proper channels in the year, 1994, annexure 17 series. It is the case of the petitioners that after filing of the show cause as mentioned above, the concerned respondents slept over the matter for nearly two years and, thereafter, without holding any departmental enquiry as directed by this court, by order dated 27.7.96, terminated the services of the petitioners. These letters were issued and served on the petitioners in between 1st of November to 21st of November, 1996, annexure 18 series, in CWJC nos. 3973/96R and annexure 12 in CWJC no. 4111/96R. 6. From a bare perusal of the termination orders, as aforesaid, it would be seen that the concerned authority while passing the same, took into consideration the following facts – (a) There was no determination of vacancy according to Roster Register. (b) The number of applications do not tally with the records of Employment Exchange by Commissioner and Civil Surgeon. (c) The Selection Committee was not constituted according to the circular of the Department of Personnel and Administrative Reforms as contained in letter nos. 16440 and 16441 dt. 3.12.80. (d) The Addl. Chief Medical Officer was not the member of the Selection Committee. (e) The panel was not prepared according to merit. 7. Mr. Anil Kumar Sinha, learned Sr. (c) The Selection Committee was not constituted according to the circular of the Department of Personnel and Administrative Reforms as contained in letter nos. 16440 and 16441 dt. 3.12.80. (d) The Addl. Chief Medical Officer was not the member of the Selection Committee. (e) The panel was not prepared according to merit. 7. Mr. Anil Kumar Sinha, learned Sr. counsel appearing on behalf of the petitioners has vehementally criticised the action of the concerned respondents in passing the said impugned orders by submitting that the authority while passing the said orders, has taken into consideration the same enquiry report of the Deputy Commissioner, Ranchi dated 2.11.90 which was admittedly taken into consideration by this court in the earlier writ applications and after considering the said report orders of termination were quashed directing the concerned authority to enquire into the matter afresh if they so desire according to law but instead of holding a fresh enquiry as directed by this court, the impugned• orders have been passed and on this score alone the impugned orders should be quashed. Secondly, it is contended that as far as the first reason for passing the said impugned orders is concerned, the concerned authority, has failed to appreciate that the panel was prepared strictly according to roster system and there was no irregularity in preparation of the same. He contends that the recommendations of the selection committee on the basis of the panel prepared, was duly approved by the Director-in-Chief, Health Services as contained in Annexure 7 and, as such, there was no reason for the same Director to pass the instant impugned orders and passing of these orders will show that the merits of the individual cases were not considered, rather the impugned orders have been passed on some extraneous grounds. So far reason no. II is concerned, he submits that the applications were invited through Employment Exchange and only the names of those candidates were considered whose names were sponsored by the Employment Exchange, Ranchi and thus this reason also does not stand to reason. Similarly reason no. III that the selection committee was not constituted according to the circular dated 3.12.80 has no legal force to stand because the said committee/Board was constituted in strict compliance of letter nos. 16440 and 16441 of the- Chief Secretary, Government of Bihar. With reference to letter no. Similarly reason no. III that the selection committee was not constituted according to the circular dated 3.12.80 has no legal force to stand because the said committee/Board was constituted in strict compliance of letter nos. 16440 and 16441 of the- Chief Secretary, Government of Bihar. With reference to letter no. 16440 dated 3.12.80 as contained in annexure 4, Mr. Sinha submits that the committee/Board was to consist of the Civil Surgeon-cum-Chief Medical Officer, Dy. Superintendent and the District Welfare Officer, Ranchi. When this committee, after consideration of the names of the petitioners for appointment submitted• its recommendations before the Director, Health department which was admittedly approved by him, it would be futile for the respondents to urge that the said interview Board/Selection committee was not properly constituted. Similarly there being no instruction either in the advertisement or in the letter as contained in annexure 4 that the appointments were being made from the district panel only, the reason assigned by the concerned authority in the impugned orders that the direction of the Government dated 3.12.80 were not followed, is also not sustainable. Impugning reason nos. 4 and 5 it is contended that in letter dated 3.12.80 (annexure 4) there was no instruction that the Additional Chief Medical Officer must be one of the members of the Selection Committee. The Dy. Superintendent of Sadar hospital being the senior officer of the establishment was not of the members of the selection committee and, as such, this reason also cannot be a ground terminating the services of the petitioners. 