AJIT BURAGOHAIN v. STATE OF ASSAM AND 14 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY
2021-11-09
SOUMITRA SAIKIA, SUDHANSHU DHULIA
body2021
DigiLaw.ai
JUDGMENT : Sudhanshu Dhulia, J. 1. All these Writ Appeals have been filed before this Court challenging the judgment of the learned Single Judge dated 13.03.2020 by which the writ petitions filed by the appellants/writ petitioners were dismissed. 2. The appellants/writ petitioners were appointed as Surveillance Workers under the Health Department in various districts of the State of Assam from 1999 onwards and at some point of time in the year 2015/2016 it was detected that many of the Surveillance Workers were never appointed by the concerned authority. In fact, no procedure was adopted for their appointment and in many of the cases there were no appointment order at all. Consequently, an exercise was undertaken by the Government of Assam in the year 2016/2017 for detecting such cases. 3. Before we proceed to discuss the exercise undertaken by the Government of Assam, a brief description is considered necessary as regarding the post of Surveillance Worker in the State of Assam. Pending finalisation of Service Rules to be framed under Article 309 of the Constitution of India, the Governor of Assam was pleased to pass an Order regulating recruitment and the conditions of service of persons appointed as Para-Medical and Non-Gazetted Staff under the establishment of the Director of Health Services, Assam. The Order is known as “The Assam Vector Borne Disease Control Programme Workers Service Orders, 2006”. At Paragraph No.3 of the Order, Class and Cadres are given. It reads as under:- “3. Class and Cadres : (1) The Service shall consist of the following Classes and Cadres :- (i) Surveillance Worker (SW) and Basic Health Worker (BHW). (ii) The Surveillance Worker (SW) and Basic Health Worker (BHW), working in various institutions in a district shall constitute separate cadre in respect of each district. (2) The service may also include any cadre or post as laid down by the Government from time to time, to be included in a cadre of the service. (3) The status of the members of the service shall be non-gazetted in Class-III service under the Government.” The method of recruitment is given in Paragraph Nos.5 and 6. It reads as under:- “5. Method of Recruitment : Recruitment to the service shall be made in the following manner:- Recruitment to all cadres of service shall be made by direct recruitment in accordance with paragraph 6 of these orders. 6.
It reads as under:- “5. Method of Recruitment : Recruitment to the service shall be made in the following manner:- Recruitment to all cadres of service shall be made by direct recruitment in accordance with paragraph 6 of these orders. 6. Direct Recruitment: Direct Recruitment to cadre of SW, BHW shall be made by the Appointing Authority on the basis of selection made by the Board in order of preference in the following manner:- (1) (i) Before the end of each year the Appointing Authority shall make an assessment of the number of vacancies, which are likely to occur in the next year and work out the details about reservation for candidates belonging to Schedule Castes, Schedule Tribes or any other category as laid down by the Government. (ii) The Appointing Authority shall then invite applications through advertisement to be publish in at least two widely circulated local news papers of Assam. (iii) On receipt of applications in response to the advertisement, Appointing Authority shall prepare a statements of all the candidates and forward it to the Board together with details about vacancies and reservation as assessed under clause (i) of this sub-paragraph and copies of advertisement and the original applications of the candidates and such other information as may be considered necessary for consideration of Board. The Appointing Authority shall simultaneously request the Board to recommend a list of candidates in order of preference containing names equal to the number of vacant posts as advertised. (iv) The Board shall make the selection by taking into account the academic record of candidates and performance in the interview and recommend a list of successful candidates in order of preference containing names equal to the number of vacant posts as advertised and forward the said list to the Appointing Authority for its approval. (v) On receipt of the list recommended by the Board, the Appointing Authority shall approve the list unless it considers any change necessary. In case the Appointing Authority considers it necessary to make any change in compliance of any Government Rules, Orders, Instructions or any statutory provisions it may after taking into account the comments of the Board, in this regard, may approve the list with such modification, if any, as may in its opinion be just and proper.
