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Jharkhand High Court · body

2020 DIGILAW 1021 (JHR)

Arun Kumar Singh v. State of Jharkhand

2020-10-20

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. Both these writ applications are interconnected as such, the same are heard together and disposed of by this common judgment. 3. In both these applications the petitioners have challenged the order of termination dated 24.12.1993, passed by the then In-charge-Medical Officer Referral Hospital, Garu, Palamau whereby the service of writ petitioners have been terminated without giving notice to show-cause and also for a direction to reinstate the petitioners to their original post with full back wages and consequential benefits. 4. The case of the petitioners is that on 16.09.1989 the respondents came out with an advertisement for filing up different posts which had fallen vacant. The said advertisement was published in the daily Newspaper and pursuant to that the petitioners applied for the post of Accounts Clerk-cum-Storekeeper and Computer Clerk and accordingly, they were appointed on 22.12.1989 and made their joining before the respondent. The further case of the petitioners is that all of a sudden, salary of the petitioners and others were stopped without any rhyme and reason and as such, similarly situated persons whose salary were stopped by the order of Deputy Commissioner, on the ground that their appointment was illegally made, filed writ application before the Patna High Court which was registered as C.W.J.C No.1956 of 1990 (R) along with analogous cases. The Patna High Court after hearing the parties disposed of the matter vide its order dated 5th September 1991, directing the respondents to pay salary to the petitioners of that case for the period they actually worked. The Court further held that if any illegal or irregular appointment has been made, then the concerned authority will issue notice and after giving notice of personal hearing, they will take necessary decision. Even after the said decision when the salary of the petitioners were not paid, the petitioners represented before the authority and finally the present petitioners along with others filed a writ application being C.W.J.C No.2322 of 1991(R) and the same was disposed of in terms of the order dated 31.10.1991 whereby this Court disposed of the case by directing the respondents to take a decision by giving reasonable opportunity of show-cause as to why the appointments cannot be treated as legal. Thereafter, an order dated 30.05.1992 was issued under the signature of Commissioner and Secretary Department of Health Bihar regarding illegal appointee whose appointment was found to be illegal on enquiry on different grounds. However in the said order the name of the petitioners does not figure from which it would transpire that the petitioners were legally appointed. The further case of the petitioners is that even the Civil Surgeon-cum-Chief Medical Officer, Palamau issued an order regarding persons who were appointed illegally and falls under the category of forged and illegal appointment. However, even in this order the name of the petitioners does not figure. The further case of the petitioners is that even though the name of the petitioners were not figured in the list of illegal appointee but they were not receiving any salary and finally they filed writ application being C.W.J.C. No.385/1994 (R) which was disposed of on 26.04.1994 for payment of salary if the petitioners are working and not terminated. Pursuant to the said order the petitioners were paid salary for the period of December, 1991 to 23.12.1993. In the case of similarly situated persons who moved before the Patna High Court in CWJC No.2950 of 1991(R), the Full Bench of Patna High Court vide order dated 21.04.1992 had observed that as there is no formal order of termination; directed the respondent to give show-cause for personal hearing to the petitioners of that case, if the respondents are intended to terminate their services on the ground of illegal and irregular appointment. The further case of the petitioner is that it is only the petitioner no.1 of W.P.(S) No.652 of 2008 was issued show-cause notice on 04.06.1994 stating therein that appointment of petitioner no.1 was illegal and directed him to file show-cause notice, to which he has duly filed reply. However, no action was taken by the respondent and the petitioners filed representation before the Civil Surgeon for payment of their salary and to allow them to work in service. Thereafter, the petitioners filed several other representations including a representation to the Secretary, Health Bihar. However, no action was taken by the respondent and the petitioners filed representation before the Civil Surgeon for payment of their salary and to allow them to work in service. Thereafter, the petitioners filed several other representations including a representation to the Secretary, Health Bihar. The further case of the petitioners is that they did not receive any termination order but it is only when counter affidavit was filed by the Respondents; the termination order of petitioners were annexed and thereafter, an amendment petition was filed which was allowed by this Court and the termination order has been impugned as Annexure-2 to the instant application. 