8. It is further urged that the High Court on earlier occasions, having noticed the report of the Deputy Commissioner dated 2.11.90, directed the authority to make a fresh enquiry, if it so desire, which clearly shows that this court was not satisfied with the report dt. 2.11.90. Thus, Mr. Sinha continues, the authorities were bound to make a fresh enquiry ignoring the earlier report of the Deputy Commissioner which was submitted long ago on 2.11.90. Elaborating his arguments Mr. Sinha continues that the respondents have failed to satisfy this court that after different orders passed by this court either the Deputy Commissioner, Ranchi or any competent authority ever made a fresh enquiry into the respective cases of the petitioners. Elaborating his arguments Mr. Sinha continues that the respondents have failed to satisfy this court that after different orders passed by this court either the Deputy Commissioner, Ranchi or any competent authority ever made a fresh enquiry into the respective cases of the petitioners. Not only that, he continues, this report dated 2.11.90 as contained in annexure A will reveal that the then Deputy Commissioner did not make any enquiry, rather, on the basis of the enquiry made by one Sri Satish Singh Thakur, Managing Director of Zila Gramin Vikash Adhikaran, Ranchi, without applying his mind to the facts and circumstances of the case, submitted his report which cannot be a basis of termination of the petitioners' services. 9. In order to substantiate his argument that the concerned authority has not applied its mind to the facts and circumstances, Mr. Sinha has referred to para 36 of the writ application and submitted that the order of termination contains even the names of those persons who either did not join pursuant to their appointment letters or resigned from services after joining the post. Names of such persons have been mentioned by the petitioners. It is submitted that when the petitioners were validly appointed after following the procedures laid down by the Government from time to time, it was incumbent upon the Deputy Commissioner to ask the petitioners to file their show cause before he submitted his alleged report dt. 2.11.90 and that having not been done, the said enquiry report cannot be the basis of termination. Moreover, he urged that this court earlier was satisfied that the so called inquiry report of the Deputy Commissioner dt. 2.11.90 was ex parte order and, as such this court directed to hold fresh enquiry which was admittedly not done. 10. Mr. Sinha, thereafter, submitted that service inability provisions and quota for reservation had already been achieved before the appointment of the petitioners and even after their appointments. There cannot be running account with reservation when the percentage had already been achieved inasmuch as at the relevant time reservations were already available for the scheduled tribes, scheduled castes only and according to the notification 45% seats were reserved for schedule tribes and 5% for scheduled castes which was strictly followed when the petitioners were appointed. According to him the above facts are evident from the order of approval by the Director-in-Chief Health Services. According to him the above facts are evident from the order of approval by the Director-in-Chief Health Services. According to him it is the specific case of the petitioners that there were altogether 238 vacancies for all the seven posts out of which only 171 approximately were appointed in which 50% of the appointments were made from general category and 50% from the scheduled tribes and scheduled castes. Lastly it is contended that in view of the established principles of law a person cannot be terminated after lapse of so many years on the ground of appointment having been made illegally. 