Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 533 (PAT)

Hemant Kumar Karn v. State Of Bihar

2008-03-24

MIHIR KUMAR JHA

body2008
Judgment 1. In this writ application, the petitioners have assailed the order dated 3.9.2005 whereby and whereunder an earlier decision in their favour dated 11,8.2005 has been cancelled/recalled. 2. Mr. Chitranjan Sinha learned senior counsel appearing on behalf of the petitioners submits that the impugned order dated 3.9.2005 is fit to be set aside only on the ground of its being in violation of principles of natural justice. Elaborating this aspect, he has submitted that authorities were satisfied with regard to the working of the petitioners continuously for a period of more than 240 days and thus in view of the instructions given to the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur they were sought to regularized in services by an order dated 11.8.2006 and thus if for any reason whatsoever such order was sought to be revoked/cancelled as was done by the impugned order, the petitioners were entitled to a show cause notice and/or an opportunity of hearing. 3. Learned counsel for the State with the help of the counter affidavit has sought to explain that the entire order of the regularization of the petitioners dated 11.8.2005 was itself in violation of the Government instruction and that there was no decision of the Government to regularize any person only on completion of 240 days of service. 4. This Court on the basis of an admitted position that the impugned order had been passed without notice and/or opportunity of hearing cannot permit the Respondents to take away the vested rights of the petitioners. Such order visit each and every petitioner civil and evil consequences and they ought to have been not passed in a mechanical manner. The reason disclosed in the impugned order that such earlier order of regularization of service of the petitioner was passed due to procedural error also does not inspire confidence. This Court in normal circumstance could not have interfered in the impugned order canceling absorption of the petitioners by way of regularization of their services, but Laving noticed that there is an apparent violation of principles of natural justice, it cannot permit the respondents to adopt the course of procedure of post facto hearing because that will amount to only observing an empty formality. In that view of the matter, the impugned order dated 3.9.2005 is quashed only on the ground that the same has been passed without issuing show cause notice and/or affording opportunity of hearing to these petitioners. 5. By virtue of quashing of the impugned order dated 3.9.2005, all the petitioners would be reinstated in service for the time being but they would not get any monetary benefit till a fresh decision is taken by the Civil Surgeon in accordance with law and in the light of the directions being given in this order. The petitioners should be given a show cause notice by the authorities within a month of receipt/ production of a copy of this order disclosing reasons for coming to a prima facie conclusion that the order dated 11.8.2005 suffers from any patent illegality and therefore, it requires to be recalled/set aside. The petitioners after being served such a show- cause notice will file show cause reply within a period of one month and thereafter the Civil Surgeon-cum- Chief Medical Officer, Samastipur will pass (sic) in accordance with law in next three Chief Medical Officer, Samastipur comes to a conclusion that the order of regularization of services of the petitioners dated 11.8.2005 cannot be sustained on any ground whatsoever and has to be set aside and/or revoked he would do so only after considering the plea of the petitioners that may be taken by them in their respective show cause reply and by rejecting them by a speaking reasoned order. 6. It goes without saying that the present Civil Surgeon in case he chooses to cancel the order of regularization of petitioners dated 11.8.2005 on a ground that it was illegal, he would be under obligation to submit a self-contained report against the Civil Surgeon-cum-Chief Medical Officer, Samastipur who had passed such a patent illegal order dated 11.8.2005. In case the Civil Surgeon-cum-Chief Medical Officer, Samastipur who had passed the order dated 11.8.2005 has already been transferred and/or gone out of service, in that event present Civil Surgeon-cum-Chief Medical Officer will report the matter to the State" Government for taking disciplinary appropriate action against his predecessor Civil Surgeon, Samastipur and the State Government thereafter will take punitive action within six months against all the concerned authorities including the Civil Surgeon who had been responsible in passing the order dated 11.8.2005. 7. 7. The Civil Surgeon, Samastipur, in the event of rejection of the case of the Petitioner for restoring the order of their regularization dated 11.8.2005, should independently consider and decide as to whether there is need to fill up the 28 vacant sanctioned Ciass-IV posts. He must take into account that there are still 28 vacancies of regular Class-IV post in the surgency of Samastipur and the petitioners may not have the right of being regularized on those posts but at least they will have right to be considered against those posts in accordance with law. Accordingly this Court directs the present Civil Surgeon, Samastipur to take immediate steps for filling up all those 28 posts, if they are still vacant and sanctioned, within a period of six months after affording opportunity to all eligible persons including the petitioners and in course of such consideration while Civil Surgeon will strictly follow the relevant Government instruction but he will definitely give some weightage and preference to the experienced persons like the petitioners provided they furnish sufficient proof of their satisfactory continued service. The modality of such appointment against the vacant and sanctioned 28 posts must be however uniform, transparent and in accordance with the mandate of Articles 14 and 16 of the Constitution of India and those 28 vacant sanctioned Class-IV posts must be filled up within a period of six months. 8. With these aforementioned observations, this application is disposed of.