5. Mrs. M.M. Pal, learned senior counsel for the petitioners submits that the petitioners of both these writ applications have been appointed after following due procedure of law and pursuant to an advertisement which has been annexed as Annexure-1 to the I.A. and after due process of selection they have been appointed but for the reasons best known to the respondents, they were not paid any salary for which they moved from pillar to post and filed writ applications. She further contended that the order of termination is ante-dated inasmuch as the show-cause notice which was issued is after the date than the order of termination. She further contended that Annexure-6 and 7 to the writ application is the list of persons whose appointment was declared illegal, however, the name of the petitioners does not figure in those lists. She further submits that the judgment passed in CWJC No.1956 of 1990 and analogous cases is binding on the respondents wherein the impugned orders were set aside and it was directed that the petitioners must be given reasonable opportunity to show-cause as to why their appointment cannot be treated as legal and the Secretary, Health Department was directed to dispose of the issue and pass a final speaking order. However, the petitioners were never show-caused. She specifically states that no show-cause notice was served against the petitioners except petitioner no.1 of W.P.(S) No.652 of 2008. She reiterated that the termination orders were never served to the petitioners; rather it was filed with the counter affidavit in W.P. (S) No.652 of 2008 and it has been held by the Hon’ble Apex Court in the case of Union of India & Ors. Vs. Dinanath Shantaram Karekar & Ors. She reiterated that the termination orders were never served to the petitioners; rather it was filed with the counter affidavit in W.P. (S) No.652 of 2008 and it has been held by the Hon’ble Apex Court in the case of Union of India & Ors. Vs. Dinanath Shantaram Karekar & Ors. reported in AIR 1998 S.C 2722 that if the termination order is not served to the delinquent employee and only kept in the file of the respondent cannot be treated as a valid termination. She further submits that the instant application is pending since 2015 and the petitioners were interested for work inasmuch as the writ application was initially filed for a direction to allow them to work, however they were not allowed to work. She further contended that the action of the respondent authority in not reinstating the services of the petitioners is illegal and against the settled principles of law as laid down in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya & Ors. reported in 2013 (10) SCC 324 and Roop Singh Negi Vs. Punjab National Bank & Ors. reported in (2009) 2 SCC 570 . She contended that the petitioners are not only entitled for reinstatement rather they are also entitled for full back wages in terms of law laid down in the case Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 . She contended that the judgment relied upon by the respondents as reported in 2019 (4) JLJR Supreme Court 323 is not applicable to this Court as there was no enquiry report by the Enquiry Committee that there appointment was forged, by back door method and their certificates were forged as there was no finding to that effect in the instant case. She concluded her argument by submitting that the termination orders with respect to each petitioner is bad in law, inasmuch as the procedure for termination was not followed. 6. A counter affidavit has been filed in the instant case wherein it has been specifically stated that the petitioners’ salary was stopped by order of Deputy Commissioner, Palamau alleging therein that they were appointed illegally. 6. A counter affidavit has been filed in the instant case wherein it has been specifically stated that the petitioners’ salary was stopped by order of Deputy Commissioner, Palamau alleging therein that they were appointed illegally. The petitioners moved before the Patna High Court in CWJC No.1956 of 1990 for payment of salary and the Patna Court disposed of the said writ application along with analogous cases vide its order dated 05.09.1991 with a direction to the Secretary, Department of Health, Bihar, Patna to take a decision whether appointment of the petitioners are legal or not, regular or irregular after giving reasonable opportunity of hearing. In pursuant to the aforesaid direction, show-cause notice were issued to all persons who were appointed after 01.01.1980 at the time of one Dr. A.A. Mallick, the then Deputy Director, accordingly 180 persons have filed their reply to the show-cause notice but the present petitioners have not filed their reply. The Secretary, Department of Health, Bihar, Patna personally heard all the persons who appeared before him at Daltonganj on 14.03.1992 but the petitioners neither appeared nor filed any reply. The Secretary after hearing all the persons passed an order that all the appointment in questions are illegal as the same were not made in accordance with Rule and Regulation as no advertisement was published, no roster clearance was taken and no interview was conducted. It has been further stated in the counter affidavit that at the time of Dr. A.A. Mallick, Deputy Director, several forged appointments were made in mass scale; accordingly matter was sent to the Vigilance Department for enquiry. The Vigilance Department found that since 1980 appointments were made in mass scale at the instance of Dr. A.A.Mallick, Deputy Director, (Tuberculosis) without following procedure of appointment. Accordingly, Vigilance submitted its report to the Health Department for necessary action. In terms of direction passed by High Court in several cases as well as in the light of the recommendations made by the Vigilance, a general notice by way of show-cause was published in the daily Newspaper for which the date of personal hearing was fixed in between 17.08.1992 to 29.9.1992. The aforesaid notices were related with those persons who were appointed after 01.01.1980 in Class-III and Class IV post. Pursuant to the aforesaid notice by way of paper publication, several persons appeared but the petitioners did not appear at the time of hearing. The