In case the Appointing Authority considers it necessary to make any change in compliance of any Government Rules, Orders, Instructions or any statutory provisions it may after taking into account the comments of the Board, in this regard, may approve the list with such modification, if any, as may in its opinion be just and proper. (vi) The list as finally approved by the Appointing Authority shall form the select list and the appointments shall be made from out of that select list in accordance with the order of preference in the list. (2) The Select list shall remain valid for 12 calendar months from the date of its publication by the Appointing Authority at least in a local daily news paper and also by such other means as may be considered appropriate by the Appointing Authority. (3) In the event of the Board being unable to recommend sufficient number of candidates to fill up the vacancies in a year or in the event of any candidate whose names appears in the select list and appointment is offered fails or refuses to join in the post offered to him, the Appointing Authority shall, in conclusions with the Board repeat the procedure as mentioned hereinbefore under sub-paragraph (1) of this paragraph to recommend a subsequent list in respect of the remaining vacant posts: Provided that the Appointing Authority shall not make appointment of any candidate from the subsequent select list until all the candidates of the earlier select list of the same year, eligible for appointment have been offered the appointment.” The total cadre strength of Surveillance Workers is given in Schedule-I, which is 1679 and it is spread out in various districts of Assam. 4. It appears that in many cases these Surveillance Workers (many of whom are before us today) were appointed in one district and after a few years or so, were transferred to another district. It also appears from the record that subsequent to transfer of these Surveillance Workers, anomalies were detected which is apparent from the first letter of the Government dated 31.12.2016, which is from the Deputy Secretary to the Government of Assam, Health & Family Department to the Director of Health Services, Assam.
It also appears from the record that subsequent to transfer of these Surveillance Workers, anomalies were detected which is apparent from the first letter of the Government dated 31.12.2016, which is from the Deputy Secretary to the Government of Assam, Health & Family Department to the Director of Health Services, Assam. The letter reads as under: “ With reference to the above I am directed to inform you that the service details as regards appointment letter transfer order for one district to another etc. of all; Surveillance Workers working in the State of Assam is required to be examined in detail in a time bound manner to determine all fake transfer/appointment. In this regard you are requested to formulate modalities and also to form and submit a Screening Committee for verification of records in a time bound manner. Report on formation of Screening Committee & formulation of modalities may be submitted to this Department latest by 4/1/2017 so that the entire verification process in respect of all SWs can be completed on or before 15/2/2017. This is for favour of your information and necessary action.” 5. There is another order of the Government dated 07.01.2017, which is from the Commissioner & Secretary to the Government of Assam, Health & Family Welfare Department, which reads as under:- “ ORDER No. HLA.1007/2016/122: Whereas, it has come to the notice of the Government that many Surveillance Workers had joined in the offices of the Joint Director of Health Services in various district of the State, purportedly on transfer from another district Head Quarter. Whereas, on enquiry it has been found that in a large number of cases these so called transfer orders were fake and hence such joining in another district based on such transfer orders were/are ab-initio invalid. Whereas, prima facie on the basis of enquiry conducted by the CM’s Special Vigilance Cell and other departmental enquiries conducted so far and based on preliminary reports of such enquiry, a large number of fake appointments have been detected. Whereas, the Director of Health Services, Assam has already taken action on 312 numbers of such fake appointees by terminating their services till date from 2015 at different dates as and when such cases are detected and reported through proper enquiry by the enquiry agencies.
Whereas, the Director of Health Services, Assam has already taken action on 312 numbers of such fake appointees by terminating their services till date from 2015 at different dates as and when such cases are detected and reported through proper enquiry by the enquiry agencies. Whereas, the enquiry is still going on for detection of fake appointees and periodically such cases of fake appointments are still being detected in different districts of the state, and whereas, there is every possibility of coming out of more such cases to the light specially in the post of SW (surveillance Worker) and whereas it is important to examine in detail in a time bound manner, all such cases of fake transfer/appointments, the Government has decided to get the appointment letters/records of all the SW employees serving in the state at present verified by the Director of Health Services, Assam and till such verification is complete, the salaries in respect of all SW employees shall be withheld with immediate effect till the genuineness of appointment of each individual incumbent is otherwise established.”. 6. Consequent to the above, five Screening Committees were constituted for different districts by the Government of Assam through its letter dated 10.01.2017 in order to examine the veracity of the documents of the Surveillance Workers. The preliminary reports of these Committees were placed before the Government by the letter of the Director of Health Services, Assam dated 15.02.2017, which reads as under: “Sir, With reference to the subject cited above, I am to state that the process of verification of Surveillance Worker (SW) by the Screening Committee was held w.e.f. 19/1/2017 to 1/2/2017, during the verification process some anomalies as well as few fake appointment letters have been suspected. Some districts have not submitted the complete details of Surveillance Worker (SW) and from Dibrugarh district more than 120 nos. of SW didn’t turn up for verification process and from Sivasagar about 10-15 nos. didn’t turn up and a few from other districts. The proper list was also not furnished during the verification process. Few candidates did not have original appointment letters, some couldn’t even produced photocopy of appointment letter. Some SW have doubtful service books. Some of the submitted documents found to be fake on verification. The service books of some of SWs were not properly maintained.