11. The stand of respondent nos. 5 and 6 in their counter affidavit, on the contrary is that in view of the circular no. 564(S) dated 26.6.89 and circular no. 16440 and 16441 dated 3.12.80, class IV employees like drivers have to be appointed from the district panel prepared every year on the clear vacancy. According to the respondents class III employees are to be appointed following the procedures against the clear sanctioned posts and vacancy advertised in the national newspaper stating the number of posts, qualification etc. roster clearance from the district appointment committee/District Magistrate/Deputy Commissioner constituted by the State Government and issuance of appointment letters. It is stated that the Civil Surgeon, Dr. Anna Mandai Kujur, though was not competent to make appointment, advertised certain posts of class III and drivers in the local newspaper without following the aforesaid procedure laid down in the circulars dated 3.12.80. On the basis of the complaint received from the affected parties, the State Government directed Dr. Kujur to cancel all the appointments by a teleprinter message. Though it was directed in the said teleprinter message that Dr. Kujur should follow the due procedure of law including the principles of nature justice, but, for the reasons best known to her, services of the petitioner and other alike persons were terminated by Dr. Kujur, without any show cause notice. It is admitted that the said orders of termination on the basis of teleprinter message were quashed by this court in various writ applications. It is their further case that in view of the decision of the High Court, the Government took a decision to hold an enquiry and the Deputy Commissioner, Ranchi was requested to make a detailed enquiry into the appointments done by the then Civil Surgeon. It is their further case that in view of the decision of the High Court, the Government took a decision to hold an enquiry and the Deputy Commissioner, Ranchi was requested to make a detailed enquiry into the appointments done by the then Civil Surgeon. On such direction the Deputy Commissioner by his enquiry dated 2.11.90 found prima facie, that illegal appointments were made by Dr. Kujur. This report has been annexed as annexure A. Show cause notice was served on some of the petitioners who gheroad the residence of Dr. B.N. Prasad and threatened him with dire consequences as a result of which Dr. Prasad became apprehensive and wrote letters on 19.7.94 to take all steps at the level of the headquarters itself. Thereafter, the Health department, Patna called all the records for perusal and for taking final decision and after considering the enquiry report submitted by the Deputy Commissioner (Annexure A) and the show cause reply filed by the petitioners, passed orders of termination. The statements of the petitioners made in para 2 that the Employment Exchange after scrutinizing the applications, sponsored the names of the petitioners to the Civil Surgeon for consideration of their appointment, have been denied by submitting that it is not a fact. Main case of the respondents is that the Selection Committee constituted by the State Government was required to have the following persons the Civil surgeon as its Chairman, Additional Chief Medical Officer and the District Welfare officer as members of the said committee. According to the answering respondents, the Dy. Superintendent of Sadar hospital is not a member of the committee which is to be constituted as per the Government decision and hence the Selection Committee which was constituted by the Civil Surgeon was illegal inasmuch as the persons from Directorate of Health Services/Government were not incorporated as members of the said committee. The respondents, however, have not relied on the existence of clause (2) in the letter no. 16440 dated 3.12.80 of annexure 4. The statement that the petitioners were called for interview and, thereafter, a panel was prepared which includes the names of the petitioners for appointment, has simply been denied by stating that it is not a fact as per annexure A to the counter affidavit. 16440 dated 3.12.80 of annexure 4. The statement that the petitioners were called for interview and, thereafter, a panel was prepared which includes the names of the petitioners for appointment, has simply been denied by stating that it is not a fact as per annexure A to the counter affidavit. According to them, there is no provision of approval by the Director in-Chief as per the circular of the department of Personnel and Administrative Reforms. However, it is admitted that there was mention in circular no. 564/5 dated 26.6.89 about the procedure to be followed by the appointing authority but the Civil Surgeon did not comply with the same. Again, basing reliance on the report of the Deputy Commissioner, Ranchi Annexure A, it has been stated that the civil surgeon should have communicated the number of vacancies in different categories, to the Director-in-Chief and that having not been done, the procedures adopted by Dr. Kujur was palpably