aforesaid notices were related with those persons who were appointed after 01.01.1980 in Class-III and Class IV post. Pursuant to the aforesaid notice by way of paper publication, several persons appeared but the petitioners did not appear at the time of hearing. The Secretary, Health Department, Bihar, Patna after hearing all the persons who appeared before him as well as after going through the entire records passed the order that “all the appointments made after 01.01.1980 are illegal and in para-13, 14 and 15 of its order it was specifically mentioned that the persons who were appointed in the same process and not filed their show-cause, their services are also illegal and accordingly directed to the controlling authority of those persons to terminate them with immediate effect”. The said order was issued vide memo no.528 (11) dated 30.04.1993 and the same was communicated to the Civil Surgeon-cum-Chief Medical Officers, Palamau who communicated the same to other authorities including the In-charge-Medical Officer Referral Hospital, Garu for taking appropriate action in terms of the direction given by the Secretary, Department of Health, Bihar Patna. It has been specifically stated in the counter affidavit that altogether nine persons including the petitioners were illegally appointed at the time of Dr. A.A Mallick, Deputy Director but no action has been taken against these persons because at the relevant time one Dr. Arun Kumar Sahay, In-charge Medical Officer, Garu, who was the father of one of the employee namely Anup Kumar, allowed the petitioners and others to continue in their service. At this stage, it is pertinent to mention here that this specific statement has not been denied specifically. It has been further indicated that after the transfer of said Dr. Arun Kumar Sahay, all the nine persons including petitioners who were illegally appointed were removed from service by the In-charge Medical Officer, Referral Hospital, Garu vide letter no.332 dated 24.12.1993. The petitioners again moved before the Hon’ble Court in CWJC No.385 of 1994 (R) which was disposed of with a direction to pay the salary, if the petitioners are working and not terminated. 7. Learned counsel for the respondent vehemently opposed the prayer of reinstatement and submits that when the initial appointment itself is illegal, invalid and without following the procedure, then reinstatement of such appointment is against the settled principle. 7. Learned counsel for the respondent vehemently opposed the prayer of reinstatement and submits that when the initial appointment itself is illegal, invalid and without following the procedure, then reinstatement of such appointment is against the settled principle. He further submits that the service of the petitioners was lawfully terminated regardless of the fact that neither they participated in the same nor submitted reply to the show-cause as because Para 6 of the order dated 30.04.1993 categorically states that all the appointments were illegal because no advertisement was issued, no roaster clearance was taken, no interview was conducted and reservation policy was not implemented. Learned counsel reiterated that during the time of Dr. A.A. Mallick forged appointment was made in mass scale and the same was investigated by the Vigilance Department who submitted a report and pursuant to all these things, all the illegally appointee were terminated. 8. He concluded his argument by submitting that now it is settled law that when the initial appointment itself is illegal, there is no question of any reinstatement. 9. Having heard learned counsel for the parties and after going through the materials available on records it appears that the issue raised in these writ applications with regards to the appointment of the petitioners in the Health Department, Bihar has already been decided by the Hon’ble Apex Court way back in the case Ashwani Kumar & others vs State of Bihar & others reported in (1997) 2 SCC 1 . Recently, the Hon’ble Apex Court has again decided a similar case regarding appointment against class-III & class IV post in Health Department, Government of Bihar till 1990 after discussing all previous judgments in the matter. Relevant paragraph of the judgment passed in the case of The State of Bihar & Ors. Vs. Devendra Sharma & Others reported in 2019 (4) JLJR (SC) 323 is quoted herein below for proper appreciation of this case. “3. Brief facts leading to the present appeals are that large number of candidates were appointed against Class III or Class IV posts in the Health Department in Government of Bihar till 1990 or so. The services of such employees were terminated which led to number of writ petitions before the High Court. “3. Brief facts leading to the present appeals are that large number of candidates were appointed against Class III or Class IV posts in the Health Department in Government of Bihar till 1990 or so. The services of such employees were terminated which led to number of writ petitions before the High Court. The first round of cases came to end with the order of three Judge Bench of this Court reported as Ashwani Kumar and Others vs. State of Bihar and Others, (1997) 2 SCC 1 . This Court held that recruitments made by Dr. Mallick were arbitrary, capricious, null and void after considering the Government order dated December 3, 1980 as well as Government resolution dated March 25, 1983. It was also held that none of the appointees have any accrued right in the absence of sanctioned posts. It was held that the whole exercise remained in the realm of an unauthorised adventure. Nothing could come out of nothing. Ex nihilo nihil fit. Zero multiplied by zero remains zero. It was held that army of employees under the Scheme had got to be cleared lock, stock and barrel so that public confidence in Government administration would not get shattered and arbitrary actions would not get sanctified. 