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2008 DIGILAW 108 (PAT)

Prabha Kumari v. State Of Bihar

2008-01-18

CHANDRAMAULI KR.PRASAD, RAJESH BALIA

body2008
Judgment 1. This appeal is directed against the order of the learned Single judge passed on 19.9.2007 in C.W.J.C. No. 14939 of 2006, whereby the writ petition was dismissed in the absence of the learned counsel for the petitioner on merit. 2. Heard learned counsel for the parties. 3. Having perused the impugned order, we find that writ petition was not dismissed for want of prosecution, which course in our opinion ordinarily ought to have been adopted by a Court, when there is none in the court to prosecute the case on behalf of the petitioner. In that event, the petition at best could have been dismissed for want of prosecution. 4. Be that as it may, looking to the order and in the facts and circumstances of the case, we propose to decide the controversy on merit of the case itself to which the learned counsel have agreed to. 5. The undisputed facts are that petitioner had been admitted to Auxiliary Nurse Midwifery Course, for short ANM of 18 months in the year 1986 conducted by the Bihar Nurses Registration Council, Patna, hereinafter referred to as the council and were declared passed in October, 1987 Examination vide Mark-sheet dated 30.1.1988 in the regular course and after that, she was appointed as ANMs in August, 1988. 6. However, it appears that said Council revised the result of October, 1987 ANM Examination and published the revised result vide memo dated 21.8.2004 in compliance of the order of this Court dated 1.4.2004 passed in C.W.J.C. No. 8444 of 1999 and analogous cases which were filed by other successful candidates. In the revised result, as per their marks-sheets dated 24.8.2004, the petitioner appellant was declared fail in Community Health Nursing II (Paper-Ill) and as a consequence thereof, petitioner was asked to show-cause by order dated 8.9.2004 and preventing her from functioning and stopping her salary, with immediate effect till the decision to be taken by the respondent. 7. It appears that irr compliance of the show-cause notice, writ petitioners-appellants filed their show-cause on 16.9.2004. No decision was taken by the respondents until 7.9.2006. Respondent no. 3 passed order discharging her from service as she was declared fail in the October, 1987 Examination. 8. It further appears that C.W.J.C. No. 12887 of 2004 (Rajbanshi Devi & Ors. 7. It appears that irr compliance of the show-cause notice, writ petitioners-appellants filed their show-cause on 16.9.2004. No decision was taken by the respondents until 7.9.2006. Respondent no. 3 passed order discharging her from service as she was declared fail in the October, 1987 Examination. 8. It further appears that C.W.J.C. No. 12887 of 2004 (Rajbanshi Devi & Ors. vs. The State of Bihar & Ors.) and analogous petitions, were brought before this Court which related to show-cause notices issued as a consequence of revised result and subsequent order passed. This Court disposed of writ petitions by order dated 7.9.2006 with following directions: "xxx- Instead of going into the calculation of marks of each of the petitioner to find out whether same is in accordance with the Regulation or not and whether they have been rightly or wrongly shown as fail, it is deemed expedient to refer this dispute to the Bihar Nurses Registration Council, the authority that conducted the examination. The same authority shall also examine whether the petitioners who have been shown as failed candidates were entitled for any grace marks or not and whether award of such grace marks would have made any difference to their result. For these two purposes the matter is remanded to the Bihar Nurses Registration Council, more particularly to Respondent No. 3, who shall get such exercise completed within a period of two weeks from the date of production/ communication of a copy of this judgment/order and the results of such exercises shall be kept available in the office of Respondent No. 3 for inspection by the petitioners or their counsels for a period of one week thereafter. In case, some of the petitioners who have been declared fail and are willing to take annual, supplementary or compartmental examination and if the Regulations, Rules or Policies so permit, the authorities shall permit such petitioners to take the next examination. While considering such claim of the petitioners for taking further examination the authorities shall be well advised to count the time limit for taking the next examination from the date of publication of the results pursuant to this order and not from any other date." 9. The above decision has attained finality. 10. While considering such claim of the petitioners for taking further examination the authorities shall be well advised to count the time limit for taking the next examination from the date of publication of the results pursuant to this order and not from any other date." 9. The above decision has attained finality. 10. In pursuance of the above order of this Court, in the first instance, on considering the directions, result of the candidates were declared by providing grace marks, but in that exercise, she did not succeed. After aforesaid exercise, in terms of the alternative direction issued by this Court as aforesaid, the Council arranged for taking supplementary/compartmental examination for candidates who were initially declared pass, but were declared fail as per revised results after almost two decades. In this examination, such candidates were to appear only in such paper in which they were declared fail. 11. Admit Cards was issued to the writ petitioner-appellant for appearing at such supplementary/compartmental examination to be held in April, 2007 in which she appeared, and declared pass vide mark-sheets dated 29.6.2007. 12. Thus, on compliance of direction issued by the Court as noticed above, the petitioner retained her result of passing ANM Examination, 1987, albeit with supplementary. 13. It appears that the date on which the judgment was passed by the learned Single Judge in C.W.J.C. No. 12887 of 2004 and analogous cases as aforesaid, termination orders of the writ-petitioners were issued by the respondents rejecting their show-cause treating them fail in October, 1987 Examination. 