wrong. However, the fact that the Health Directorate approved the appointment of the petitioners, has not been controverted. Only it has been stated that there is no official records to show that the Directorate approved the appointment. The answering respondents have stated that approval has to be done in the file/official records and the letter issued from the cell of the Directorate of the Director-in-Chief, by no means, can be said to be a letter of approval. The statement that panel was prepared strictly according to the roster system, has been simply denied without explaining as to how this statement in para 34 of the writ application are incorrect. With regard to the allegation of the petitioners that in spite of the direction of this court in the earlier writ applications no individual scrutiny was made by the concerned authority, it is stated that the orders of termination have been passed after scrutiny of individual cases on consideration of show cause filed by the petitioners. 12. The deponent, Dr. Laxami Choudhary, respondent no. 6 has verified this statement (in para 18 of the counter affidavit) as true to her knowledge without elaborating as to which is the authority who scrutinised the individual cases and considered the show cause of the petitioners as directed earlier by the High Court. Further stand is that no roster register is maintained in the Civil Surgeon office for observing the rules of reservation. Further stand is that no roster register is maintained in the Civil Surgeon office for observing the rules of reservation. The respondents have admitted the settled principles of law and facts stated in para 41 of the writ petition and have stated that the delay before passing the final orders of termination is due to compliance of the procedures as per the observation of this court. 13. Strongly countering the statements made in the counter affidavit the petitioners have stated in their rejoinder that the appointments were made strictly following the guidelines as contained in the circulars dated 3.12.80 and 26.6.89. It has been asserted that the then civil surgeon (meaning thereby Dr. Kujur) had not made any appointment in class IV posts as the drivers are also declared as superior service as mentioned in appendix IV of Part II at page 36 of the Bihar Service Code and thus it is contended that the contention of the respondents that the posts of drivers were to be filled up from the panel of the Deputy Commissioner are false and have been made to prejudice this court. Even before, it is asserted, the drivers were being appointed by the Civil Surgeon cum-Chief Medical Officer, Ranchi. Referring to the contents of circular no. 564(S) dated 26.6.89 (Annexure 2) and the letter of the Health department being no. 22/Misc./5-16/7 dt. 20.1.92 it is asserted that the Civil Surgeon cum-Chief Medical officer is competent to make appointment in class III inasmuch as those two circulars debar the Civil Surgeon cum-Chief Medical Officer to make appointment on the following posts : "(i) X-Ray Technician. (ii) New Grade A. (iii) Laboratory Technician. (iv) T.B. Health Visitor. (v) Physic Therapist. (vi) Occupational Therapist. (vii) Eye Assistant. Thus when Dr. Kujur did not appoint anybody in the prohibited post as mentioned above, it cannot be said that she had no authority to make appointment to the post of class III and class IV. The aforesaid teleprinter message according to the petitioners, were not only issued to Dr. Kujur only, rather to all the civil surgeons in the State directing them to cancel the appointments made since 1.1.90 and in compliance thereof the Civil Surgeon of the various districts terminated the services of the persons all over the State of Bihar who were appointed since January, 1990. Kujur only, rather to all the civil surgeons in the State directing them to cancel the appointments made since 1.1.90 and in compliance thereof the Civil Surgeon of the various districts terminated the services of the persons all over the State of Bihar who were appointed since January, 1990. Whereas the petitioners challenged the said orders of termination before the Ranchi Bench in the aforesaid writ applications, the other employees of Bettiah, Bhagalpur, Patna and Munger etc. challenged the said orders as contained in the teleprinter message before the High Court at Patna and all the writ applications were allowed and thus it is false to say that only those appointments which were made by Dr. Kujur, were to be cancelled as per the teleprinter message. This categorical assertion of the petitioners have not been denied by the respondents. 