The proper list was also not furnished during the verification process. Few candidates did not have original appointment letters, some couldn’t even produced photocopy of appointment letter. Some SW have doubtful service books. Some of the submitted documents found to be fake on verification. The service books of some of SWs were not properly maintained. Though asked the Joint DHS and his/her staff along with the Surveillance Worker with all relevant records to be present during the time of screening but few districts have not furnished the complete records. The Joint DHS Cachar has removed 5 nos. of SW from Cachar district in a hasty manner based on a forged letter and the same is also neither reported nor informed verbally during verification period. On 27/1/2017 a letter and WT message was received with enclosures regarding the removal. Show cause notices are also issued regarding non submission of records. During verification it was observed that the Surveillance Worker are mostly appointed by the Districts Authority i.e. DMO/CM & HO/Joint DHS and they are to be certified by the Joint DHS regarding their genuineness whose documents records are not found to be proper. In the year 2008, 464 Nos. of SW were appointed and in the year 2015, 85 Nos. SW were appointed in Morigaon/Nagaon district by this Directorate with few backlog/compassionate ground appointment of SW. Now, this Directorate is compiling all the records and need further assistance of the Joint DHS and his/her staff to fully certify the genuineness of the Surveillance Worker. Accordingly, this Directorate desires to call again all the Joint DHS and concerned staff with records to give the final touch of the compiled reports. In view of the facts stated above, I have the honour to request Govt. to kindly extend the date of submission of verification reports of SW upto 5th March, 2017 so to enable this Directorate to submit a complete useful, authentic report to the Govt. for further necessary action. This is for favour of information and necessary approval of the Govt.” 7. The first meeting of the Screening Committees was held on 19.01.2017 and 01.02.2017, but since some of the Surveillance Workers could not appear, another chance was given on 27.02.2017 and 28.02.2017.
for further necessary action. This is for favour of information and necessary approval of the Govt.” 7. The first meeting of the Screening Committees was held on 19.01.2017 and 01.02.2017, but since some of the Surveillance Workers could not appear, another chance was given on 27.02.2017 and 28.02.2017. Thereafter, another chance was given on 18.03.2017 and ultimately the fourth meeting in respect of the remaining candidates took place on 19.04.2017 and 26.04.2017, but even at this stage there were 10 candidates who did not appear and their names were published in the newspapers giving them final notice to appear and show their documents in order to prove the veracity of their appointment. Ultimately the Government came to the conclusion that this is a case of 203 Surveillance Workers who had obtained appointment by wrong means, either they have not been able to show their appointment letters or in many cases where they have been able to show their appointment letters, the veracity of those appointment letter have not been established, inasmuch as, there is no such corresponding document available in the office of the Joint Director of Health Services or the Director of Health Services. In fact, in many cases where they were initially appointed in district ‘A’ and thereafter, after 2/3 years transferred to district ‘B’, there is evidence to this effect that before their transfer many of them did not even receive their salary and they started receiving their salary only after they were transferred to another district as Surveillance Worker. In order to give an example of how the Committees proceeded, a district wise break up has been given. The procedure before the Screening Committee was that the responsibility was fixed on the concerned Joint Director of Health Services of the district, who was to appear before the Committee with all the documents along with the Dealing Assistant/Head Assistant and along with all the Surveillance Workers who were directed to appear before the Screening Committee personally. For example, for the district of Sivasagar, the observations of the Committee are as under:- 1. Sivasagar The Joint Director of Health Services Sivasagar directed to appear before the Screening Committee along with the Dealing Assistant/Head Assistant and all Surveillance Worker are also directed to appear before the Screening Committee personally.