14. It is in the aforesaid circumstances, writ petitioner-appellant had filed her writ petition originally challenging the orders of restraining her from doing duty, stopping her salary and on her service being terminated, she also sought a direction for her re-instatement in service with all consequential benefits. 15. The learned Single Judge dismissed the writ petitions vide order dated 19.9.2007 stating therein that the writ petitioner did not possess the minimum educational qualification for the appointment and as such, the impugned order dated 7.9.2006 cannot be faulted. 16. 15. The learned Single Judge dismissed the writ petitions vide order dated 19.9.2007 stating therein that the writ petitioner did not possess the minimum educational qualification for the appointment and as such, the impugned order dated 7.9.2006 cannot be faulted. 16. From perusal of the order under appeal, it is apparent that the attention of the learned Single Judge was not invited to the direction issued by order dated 7.9.2006 of this Court passed in C.W.J.C. No. 12887 of 2004 and analogous cases, whereby the Council had been directed to declare revised result firstly by providing grace marks and thereafter to arrange for supplementary or compartmental examination to the main examination, if so required. It was also directed to count the time limit for taking the next examination from the date of publication of the results pursuant to that order by providing grace marks and not from any other date. 17. We have noticed above that in pursuance of the order dated 7.9.2006 passed by this Court, the petitioner was permitted to appear in the examination of April, 2007 and result was published in which she was declared pass and certificate was issued to them showing pass in Revised Auxiliary Nurse Midwifery Examination. Thus, petitioner cannot but be deemed to have passed Annual Examination, 1987 with supplementary in terms of direction of this Court dated 7.9.2006 which had attained finality. Natural corollary of above is that the very foundation of impugned order dated 7.9.2006 terminating service of the petitioner became extinct. 18. As a result of aforesaid, the impugned order dated 19.9.2007 passed by the learned Single Judge loses its basic premise of petitioner having failed. The order dated 7.9.2006 passed by the respondents terminating the services of the writ petitioners-appellants with retrospective effect, cannot be sustained and is fit to be set aside and is hereby set aside, and the petitioner appellant is to be reinstated. 19. About emoluments, we are of the opinion that the candidate who was declared fail in 2004 by the Council in terms of the direction of this Court firstly before any decision was taken about termination of service, an order made restraining the petitioner from continuing to work. This order cannot automatically result in termination of petitioners service or forefeiting his/her salary. This order cannot automatically result in termination of petitioners service or forefeiting his/her salary. She was also directed to show because as she was declared fail, why her service be not terminated and passed order of debarring them from work and stopping their salary, which is illegal. 20. It appears to us that the methodology adopted by the respondents was unknown to the law because time and again, the Supreme Court has laid down principles in this regard, while considering employers right to suspend a person. Merely, because the employer directs an employee not to work without terminating master servant relationship, the contract of service alongwith its terms and condition subsists and emolument for such period the employer does not want to take work from such employee cannot be denied in the absence of any rules. In the present case, no order of suspension or termination was made. But petitioner-appellant was merely directed not to discharge his duties until final decision is taken. Such an order neither amounts to suspension nor termination. Hence no suspension of emoluments could take place. 21. A learned Single Judge of this Court had the occasion to consider this matter in C.W.J.C.No.10439 of 1999 (Smt. Nilam Kumari & Anr vs. The State of Bihar & Ors.) decided on 27.1.2005 in which during the pendency of the writ petition, a like show cause notice as in the case of present appellant, was issued on 8.1.2004 and said notice was successfully challenged by the said Nilam Kumari in above writ petition. The Court reached the same conclusion as we have and held that she is entitled for the dues of her salary which must be paid at an early date. In the present case, the decision of termination was taken by order dated 7.9.2006, therefore, the petitioners-appellants are entitled to get their salary from 8.9.2004, the date on which the show cause was issued, until the date of passing of the impugned order of termination dated 7.9.2006. 22. However, from 7.9.2006 until the passing of this order, since the order of termination was made on the ground of her revised result of ANM considering her to be ineligible, which on the existing circumstance was an existing fact, she be not allowed actual emoluments of the intervening period from 7.9.2006 until the date of this order. 22. However, from 7.9.2006 until the passing of this order, since the order of termination was made on the ground of her revised result of ANM considering her to be ineligible, which on the existing circumstance was an existing fact, she be not allowed actual emoluments of the intervening period from 7.9.2006 until the date of this order. However, the entire period from 8.9.2004 until reinstatement as per above directions, will be counted as continuity of service and other consequential benefits. 23. As a result, appeal is allowed. Judgment under appeal is set aside. 24. For the reasons stated aforesaid, writ petition is allowed. The order terminating service dated 7.9.2006 is quashed and petitioner is directed to be reinstated with continuity of service. Order dated 8.9.2004 is quashed to the extent it stops salary during pendency of show cause. As a result of quashing of order dated 7.9.2006 on reinstatement, the petitioner-appellant shall not get actual cash benefit between 7.9.2006 to the date of this judgment but the entire period from 8.9.2004 until reinstatement shall be treated to be continuity in service. No costs.