14. In the aforesaid premises it has to be decided as to whether the appointment of the petitioners were made by the then Civil Surgeon, Dr. Kujur after following the procedure laid down by the State Government or not. There is no denial of the fact that all the Civil Surgeons-cum-Chief Medical Officers of the State of Bihar were authorised to make appointment in class III and IV posts against vacant post after following the procedures prescribed by the Government. This authorisation letter is of Joint Secretary, Health and Family Welfare Department dated 20.1.89. This letter of authorisation was issued keeping in view the circular of the Chief Secretary, Government of Bihar in letter no. 16440 dated 3.12.80 (Annexure 2 to the writ application). Thus when the vacant posts were available, the Civil Suregon-cum-Chief Medical officer, Ranchi pursuant to the aforesaid Government Order, requested the District Employment Exchange Officer, Ranchi to advertise the vacancy in the newspaper and to invite applications from the desirous candidates in the prescribed form through Employment Exchange. This fact is also borne out from annexure 3 of the writ application i.e. CWJC No. 1212/90(R). Thereafter, the appointment committee of the District Level was formed as constituted by the Government and the procedures for appointment were followed and being satisfied, the Director in-Chief, Health Services, Bihar Patna, issued his approval for such appointment by his letter dated 5.12.90. This fact is also borne out from annexure 3 of the writ application i.e. CWJC No. 1212/90(R). Thereafter, the appointment committee of the District Level was formed as constituted by the Government and the procedures for appointment were followed and being satisfied, the Director in-Chief, Health Services, Bihar Patna, issued his approval for such appointment by his letter dated 5.12.90. As suitable candidates as per the merit list were considered by the appointment committee which was subsequently approved by the Director, Health Services, the Civil Surgeon-cum-Chief Medical Officer, issued appointment letters only to those candidates who were selected by the Committee. The candidates on receipt of such letters, joined their respective places of the district and continued to work there. 15. It is also the admitted fact that when the services of the petitioners were terminated pursuant to the teleprinter message, they moved this court in C.W.J.C. Nos. 1329 and 1212 of 1990 (R) and a Division Bench of this court by its order dated 5.11.90 (Annexure 10) quashed the said orders of termination. This court noticed the facts, available on records, that pursuant to the advertisement a panel was prepared and the persons out of the said panel were appointed. These appointments were approved by the Director of Health. The Division Bench was of the view that if the State Government found that there had been any irregularity in making appointment, it could have ordered an enquiry into the matter. It was further found that the said orders of termination by teleprinter message was passed without hearing the petitioners which adversely affected them. The Division Bench was of the view that the respondents could not have terminated the services of the petitioners on the basis of the teleprinter message. The Division Bench was further of the view that if the State Government was of the opinion that the question of application of the petitioners should be enquired, it may do so after giving notice to the petitioners. Pursuant to the order of the High Court after scrutinising the certificates filed by the petitioners, their salaries were released but after lapse of one year again notice was issued to the petitioners to show cause as to why their services should not be terminated. The petitioners filed their show cause and being satisfied the petitioners were allowed to continue in their services and three increments were also given to them. 16. The petitioners filed their show cause and being satisfied the petitioners were allowed to continue in their services and three increments were also given to them. 16. These facts clearly show that after appointment of the petitioners the State Government was of the view that their appointment was made in violation of the Government direction and, as such, it made some enquiry. However, thereafter, being satisfied, not only the petitioners were allowed to continue in their respective posts but increments were also given to them. However, what led the Health department to issue a letter dated 5.5.94 making an enquiry from the Civil Surgeon, Ranchi as to whether the services of the petitioners have been terminated or not and if not, to terminate their services after asking show cause from them, is not clear from the records of the case. Admittedly this order was passed by the Health department after about two and