For example, for the district of Sivasagar, the observations of the Committee are as under:- 1. Sivasagar The Joint Director of Health Services Sivasagar directed to appear before the Screening Committee along with the Dealing Assistant/Head Assistant and all Surveillance Worker are also directed to appear before the Screening Committee personally. On 1st Feb, 2017 the Joint Director of Health Services Sivasagar submitted a list of 43 Surveillance Worker (SW) and all appeared before the Screening Committee. However, the Joint Director of Health Services Sivasagar did not furnish data of remaining 26 Nos. of Surveillance Worker. Accordingly, a show cause notice is also issued to the Joint DHS Sivasagar. The Joint Director of Health Services, Sivasagar and their concerned Dealing assistant are directed to appear again before the Screening Committee on 28/2/2017 to further verify the authenticity and genuineness of the Surveillance Worker (SW). On verification on 1st Feb, 2017 and 28/2/2017 it is found that the 43 nos. of SW employees’ verification is made and found correct. On the basis of certificate given by the Joint DHS Sivasagar in respect of the appointment which was made by the District Authority i.e. Joint Director of Health Services/District Malaria Officer etc. The appointment which was directly made by the Director of Health Services Assam is found correct. On the other hand on 28/2/2017, 26 Nos. of SW appear before the Screening Committee and the records/documents submitted by them are verified but the documents not tallied with the Director of Health Service office record. The salary of these 26 nos. of employees may be stopped due to non submission of genuine documents. The name of the 26 Nos. of employees are as follows: 1. Kiron Bora, SW 2. Sanjib Gogoi, SW 3. Manas Pratim Deka, SW 4. Sudipta Manob Dutta, SW 5. Arup Borpatra Gohain, SW 6. Abhijit Chetia, SW 7. Ujjal Chetia, SW 8. Bhaskar Boruah, SW 9. Diganta Sonowal SW 10. Kalyan Kr. Dehingia, SW 11. Debajit Borgohain, SW 12. Ranjeet Handique, SW 13. Rupak Handique, SW 14. Ashim Saikia, SW 15. Pranab Jyoti Kalita, SW 16. Meghali Borah, SW 17. Ajoy Rajkonwar, 18. Mukul Konwar, 19. Ciron Handique 20. Atul Saikia, 21. Rashmi Rekha Gogoi, SW 22. Dipankar Gogoi, SW 23. Rekha Saikia Bora 24. Nazil Ara Ahmed, 25. Dipankar Gogoi, SW 26. Monika Dehingia The Statement of verification of SW of Sivasagar district is annexed as Annexure-1. 8.
Pranab Jyoti Kalita, SW 16. Meghali Borah, SW 17. Ajoy Rajkonwar, 18. Mukul Konwar, 19. Ciron Handique 20. Atul Saikia, 21. Rashmi Rekha Gogoi, SW 22. Dipankar Gogoi, SW 23. Rekha Saikia Bora 24. Nazil Ara Ahmed, 25. Dipankar Gogoi, SW 26. Monika Dehingia The Statement of verification of SW of Sivasagar district is annexed as Annexure-1. 8. Similar observations are there for the district of Dibrugarh where maximum number of cases were detected, such as 131, and so on. The matter was further verified and as per the final tally, the number of candidates who were initially 131 for Dibrugarh, were found to be 127 in the final tally. For Sivasagar district, it was 26 and so on. The final tally reads as under:- Consolidated statement of re-verification of Surveillance Worker (SW) whose salary not yet released 1 2 3 4 5 6 7 8 Sl. No. District Total No. of S W re-verified No. of SW who appeared for re-verification No. of SW whose appointment found to be genuine No. of SW whose appointment found to be not genuine and not submitted authentic/genuine documents No. of SW who didn’t appear for re –verification Total of Column of 6 & 7 1 Barpeta 4 4 0 4 0 4 2 Baksa 2 2 0 2 0 2 3 Cachar 8 8 0 8 0 8 4 Goalpara 6 6 0 6 0 6 5 Golaghat 4 4 0 4 0 4 6 Lakhimpur 1 1 0 1 0 1 7 Sonitpur 17 17 0 15 0 15 8 Sivasagar 26 26 0 26 0 26 9 Tinsukia 10 10 0 10 0 10 10 Dibrugarh 128 121 1 120 7 127 Total 206 199 3 196 7 203 Sd/- Tankeswar Das, ACS, Addl. Director of Health Services”. 9. Pursuant to the letter of the Government dated 19.06.2017, the Director passed the following order: “ No. HSE/SW/Genuineness/254/2016/10217-27 Dated 21st June, 2017 From: The Director of Health Services, Assam Hengrabari, Guwahati-36 To : The Joint Director of Health Services, Lakhimpur/Dibrugarh/Sonitpur/Golaghat/BarpetaGoalpara/Tinsukia/Baksa/Cachar/Sivasagar Sub: Removal of Surveillance Worker (SW) Ref : Govt. Letter No. HLA.1007/2016/278 dated 19/6/2017 Sir/Madam, As per Govt.