11. The appointments in the Health Department to Class III and Class IV posts firstly came up for consideration before this Court in Ashwani Kumar. This Court examined the following points: “1. Whether the appointments of Class III and Class IV employees on the Tuberculosis Eradication Scheme as a part of 20-Point Programme were legal and valid. 2. Whether the confirmation of these employees was legally justified. 3. Whether principles of natural justice were violated while terminating services of all these 6000 employees appointed by Dr Mallick. 4. What relief, if any, can be granted to the appellants.” 12. In respect of first point for determination, the Court was considering the fact that Dr. A.A. Mallick, Deputy Director, Health Department of the Government of Bihar, was in charge of Tuberculosis Centre and as Assistant Director of Filaria, had appointed 6000 employees against sanctioned posts of 2250. This Court found that all these recruitments were arbitrary, capricious, null and void against violation of all norms of administrative procedure contrary to separate Government orders dated December 3, 1980 for Class III and Class IV posts. This Court found that all these recruitments were arbitrary, capricious, null and void against violation of all norms of administrative procedure contrary to separate Government orders dated December 3, 1980 for Class III and Class IV posts. This Court considering the resolution dated March 25, 1983 relied upon by the employees to claim continuity of service, held as under: “12........We agree with the contention of Shri Singh, learned counsel for the respondent-State that all these recruitments made by Dr Mallick were arbitrary, capricious and were null and void as he did violence to the established norms and procedures for recruiting such employees. Dr Mallick was not giving appointments to these employees in his private establishment. He was recruiting them in a Government Programme which was supported by planned expenditure. Such recruitment to public services could not have been effected in such a cavalier fashion in which it was done by Dr Mallick......Unfortunately Dr. Mallick treated this Scheme as his private property. The device adopted by him was in flagrant violation of all norms of administrative procedure known to law. In this connection we may profitably refer to Government Order dated 3-12-1980......It is not in dispute that none of these instructions and the procedure laid down for recruiting Class III and Class IV employees were followed by Dr Mallick while recruiting ad hoc/daily-wage employees at the initial stage in the Tuberculosis Eradication Scheme supervised and monitored by him.......... But the very Resolution indicates that recruitment had to be for regular appointments to be made by the Selection Committee to Class III and Class IV posts under Malaria, Filaria and T.B. programme. Therefore, recruitment was to be done in a regular manner against available posts. It never gave a blanket power to Dr Mallick to create new posts which were not sanctioned and to make recruitment thereon. Nor did it give any authority to throw the recruitment procedure for recruiting such Class III and Class IV employees to the winds and to make recruitment in an arbitrary manner at his whims and fancies. Nowhere this Resolution indicates that the earlier government orders laying down the procedure regarding recruitment to Class III and Class IV posts were to be given a go-by. Nowhere this Resolution indicates that the earlier government orders laying down the procedure regarding recruitment to Class III and Class IV posts were to be given a go-by. Consequently, the Resolution of 25-3-1983 has to be read along with the Government Orders dated 3-12-1980 and not dehors them.......It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions... It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facie illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary, they were not binding on the State of Bihar. The first point for determination, therefore, will have to be answered in the negative.” 17. When the present set of appeals came up for hearing before this Court on April 3, 2018, this Court found the following four categories of cases: [ “(i) Appointments made on the basis of forged appointment letter. They are at S. Nos. 2 to 48. (ii) Appointments made on the basis of forged nursing registration certificate. They are at S. Nos. 49-50-51. (iii) Appointments made by a person who was not competent to make the appointment. They are at S. Nos. 52 to 92. (iv) There is a residual category at S.NO. 1 i.e. appointment made by Dr. A.A. Mallick, Dy. Director, T.B. and S. Nos. 93 & 94 who are now claiming appointment. Their cases will be dealt with separately.” 32. An argument was raised on behalf of learned counsel for the employees that some of the appointments have been made by Regional Deputy Director as four posts of Assistant Director were converted into that of Regional Deputy Director. We do not find any merit in the said argument. The post of Assistant Director was provided in the Directorate of Health Services with no delegation of appointment except in the case of emergency against sanctioned posts. Such Regional Deputy Director has not been conferred power of appointment against Class III and Class IV posts. Therefore, the Assistant Director was incompetent to make appointments against the sanctioned posts except in emergent cases and so is Regional Deputy Director. 33. Such Regional Deputy Director has not been conferred power of appointment against Class III and Class IV posts. Therefore, the Assistant Director was incompetent to make appointments against the sanctioned posts except in emergent cases and so is Regional Deputy Director. 