half years after issuing a show cause notice dated 28.8.92 as contained in annexure 12. The Civil Surgeon had no other alternative but to comply with the order of the Health department by issuing another show cause notice to the petitioners on 4.6.94. This fact clearly indicates that from time to time, for the reasons best known to the concerned authority, the petitioners were disturbed. These show cause notices dated 4.6.94 were also became the subject matter of C.W.J.C. no. 1586/94R when the petitioners challenged the said notices. However, another Division Bench on 30.6.94 allowed the petitioners to withdraw the said writ application directing the petitioners to file their respective show cause. As observed earlier, the Division Bench, however, directed the authorities to scrutinise the case of each of the petitioners in accordance with law and for doing so not to be influenced by the order dated 5.5.94 issued by the Secretary-cum-Commissioner of the Health department. This observation was made in view of the submissions of the petitioners that the order dated 5.5.94 amounts to a decision of the authority before the enquiry was made. 17. It is pertinent to mention here that the report of the Deputy Commissioner, Annexure A to the counter affidavit on which much reliance has been placed by Mrs. I. Sen Choudhary, learned S.C.I is dated 2.11.90 whereas the order of both the Division Benches are dated 5.11.90 and 30.6.94. 17. It is pertinent to mention here that the report of the Deputy Commissioner, Annexure A to the counter affidavit on which much reliance has been placed by Mrs. I. Sen Choudhary, learned S.C.I is dated 2.11.90 whereas the order of both the Division Benches are dated 5.11.90 and 30.6.94. In CWJC No. 1329 and 1212 of 1990 (R) the Division Bench noticed that in spite of repeated reminders no counter affidavit was filed on behalf of the Secretary of Health department, Govt. of Bihar. However, annexure 22 annexed to the supplementary affidavit filed by the petitioners, clearly indicates that in C.W.J.C. No. 1212/902 counter affidavit on behalf of respondent no.5, the Civil Surgeon posted at Ranchi Sadar hospital, was filed stating clearly that the appointment in class III and class IV post was duly approved by the Director of Health by his letter dated 5.2.90. 18. Thus, in my view, it is futile for the respondents to argue that the services of the petitioners were terminated through the impugned orders on the basis of the report of the Deputy Commissioner, Ranchi dated 2.11.90. This report was already there when both the Division Benches disposed of the writ applications, as stated above. Similarly it has rightly been argued by Mr. Sinha that the Deputy Commissioner, Ranchi was directed by the State Government to make enquiry in this regard who personally did not make any enquiry and he entrusted the matter of inquiry to Sri Satish Singh Thakur, the Managing Director of Zila Gramin Vikash Adhikaran. I fail to understand as to how when the Deputy Commissioner was directed to make an enquiry himself, he authorised the said Managing Director to do the same. This is in utter violation of the Government direction and this report cannot be the basis of termination of the petitioners from their services. 19. Another pertinent fact to be noted in this regard is to the effect that probably on the basis of the report dated 2.11.90 as contained in Annexure A, the services of the petitioners were terminated by teleprinter message dated 16.5.90. 19. Another pertinent fact to be noted in this regard is to the effect that probably on the basis of the report dated 2.11.90 as contained in Annexure A, the services of the petitioners were terminated by teleprinter message dated 16.5.90. Thus when the termination orders on the basis of teleprinter message were quashed by the Division Bench, with a latitude to the State Government to scrutinise the matter afresh, if so desired, it was incumbent upon the concerned authority to make a fresh enquiry after giving opportunity to the petitioners instead of relying on the report dated 2.11.90 made by the Deputy Commissioner. The respondents have failed to satisfy this court as to whether in view of the order of the Division Bench dated 5.11.90 any fresh enquiry was made by the authority. This itself show, that without applying mind the impugned orders of termination were passed by the concerned respondents which cannot have any sanction of law. However a peculiar stand has been taken by the respondents in their counter affidavit by asserting that pursuance to the decision of this court the State Government directed the Deputy Commissioner, Ranchi to make a detailed enquiry into all appointments made by the then Civil Surgeon Mrs. Dr. Kujur and the Deputy Commissioner in furtherance thereto, submitted his report dated 2.11.90 as contained in annexure A. This statement, in my considered opinion, are nothing but only to mislead the court. When this court passed the first order on 5.11.90 it does not stand to reason as to how the Deputy Commissioner could have submitted his report on 2.11.90 Thus, the argument of Mrs. Sen Choudhary that the instant termination orders have been passed on the basis of annexure A is not sustainable in law and must be rejected. 