9. Pursuant to the letter of the Government dated 19.06.2017, the Director passed the following order: “ No. HSE/SW/Genuineness/254/2016/10217-27 Dated 21st June, 2017 From: The Director of Health Services, Assam Hengrabari, Guwahati-36 To : The Joint Director of Health Services, Lakhimpur/Dibrugarh/Sonitpur/Golaghat/BarpetaGoalpara/Tinsukia/Baksa/Cachar/Sivasagar Sub: Removal of Surveillance Worker (SW) Ref : Govt. Letter No. HLA.1007/2016/278 dated 19/6/2017 Sir/Madam, As per Govt. letter vide No. HLA.1007/2016/278 dated 19/6/2017, I am directed to request you to remove the Surveillance Worker (SW) of your district with immediate effect as per list enclosed who were not found genuine during verification/screening and also not able to prove the genuineness of their appointments. In this connection, the Sr. Additional Advocate General, Assam has given his opinion as “From the scrutiny/verification conducted by the Department through the Screening Committees it is apparent that the 378 aforesaid Surveillance Workers are illegal appointees out of which 175 Nos. Surveillance Workers have already been terminated. Thus, in my considered opinion, the left out 203 nos. of Surveillance Workers deserve identical treatment and should also be removed being illegal appointees and there is no requirement of issuing any show cause notice now, as the screening committee have already granted them fair opportunity to defend their status in service.” Further, the Sr. Advocate General has also suggested that “it is also necessary to ascertain service of the termination order upon the incumbents. Furthermore, “it is apparent from the screening committee report that the appointments were illegal, therefore the department also requires to initiate appropriate Departmental enquiry as well as proceeding to find out the persons/officials responsible for such illegal appointments which has resulted in draining out of public exchequer”. You are therefore, requested to remove the Surveillance Worker immediately as directed by the Govt. as per list enclosed of your respective district. The districtwise figure is shown below: Sl. No. District No. of SW to remove 1 Barpeta 4 2 Baksa 2 3 Cachar 8 4 Dibrugarh 127 5 Goalpara 6 6 Golaghat 4 7 Lakhimpur 1 8 Sonitpur 15 9 Sivasagar 26 10 Tinsukia 10 Total 203 Beside this, you are also requested to lodge FIR against the persons and officials responsible/involved in such illegal appointments. Yours faithfully, Sd/ Director of Health Services, Assam Hengrabari, Guwahati-36”. 10. Thereafter, in the case of final of 203 candidates, individual letters of termination were passed.
Yours faithfully, Sd/ Director of Health Services, Assam Hengrabari, Guwahati-36”. 10. Thereafter, in the case of final of 203 candidates, individual letters of termination were passed. Each of the Joint Director heading the Health Department of the district passed an order of termination of such Surveillance Workers under him. One such order passed by the Joint Director of Health Services , Tinsukia is quoted below: “Office of the Joint Director of Health Services :: Tinsukia District :: Tinsukia No.2853/vide DHS Assam order No.HSE/SW/Tin/78/2016/5453 dt. 15/7/2016, the under mentioned incumbents working in different PHC of this District are hereby dismissed/removed from Services with immediate effect. Sl. No. Name of employees Designation Present place of posting 1 Sri Chandra Borgohain SW KetetongPHC 2 Sri MintuGogoi SW KakopatherPHC 3 Sri Apurba Kumar Bora SW KakopatherPHC 4 Sri Siva SarthakSaikia SW HapjanPHC 5 Sri PrakashPhukan SW KakopatherPHC 6 Sri BhupenKonwar SW HapjanPHC 7 Sri PabanChouhan SW KakopatherPHC 8 Smt. JoyaSonowal SW KakopatherPHC 9 Smt.ArunaGogoi SW KakopatherPHC 10 Smt.BantiSonowal SW KakopatherPHC 11 Smt.RatnaSonowal SW KakopatherPHC 12 Sri Surendra Mohan Gogoi SW KetetongPHC 13 Smt. SwapnaBorgohain SW Na-SadiyaPHC 14 . Sri BipulKalita SW HapjanPHC 15 Smt.MenokaDewri SW KetetongPHC 16 Sri SimantaBaruah SW Already expired 17 Smt.DibyaJyotiSonowal SW KakopatherPHC 18 Sri TikendrajitGogoi SW HapjanPHC 19 . Sri NayanJyotiGogoi SW Na-SadiyaPHC 20 Sri Bholaram Das SW HapjanPHC 21 Sri Keshab Ch. Gogoi SW KetetongPHC 22 Sri RiturajChetia SW HapjanPHC 23 Sri Pranab Kr. Raja SW KakopatherPHC 24 Sri DreamjyotiSonowal SW KakopatherPHC 25 Sri PawanThapa SW Hapjan PHC 11. It is an admitted case that although the order was a combined order, it was individually marked and given to each Surveillance Worker. This order of termination was challenged by the appellants/ writ petitioners before the learned Single Judge. The main ground of challenge raised by the appellants/ writ petitioners before the learned Single Judge was that their appointment cannot be called to be illegal, though it may be irregular and, in any case, their appointments were made by the appointing authority and even presuming there is a violation in the process of their appointment, since they had already put in long years of service, an opportunity of hearing in the form of a show cause notice was liable to be given and a speaking order in each case was liable to be passed. 12.
