Judgment:
M.Y. Iqbal, J.
1. Altogether 11 writ petitioners have come to this Court by filling the instant writ application seeking a relief for quashing the order of termination of their Services by the respondents as contained in letter No. 88 dated 12th September, 1995. The petitioners further prayed for their absorption in the regular establishment of the Department.
2. The facts as narrated by the petitioners are as follows:
In the year 1978 few posts of Vaccinator were advertised by the respondents. Pursuant thereto, the petitioner No. 1 made an application. By an order of the then respondent No. 5. Civil Surgeon-cum-chief Medical Officer, petitioner No. 1 was appointed as Vaccinator on temporary basis. He joined on 1st May, 1978. After having worked for about 2 years, a service book of the petitioner was opened and deduction of Provident Fund was started. The petitioners alleged to have got increments and since the petitioners has been working as Vaccinator. The petitioner No. 1 also claimed to have been given time bound promotion in the year 1981 under the time bound promotion scheme circulated by the Government of Bihar, copy of the promotion order was filed and marked Annexure 2 to the writ application. The petitioner's further case was that in the year 1985-86 the District of Gaya witnessed an epidemic. To deal with the situation, the respondents felt emergent need of engaging persons. Accordingly, petitioner Nos. 2 to 11 were appointed on different dates. It was stated that since the need of engaging persons were so urgent that prior formalities of appointment could not be followed. The petitioners further stated that the requirement of hands to control the epidemic was always there in the District of Gaya and the respondent No. 5. Civil Surgeon-Cum-Chief Medical Officer made requests to the Department for allotment of additional hands to meet the situation, copy of the letter issued by the respondent No. 5. to respondent No. 3. Director-in-chief, Health Services, was filed and marked Annexure 4 to this writ application. It was further stated that though initially the petitioners were appointed on fixed term basis either for four months or for six months but since there were large number of vacant posts available in the District Works under the different schemes, such as Family Planning, Epidemic Control, Immunisation etc. were being hampered on account of vacancies, the respondent Nos. 5 and 6 continued the services of the petitioners. The petitioners stated to have been working under the Public Health Office, Gaya and respondent No. 6 is the Controlling Officer of the said office. The petitioners, therefore, made out a case in the writ petition that their services were extended until further orders, and they were deputed at different Primary Health Centres and, accordingly, they continued till date. It was further alleged in the writ petition that at the time of joining of the petitioners, their original appointment letters were taken by the Clerk, deputed in the office of the respondent No. 6, namely, Sri Bhupendrapati Sharma. On the basis of appointment letters their service books were opened wherein the date of appointment was mentioned. The petitioners, further case was that respondent No. 6 by his letter No. 37 dated 5th May, 1992, issued an order directing same of the petitioners and others to submit their appointment letters and proof in support of their age. Pursuant thereto, the petitioners who were directed to submit their appointment letters, made a representation in May, 1992 to respondent No. 6 stating therein that their original appointment letters are already lying in the office which were submitted at the time of their joining, It was further stated that in May-June, 1991, the aforesaid Sri Bhupendrapati Sharma was transferred from the office of respondent No. 6 to Lady Irgin Hospital, Gaya and Sri Krishna Prasad Sharma was posted at his place. Sri Bhupendrapati Sharma, in spite of several directions, did not hand over the complete charge of the office. Because of non-submission of the records the said Bhupendrapati Sharma was suspended and departmental proceeding was initiated against him. The petitioners' case was that by an order dated 23.10.1994 the District Magistrate, Gaya issued a letter to the District Treasury Officer, Gaya mentioning that the several persons in the. different Departments in the district of Gaya were working on the basis of forged appointment letters. Accordingly, - the Treasury Officer was directed that before allowing payment of salary to the employees, he should obtain a certificate from the Controlling Officer of the employee concerned regarding the genuiness of their appointments, copy of the letter was filed and marked Annexure 14 to this writ application. In that context when the salary bills of the petitioners were placed for clearance before the Treasury Officer, Gaya, he did not clear it and recorded an objection that unless a certificate from the Drawing and Disbursing authority with regard to genuineness of appointment of the concerned employee is obtained, no payment would be made, the respondent No. 6 who is the Drawing and Disbursing authority of the petitioners said to have given a certificate that the appointments of the petitioners were not forged ones. It is only., thereafter, that the salary of to petitioners was paid, copy of that letter was filed and marked Annexure 15 to this writ application. The petitioners, further case was that pursuant to the objection raised by the Treasury Officer, the respondent No. 6 by his letter dated 2nd November, 1994 directed the petitioners to submit their appointment letters by 10th November, 1994 in his office. The petitioners replied to that letter taking plea that the appointment letters were taken by the office at the time of joining and therefore the same could be furnished only on returning of those papers. However, the salary of the petitioners were stopped and respondent No. 5 by letter dated 9th May, 1995 informed the respondent No. 4 that the enquiry with regard to the petitioners and others had already been completed and a report in this regard had been submitted on 6th June, 1994. The respondent No. 5 further mentioned that respondent No. 4 had himself directed not to make payment of salary to the persons the genuineness or those appointment had not been proved, copy of that letter was filed and marker Annexure 16 to this writ application. It was further stated that on 10th July, 1995, a meeting of the Officials of the Health Department and the office bearers of the Association was held in the chamber of the respondent No.5 at Gaya and the said meeting it was resolved that so far the payment of salary to the Cholera employees is concerned, the same would be decided only after receipt of the decision of the State Government, copy of the said decision was Annexure 20 tothis writ application. Surprisingly the respondent No. 5 came out with the impugned order dated 8.9.1995 terminating the services of the petitioners and 11 others on the ground persons were appointed for 4 to 6 months and since the period of appointment came to an end, they were being terminated, copy of the termination order was filed and marked Annexure 22 to this writ application. The petitioners' case was that before the order of termination no departmental proceeding or enquiry was ever held against he petitioners, nor the petitioners were given opportunity of hearing before passing the impugned order.