20. From the impugned orders as contained in annexure 18 it appears that though the petitioners were asked to show cause on certain facts and the petitioners replied to the same, the concerned authority has passed the impugned orders on other grounds. Annexure 15 dated 4.6.94 is a simple copy of the show cause notice, a bare perusal of which will reveal that point no. I, III, IV and V were merely information’s sought from the petitioners reply of which was given by them. So far point no. Annexure 15 dated 4.6.94 is a simple copy of the show cause notice, a bare perusal of which will reveal that point no. I, III, IV and V were merely information’s sought from the petitioners reply of which was given by them. So far point no. II to the effect that the procedures as laid down by letter dated 3.12.80 were not followed is concerned, the same was duly considered by the High Court in earlier writ applications. 21. In this context clause (2) of letter no. 16440 dated 3.12.80 may be looked into which reads thus : "ZILA ASTAR PER MERIT LIST TAIYAR KARNE KE LIYE GATHEETH CHAYAN SAMITTEE KE ADHYACHH SAMBANDH ASTHAPANA KE ZILA ASTRIYA PRAMUKH (DISTRICT HEAD) HONGE OUR USHI ASTHAPANA KE KOYE BARISHTH PADADHIKARI JINHE UNKE ZILA ASTRIYA PRAMUKH MANONIT KARE ESKE SADASYA HONGE. DUSRE SADSYE RHENGE, ZILA KALYAN PADADHIKARI TAKI ANURACHHAN SAMBANDHI SARKARI AIDESH KI MERIT LIST BANATE SAMAY ABHELNA NA HONE PABE." Argument has been sought to be canvassed on behalf of the respondents that this clause of the aforesaid letter was not followed and, as such, the constitution of the whole selection Board was bad. However, it is a fact that the panel prepared by the said selection committee was approved by the Director of Health Department and on the basis of the same the petitioners were appointed. Annexure 7 is a letter by the Director, Health department dated 5.2.90 which shows that he approved the appointment so made by the then Civil Surgeon. In this context the letter of the then Civil Surgeon, Dr. Kujur dated 20.1.90 annexure 20/A addressed to the Director is worth consideration. By the said letter Dr. Kujur sent the merit list of all the candidates for appointment in class III post to the Director. In reply to the same (Annexure 20/A) as stated above, the Director approved the same by his letter dated 5.2.90 (annexure 7). If this be the position, it is too late for the respondents to urge at this stage that the very constitution of the Selection Committee was not proper and, as such, merit list prepared by it cannot be acted upon. 22. Mrs. Sen Choudhary further urged that the Selection Committee ought to have been constituted by the members as per the guideline of the State Government. 22. Mrs. Sen Choudhary further urged that the Selection Committee ought to have been constituted by the members as per the guideline of the State Government. In this connection she has referred to the statements made in para 12 of the counter affidavit. In my opinion, the said argument on behalf of the respondents is nothing but an argument of frustration. There is no denial of the fact that the circular no. 16440 dated 3.12.80 of which I have referred above, prescribes the mode of constitution of Selection Committee and according to it the Chairman of the Selection committee would be the head of the establishment and other two members of the District Welfare officer and any senior. member of the establishment. In the instant case the Selection Committee consisted of the Civil Surgeon-cum-Chief Medical Officer, District Welfare Officer and the Dy. Superintendent of Sadar hospital who was admittedly at that time the senior member of the establishment. Mrs. Sen Choudhary has failed to point out any clause in the said letter which postulates that the officers from the Directorate shall be member of the Selection Committee. 