12. The stand of the Government, on the other hand, was that it is not merely a case of irregularity in appointment, rather it is a matter of serious concern as for a long period these appointment were made in total violation of law for extraneous considerations and in fact, it is in the nature of a scam which has been unearthed subsequently by the Government. It has also been stated at the Bar that the highest official of the State Government in the Health & Family Welfare Department i.e. the Director of Health Services is presently facing a criminal trial along with other officials. 13. Mr. K.N. Choudhury, learned senior counsel representing some of the appellants would argue that in this case there was a clear violation of the principles of natural justice and fair play, there was no notice, no enquiry, even the termination order is a one line order and it is not a speaking order and, therefore, on this ground alone the writ appeals are liable to be allowed. In support of his contention, Mr. Choudhury has also placed reliance on a judgment of the Apex Court in the case of Shrawan Kumar Jha & Ors. –vs-State of Bihar & Ors., reported in 1991 Supp. (1) SCC 330. The appellants in the said case before the Apex Court were Assistant Teachers who were appointed by the District Superintendent of Education, Dhanbad, who had no authority to make such appointments and, therefore, for the said reason their appointments were cancelled. The contention of the appellants was that subsequent to their appointment they had already joined their respective schools and were rendering their services. The Hon’ble Apex Court ultimately held in Paragdraph-3 of the judgment as under:- “ ……………………………….In the facts and circumstances of the case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground.
Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the Secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period.” 14. In other words, the argument of the learned senior counsel is that even assuming that the appointments of the appellants/ writ petitioners were irregular, bad or illegal, considering the facts and circumstances of the case and the fact that they had already put in long years of service, an opportunity of hearing was liable to be given to them before passing the termination order. 15. Mr. D. Saikia, learned Advocate General, Assam admits the legal position that in normal cases an opportunity of hearing is liable to be given, but such was not the situation in the case at hand. According to him, it was not a case where one or two individual appointments were made which were irregular or illegal and subsequently they were cancelled in violation of the provisions of law. In the present case, some Government officials in connivance with others had issued fake appointment letters and had given appointment to as many as 373 persons. In fact, proceedings against 170 had already taken place previously (they are not before this Court). Presently in case of 203 candidates, termination order has been passed. An opportunity of hearing need not be given in every case, particularly in the case which is presently before this Court. In support of his contention, the learned Advocate General placed reliance upon a judgment of the Apex Court in the case of State of Manipur & Ors.
Presently in case of 203 candidates, termination order has been passed. An opportunity of hearing need not be given in every case, particularly in the case which is presently before this Court. In support of his contention, the learned Advocate General placed reliance upon a judgment of the Apex Court in the case of State of Manipur & Ors. –vs-Y. Token Singh & Ors., reported in (2007) 5 SCC 65 , wherein appointment orders were issued by an authority which was not authorised to pass such orders and subsequently those appointments were cancelled. The petitioners challenged the cancellation of their appointment before the learned Single Judge in a writ petition. The writ petition was allowed and the writ appeal of the State was dismissed. Consequently, the State of Manipur approached the Hon’ble Apex Court in appeal. The Apex Court relying upon a series of its earlier judgments held as under:- “17. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fides. 18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts.