3. A counter affidavit was filled on behalf of respondent No. 5, Civil surgeon-cum-chief Medical Officer, Gaya stating, inter alia, that the petitioner were given notice by the respondents before passing the impugned order of termination and therefore they were not entitled to continue in the service. It was stated that an enquiry conducted by the Department it was found that these petitioners were initially appointed and/or retained as cholera workers for a fixed period of time and the continued in the service. It was further stated that from Annexure 5 series it would appear that the petitioners were retained for 4 to 6 months under the order of Additional Chief Medical Officer, Gaya and their retention service were extended from time to time. It was further stated that power of appointment on the post of Cholera workers squarely vest with the Director-in-chief which will appear from letter No. 11 dated 20.1.1992 issued under the signature of the Commissioner of the Department, copy whereof is Annexure to the counter affidavit. According to respondents there was no such order on record appointing the petitioners on the post in question but the petitioners managed to continue in the service. The respondents further stated that the petitioners were also put on notice through different letters issued under the signature of respondent, Additional Chief Medical Officer, Gaya and the same duly served upon and received by the petitioners, zerox copy of the notices were filed and marked Annexure B series to the counter affidavit. It is stated that in response to the said notice all the petitioners filed a joint application before the respondent Additional Chief Medical Officer, Gaya stating therein that they undertake to furnish their appointment letter by 10.11.1994 failing which they shall not be entitled to salary. The petitioners however, failed to submit their appointment letter. The whole matter was considered by the respondents and through a letter bearing memo No. 296 dated 12.5.1995, the respondent No. 5 informed about the manner in which these persons were allowed to continue in the Government Service. The said letter was elaborative on the point. It was further disclosed that the matter of illegal retention of service was brought to the notice of respondent District Magistrate when he issued Annexure 3 to the Treasury Officer not to encash bill or pay the bill of such persons unless they produce their appointment letters. The said letter further indicated that pursuant to notice to the petitioners they undertook to produce the appointment letter but the same was not produced, copy of the letter dated 12.5.1995 is Annexxure D to the counter affidavit. The respondent No. 5 further stated in the counter affidavit that the petitioners involved themselves in Criminal Acts which will appear from the fact that they produced Annexure 8 series which are the service book of the petitioners. A perusal of the said Annexure would indicate that all these service books were opened under the hand and seal of Dr. Girja Shankar Prasad who was shown to have signed on 21.5.1988, when Girija Shankar Prasad was holding the post of Additional Chief Medical Officer, Gaya between 1.4.1984 to 26.12.1986 and during the relevant period that is 1988, the said post was held by Dr. Mukteshwar Prasad. The respondents also claimed that initial appointment of the petitioners was itself illegal and violative of Articles 16 of the Constitution of India.
4. The petitioners filled a rejoinder to the counter affidavit stating, inter alia, that respondent No. 5 by letter dated 6th June, 1994 made a report to respondent No.4 that on enquiry he had found Sri Bhuppendrapati Sharma was responsible for disappearance of appointment letter and other documents of the employees, copy of that letter filed as Annexure 24. The petitioners brought on record a circular dated 6th July, 1987 to the effect that under the circular respondent No. 5, Civil Surgeon-Cum-Chief Medical Officer was competent to make appointment against the post held by the petitioners. As against the circular dated 20th January, 1992, it was stated by this circular that the Health Department took a decision that the appointment to the post of cholera workers shall be required to be filled up by the Directorate of the Health Department. The petitioners further annex circular dated 14th September, 1989 Annexure 29 to the said rejoinder to the effect that Civil Surgeon-Cum-Chief Medical Officer of the Department was authorised to take steps for meeting the immediate anti-epidemic measure in draught affected area of the State. The petitioners further brought on record showing that the appointment of the petitioners was found to be illegal. The petitioners further stated in the rejoinder that the services of the petitioners and seven others were regularised by the order of Civil Surgeon-Cum-Chief Medical Officer as contained in Memo No. 155 dated 25th, August, 1990, copy whereof is Annexure 28 to the rejoinder.