33. In Ashwani Kumar, this Court has dealt with the appointments made against Class III and IV category posts in the Health Department itself. The reasoning recorded therein is that the appointments have been proved to be made not against the sanctioned posts and in a manner, which is wholly arbitrary, capricious and, therefore, employees will not get any right to seek regularisation of their services. 34. In Civil Appeal arising out of SLP (Civil) No. 20033 of 2012, the respondent was appointed by Dr. A.A. Mallick. Such appointments have been found to be illegal by this Court in Ashwani Kumar. We find that there is no reason to reexamine the appointments made by Dr. A.A. Mallick. Such appointments have been adversely commented upon in Ashwani Kumar case. Therefore, no right will accrue in favour of the respondent. Consequently, the appeal arises out of SLP (Civil) No. 20033 of 2012 is allowed and the order passed by the High Court is set aside.” 10. After going through the aforesaid judgments passed by the Hon’ble Apex Court it is crystal clear that in the case of Ashwani Kumar (Supra) itself the Hon’ble Apex Court after considering the Government Order dated December 3, 1980 as well as Government resolution dated March 25, 1983 has held that the recruitment made by Dr. A. A. Mallick were arbitrary, capricious, null and void. It was also held that none of the appointees have any accrued right in the absence of sanctioned posts. 11. Interestingly, these writ applications also arise out of the mass scale appointment in the State of Bihar in which the same Dr. A.A. Mallick was involved. The Vigilance Department found that since 1980 appointments were made in mass scale at the instance of Dr. A.A.Mallick, Deputy Director, (Tuberculosis) without following procedure of appointment. Accordingly, Vigilance submitted its report to the Health Department, Bihar for necessary action. A.A. Mallick was involved. The Vigilance Department found that since 1980 appointments were made in mass scale at the instance of Dr. A.A.Mallick, Deputy Director, (Tuberculosis) without following procedure of appointment. Accordingly, Vigilance submitted its report to the Health Department, Bihar for necessary action. In terms of direction passed by the Patna Court in several cases as well as in the light of the recommendation made by the Vigilance, a general notice by way of show-cause was published in the daily Newspaper for which the date of personal hearing was fixed in between 17.08.1992 to 29.9.1992. The aforesaid notices were related with those persons who were appointed after 01.01.1980 in Class-III and Class IV post. Pursuant to the aforesaid notice by way of paper publication, several persons appeared but the petitioners did not appear at the time of hearing. The Secretary Health, Department Bihar, Patna after hearing all the persons who appeared before him as well as after going through the entire records passed the order that “all the appointments made after 01.01.1980 are illegal and in para13, 14 and 15 of its order it was specifically mentioned that the persons who were appointed in the same process and not filed their show-cause, their services are also illegal and accordingly, directed to the controlling authority of those persons to terminate them with immediate effect”. Since, the Petitioners claim to be appointed in 1989 and belonged to Class-IV and Class-III respectively, their appointment was also declared illegal. 12. At this stage it is pertinent to refer a judgment related to widespread mischief and degree of notice required in such cases of widespread mischief in public appointments. In M.P. State Coop. Bank Ltd., Bhopal vs Nanuram Yadav & Ors, reported in (2007) 8 SCC 264 it was held that “If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection”. 13. As such, Petitioners’ over-reliance on the issue of notice is not valid in the eyes of law. The mere technicality cannot vitiate the termination of the petitioners’ service which is in fact illegal appointments. There is another aspect of the matter. The only way out would be to cancel the whole selection”. 13. As such, Petitioners’ over-reliance on the issue of notice is not valid in the eyes of law. The mere technicality cannot vitiate the termination of the petitioners’ service which is in fact illegal appointments. There is another aspect of the matter. The present writ applications are also hit on the ground of delay and latches. The petitioners lastly moved before this Court in CWJC No.385 of 1994 (R) which was disposed of with a direction to pay the salary, if the petitioners are working and not terminated. Thereafter, only by way of present writ applications they approached this Court, though the position of the petitioner remained same during these periods. 14. In view of the aforesaid facts and circumstances and the settled proposition of law; when the initial appointment itself is illegal, conducted without any roster clearance, without following any procedure of appointment, without any sanctioned post and/or appointments made by incompetent authority, the petitioners cannot get benefit of such illegal appointments. None of the appointees have any accrued right in the absence of sanctioned posts and no back door entry should be entertained by the department. All these facts and the contention raised by the learned senior counsel for the petitioners were dealt in detail and have already been considered way back in the year 1997 in the case of Ashwani Kumar (Supra) and again in the case of State of Bihar & Ors. VS Devendra Sharma (Supra). 15. In view of the cumulative facts and circumstances of the case, both these writ applications are hereby dismissed.