They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange. It was then stated as under:- 22. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar [1991 Supp (1) SCC 331] . 16. In Kendriya Vidyalaya Sangathan & Ors. –vs-Ajay Kumar Das & Ors., reported in (2002) 4 SCC 503 , the Hon’ble Apex Court has held that where the appointment order itself is a nullity, there is no necessity of giving a show cause to the employee while terminating his service. 17. We have also considered the order of the learned Single Judge in great detail. The learned Single Judge has considered each and every aspect of the matter, including all the arguments which have been canvassed before this Court by the two senior Advocates. 18. Under the facts and circumstances of the case, we are unable to take a view which is different from what has been taken by the learned Single Judge. All the same, it is also apparent that an observation has been made by the learned Single Judge in Paragraph No. 19 of impugned order to the effect that none of the petitioners could show an appointment letter. It has been canvassed before this Court that what was submitted before the learned Single Judge was that none of the appellants/writ petitioners were having an appointment order in their favour, whereas some of the writ appellants before this Court, we must say in all fairness, have shown documents which are said to be their appointment letter. We have studied the enquiry report and the findings of the Committees in great detail.
We have studied the enquiry report and the findings of the Committees in great detail. We must admit that many of these appointment letters were examined by the Committee and the Committee came to the conclusion that some of them are not genuine. For example, in case of Barpeta district there were 33 cases, out of which the Committee found 29 to be genuine only in cases of 4 candidates (Surveillance Worker), the finding was that they were not having genuine appointment order/documents. So, it is not the case that these appointment orders which are being shown to us were not examined by the Screening Committee. Therefore, it is not a case where an opportunity has not been given to the appellants/ writ petitioners to prove the veracity of their documents and justify their appointment as Surveillance Worker. Many succeeded in proving their case and they are still in service. Only in those cases where either there was no appointment letter or their letters were found to be forged, the extreme order of termination of their services was passed. Therefore, in our view there is no violation of the principles of natural justice and fair play, considering the peculiar facts and circumstances of the case. 19. In any case, while we dismiss the writ appeals; purely as an abundant precaution and in the interest of justice, we direct that although we have not interfered in the matter, and considering the fact that some of the appellants/writ petitioners may be having a genuine appointment letter/ document in their favour to show that their appointment was not a fake appointment, such a candidate will be at liberty to appear before the Committee (which would be constituted by us in this order). The Committee shall examine the veracity of the documents and in case after necessary enquiry and verification it comes to the conclusion that these documents are genuine, such Surveillance Workers shall be reinstated in service forthwith with all backwages. The reverse, however, should also be true. We also make it clear that in case the Committee comes to the conclusion that a deliberate attempt has been made to show a forged and fabricated document before them then the Committee would be at liberty to take necessary action in accordance with law.
The reverse, however, should also be true. We also make it clear that in case the Committee comes to the conclusion that a deliberate attempt has been made to show a forged and fabricated document before them then the Committee would be at liberty to take necessary action in accordance with law. In order to reach fairness in the matter, the Committee which shall examine the documents shall consist of the Director of Health Services, Assam and in case the Director of Health Services, Assam is not available, then the senior most Additional Director of Health Services, Assam; and the Legal Remembrancer of the State. The two members in consultation with themselves, shall co-opt a third member of the Committee, who should be at least a Secretary rank officer. The three-member Committee shall examine these documents. All the appellants before us are at liberty to show their documents before the Committee within a period of three weeks from today. The date which has been suggested by the learned Advocate General, Assam and the learned counsel for the appellants is 10.12.2021. Let all the appellants appear before the Committee on 10.12.2021 in the office of the Director of Health Services, Assam, Hengrabari, Guwahati. The learned Advocate General, Assam shall also give all logistical details to the learned counsel for the appellants in order to facilitate appearance of the appellants before the Committee. 20. Apart from this, a notice will also be issued by the State Government in the newspapers so that the concerned candidates may appear before the Committee on the date fixed. It is made clear that no individual notice is required in the matter.