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2012 DIGILAW 1619 (PAT)

Asha Kumari v. State of Bihar

2012-12-04

RAVI RANJAN

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. Through this writ application, the petitioner seeks quashing of the order contained in Memo No.166(6) dated 9.2.2007, by which a decision has been taken by the Director- in- Chief, Health Services to pay the salary of the petitioner only in case it is established that she had worked during the concerned period. Thereafter, the petitioner challenges the consequential order dated 26.11.2007 appended as Annexure-4, by which it has been held that since petitioner did not work during the concerned period as A.N.M., therefore, no salary can be paid for the period during the petitioner had remained ousted from office in view of the termination order having been passed against her. 3. It is submitted on behalf of the petitioner that the petitioner along with others, after completion of training as A.N.M. in the year 1992-94 and after registration, had applied for appointment pursuant to an advertisement. The petitioner’s case along with others was considered by the Committee duly constituted for the same and altogether 75 persons were selected and subsequently appointed. However, after about five years, all the persons who were appointed pursuant to the aforesaid advertisement were terminated from service on the ground that at the time of their appointment, the reservation policy was not followed and as such the appointment was bad. Some of the affected persons had earlier preferred C.W.J.C. No.11544 of 1997, which would be apparent from the impugned order as contained in Annexure-3 as well as C.W.J.C. No.352 of 1998, which were disposed of after quashing the termination order with a direction to the concerned respondent to examine the matter afresh in light of the order passed in C.W.J.C. No.3792 of 1995, 6087 of 1997, 598 of 1997 and 648 of 1997 after giving proper notice to the petitioner. Thereafter, notice was published in newspaper and all the appointed persons in the year 1994 were directed to appear on 23.8.2008 with individual show cause. However, again similar order of termination of all the persons including the petitioner was taken. Some of the aggrieved persons preferred C.W.J.C.735 of 1999, which was allowed on 6.10.1999 holding that while passing the impugned order, the show cause was not considered by the competent authority. However, again similar order of termination of all the persons including the petitioner was taken. Some of the aggrieved persons preferred C.W.J.C.735 of 1999, which was allowed on 6.10.1999 holding that while passing the impugned order, the show cause was not considered by the competent authority. It was further held that the ground taken for cancelling the appointment regarding non observance of the reservation policy would not be tenable as there was no fault on part of the petitioner. 4. The writ petition was allowed with an observation that the petitioner would be at liberty to join the places where they had worked before passing of the termination order. Petitioner had also challenged her termination order in C.W.J.C. No.875 of 1999, which was also disposed of on similar terms. Thereafter, the petitioner was allowed to join but she has not been given salary for the period during which she had remained ousted from the office due to termination order. Aggrieved thereby the petitioner had preferred C.W.J.C. No.7638 of 2000, which was disposed of vide order dated 23.5.2006 contained in Annexure-1. While passing aforesaid order, a learned Single Bench of this Court had observed that the petitioner has not been able to show any order that her termination for the aforesaid period was set aside by the High Court. However, she was given liberty to file detailed claim before the Secretary, Health Department, who was directed to dispose of the same after verification as to whether termination order during the aforesaid period was set aside by the High Court. Thereafter, the petitioner filed M.J.C. No.2433 of 2007 for initiation of a proceeding of contempt against the respondents as the aforesaid order dated 23.5.2006 passed in C.W.J.C. No.7638 of 2000 was not being complied. However, it has been stated that during the pendency of the contempt matter, the impugned order rejecting the claim of the petitioner (Annexure-3) was passed by the authorities, therefore, the contempt application was dismissed. However, the petitioner was given liberty to challenge the aforesaid order in a separate appropriate proceeding. Hence, this application has ben filed by the petitioner. 5. Two counter affidavits have been filed on behalf of the State respondents. State was directed to produce the copy of the order passed in C.J.W.No.735 of 1999 in terms of which the petitioner’s case bearing C.W.J.C. No.875 of 1999 was also disposed of. Hence, this application has ben filed by the petitioner. 5. Two counter affidavits have been filed on behalf of the State respondents. State was directed to produce the copy of the order passed in C.J.W.No.735 of 1999 in terms of which the petitioner’s case bearing C.W.J.C. No.875 of 1999 was also disposed of. The order has been brought on record as Annexure-A series. It has been admitted by the State that vide order dated 6.10.1999 passed in C.W.J.C. No.735 of 1999 preferred by Sandhya Kumari and others Vs. The State of Bihar and others, the termination order was quashed and set aside and the petitioner’s writ application bearing C.W.J.C. No.875 of 1999 was also allowed in similar terms. 6. As a result, admittedly, the petitioner’s termination order also stands quashed. That being the situation, now it has to be seen as to whether the direction given in the order dated 23.5.2006 passed in C.W.J.C. No.738 of 2000, filed by the petitioner for grant of salary during the period of termination, has been complied fully or a correct decision has been taken by the authorities vide Annexure-3 or not. There was a clear direction to the authorities vide aforesaid order as contained in Annexure-1 that they were obliged to verify as to whether the termination order during the aforesaid period was set aside by the High Court or not and thereafter to pass appropriate order. From the order impugned, it does not appear that the order dated 8.12.1999 passed in C.W.J.C. No.875 of 1999 has been considered by the authority as no finding has been recorded that in compliance of the aforesaid order, the petitioner was reinstated. 7. However, now from the counter affidavit, it becomes quite clear that the petitioner’s termination order against the petitioner was set aside and petitioner was reinstated at the strength of the orders, which have been passed by this Court as contained in Annexure-A series to the counter affidavit filed today. That being the situation and in view of the fact that in C.W.J.C. No.735 of 1999, it has categorically been observed by this Court that even if it is held that the reservation policy was not followed the latches were on the part of the respondents and not on the part of the petitioner. 8. That being the situation and in view of the fact that in C.W.J.C. No.735 of 1999, it has categorically been observed by this Court that even if it is held that the reservation policy was not followed the latches were on the part of the respondents and not on the part of the petitioner. 8. Thus, it can be safely construed that the petitioner has been ousted from the office only in view of certain latches which were on part of the respondents and not on part of the petitioner. That being the situation, since petitioner was illegally ousted from the office due to the latches on the part of the respondents, she would be entitled for payment of salary for the period of termination also along with other consequential benefits. 9. In above view of the matter, this writ application is allowed and the order as contained in Annexures 3 and 4 are quashed and set aside. The respondents are directed to immediately calculate the arrears of the salary of the petitioner for the period during which she remained out of the office in view of her termination along with other consequential benefit. The amount, thereafter, should be immediately paid to the petitioner. It is expected that the authorities would complete this exercise within three months from the date of receipt/production/communication of this order to the concerned authority, failing which the petitioner would be entitled for simple interest at the rate of 12% to be calculated from the date when the amount became due till the date of its final payment.