23. Annexure 20/A itself show that the Committee was constituted of the following members; the Civil Surgeon-cum-Chief Medical Officer, Ranchi as its Chairman, Additional Chief Medical Officer, Ranchi/Dy. Superintendent of Sadar hospital and District Welfare Officer as members. The letter of Dr. Kujur clearly shows that Dr. Patel, Chief Medical Officer, expressed his inability to participate in the selection because on the same month he was to retire. Similarly, Dr. J. Sahay, Addl. Chief Medical Officer was transferred for which he remained absent from the Headquarters and, as such, the Dy. Supdt. Dr. A.K. Chatterjee was included in the said committee. In this view of the matter when Dr. Patel and Dr. Sa hay were not available for taking part in the selection, Dr. Chatterjee being the next senior man, was taken into the committee which prepared the panel. Not only this, annexure 20/A clearly shows that Dr. Kujur also sent the details of the number of vacancy, then existing and the persons appointed against those vacant posts including the vacancy available for scheduled tribes and scheduled castes etc. Thus when this letter of Dr. Not only this, annexure 20/A clearly shows that Dr. Kujur also sent the details of the number of vacancy, then existing and the persons appointed against those vacant posts including the vacancy available for scheduled tribes and scheduled castes etc. Thus when this letter of Dr. Kujur enclosing the panel was placed before the Director which was approved by the Director, it is now too late for the respondents to urge that the committee was not properly constituted and the policy of reservation was not followed. Moreover, from the different orders of the High Court referred to above, it appears that all these contentions were raised before the High Court but negatived by it setting aside the earlier termination orders. The High Court directed the State Government to make a fresh enquiry if so advised. That having not been done, in my view, the respondents cannot be allowed to urge at this stage that the petitioners were appointed in an irregular manner. 24. In the case of Prem Singh and others vs. Hariyana State Electricity Board and others reported in 1996 (4) SCC, 309, even their lordships held that appointment though strictly speaking not justified, in the peculiar facts and circumstances of the case invalidating them in entirety - not just and equitable. This decision supports the alternative contention of Mr. Sinha that even assuming that there was some irregularity and not illegality in constitution of the Selection Board, the petitioners who were admittedly appointed as early as in the year 1990, cannot be terminated on this ground alone. I have already discussed above, that the panel prepared for appointment by Dr. Kujur was duly approved by the Director of Health Services and pursuant to that approval, the petitioners were appointed. However, when their services were terminated earlier, they had approached this court more than once and the High Court, after considering the submissions of the parties, quashed the said termination orders against which the respondents/State did not go in appeal and thus those orders have attained their finality. However, when their services were terminated earlier, they had approached this court more than once and the High Court, after considering the submissions of the parties, quashed the said termination orders against which the respondents/State did not go in appeal and thus those orders have attained their finality. I have also found earlier that pursuant to the order of the High Court the State Government did not make any further enquiry in respect of the selection and appointment of each of the petitioners and their main case is based on the report of the Deputy Commissioner (Annexure A) which is much before this court passed its earlier orders considering the same. 25. Even in the case of Sardara Singh VS. State of Punjab and others reported in AIR 1991 SC 2248 their lordships although found that the procedures adopted for appointment were irregular but held that the same did not vitiate the selection of the candidates ultimately made by the Committee. 26. In this context I may usefully refer to the decision in the case of H.C. Putta Swami and others vs. Hon'ble Chief Justice of Karnataka reported in 1991 (2) PLJR, (SC) 77 in which relying upon the decision of Miss Sahaida Hassan vs. State of U.P. ( AIR 1990 SC 1381 ), it has been held that even in case of illegal appointment the same shall not be terminated if the employees have put in service for a number of years. I am in respectful agreement with the view of their lordships. 27. In the result, both the writ applications are allowed and the impugned orders of termination dated 25.7.96 as contained in Annexure 18 series of CWJC no. 3973/96 (R) and Annexure 12 of C.W.J.C. No. 4111/96 (R) are hereby quashed. Consequently the petitioners will be deemed to be in continuous service and they shall be paid their salaries from the date of their termination orders as contained in the impugned annexures. However, there will be no order as to costs.