5. Mr. Tara Kant Jha, learned senior counsel appearing on behalf of the petitioners first assailed the order of termination as being illegal and without jurisdiction inasmuch as according to learned Counsel when the petitioners were appointed and regularised and subsequently confirmed then the order of termination could not have been passed without giving notice and hearing to the petitioners. Learned Counsel first of all drawn my attention to Annexure 28 to the rejoinder to show that the petitioners, services were regularised then the learned Counsel referred to Annexure 30 of supplementary counter affidavit which is an order dated 6.9.1990 to the effect that the services of the petitioner Nos. 2 to 9 were confirmed. On the basis of these two annexures, one by which the services of the petitioners were regularised and Anr. the services of the petitioners were confirmed, learned Counsel submitted that before issuing the impugned order of termination the respondents-authorities were bound to follow the procedure of Article 311(2) of the Constitution of India. Learned Counsel therefore submitted that since the petitioners were not subjected to any departmental proceeding the termination order cannot stand in law. In support of his submission learned Counsel relied upon one decision of the Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd. reported in : (1993)IILLJ696SC and Anr. decision in the case of Chandradeo Mahto v. State of Bihar an Ors. reported in 1992 (1) PLJR 110. Learned Counsel then submitted that, as a matter of fact, no notice was ever served on the petitioners asking them to show causes as to why their services should not be terminated rather notice was served on the petitioners for submission of their appointment letters. Learned Counsel further brought notice Annexure 19 whereby the Regional Deputy Director was of the view that before terminating their services enquiry was necessary. Learned Counsel made an alternative argument that even assuming that the Director-in-Chief was the appointing authority the order of termination could have been passed by the Director-in-Chief. Since the order of termination was passed by the Civil Surgeon who had, according to respondents, no authority, the said order cannot sustain in law. Learned Counsel lastly submitted that even if the appointment of the petitioners are said to be illegal the very fact that the petitioners continued their services for a long period, their services could not have been terminated without following the procedure and without holding an enquiry in presence of the petitioners. In this connection learned Counsel relied upon two decision one in the case of Jai Shankar Prasad v. State of Bihar and Ors. reported in 1995 PLR 73 and Anr. in the case of Dhrub Prasad and Ors. v. State of Bihar and Ors. reported in 1995 PLR 169.
6. On the other hand, Mr. Kishore K. Mandal, Standing Counsel IX, firstly submitted that a bare perusal of Annexure 5. series will show that the petitioners were retained for 4 to 6 months as cholera workers under the order Additional Chief Medical Officer, Gaya and their retention of service were extended from time to time. Learned Counsel then submitted that power of appointment on the post of cholera squarely vest with the Director-in-chief as would appear from letter No. 11 dated 20.1.92 copy whereof is Annexure to the counter affidavit. Learned Counsel repelling the argument of the petitioners' counsel submitted that Clause 9 of Annexure 25 itself indicate that appointment to the post of cholera workers has to be made by the Committee. It was specifically stipulated in Clause III and IV of Annexure 25 that any irregular appointments shall be void. Learned Counsel submitted that before terminating their services the petitioners were notices by different letters issued by the Additional Chief Medical Officer, copy whereof is Annexure B to the counter affidavit. From perusal of Annexure B it appears that petitioners were called upon to produce their appointment letters failing which their salary shall be stopped.
7. Having heard learned Counsel appearing for both the parties and on perusal of the entire document brought on record. I am of the definite view that petitioners were not appointed after following the procedure under the law, the recruitment rules and in compliance with the provision of Article 16 of the Constitution of India. In paragraph 9 of the writ application the petitioners themselves that since there was requirement of additional hands in the District of Gaya in the Department of Health, the petitioners were appointed on fixed terms basis either for 4 months or 6 months and thereafter because of large number of vacant posts available in the Department under the different schemes the petitioners were allowed to continue as cholera workers. The question now for consideration in this case is as to whether if the initial appointment itself was void petitioners shall have any legal right to challenge the order of termination. The law in this regard is no longer res integra. Similar matter was considered by a Full Bench of this Court in the case of Nand Kishore Raut and Ors. v. State of Bihar Ors. reported in 1991 (1) PLJR 441. In the case before the Full Bench their Lordship were considering a question as to the effect of illegal appointment and held that appointments made without following the procedure prescribed under the rules and in defiance of the bar imposed on such appointments, such appointments do not create any right on the incumbents and the principles of natural justice does not apply to those cases.
8. In the case of M.L. Gupta and Ors. v. Instrumentation Limited and Ors. reported in 1992 (1) PLJR 137 a Bench of this Court in paragraph 95 of the judgment held as under:
From the decision of the Supreme Court as also of this Court, as referred to hereinbefore, it will thus be evident that any appointment which was made by a person having no authority to do so or the appointments which have not been made following the mandatory provisions of the Recruitment Rules and Articles 14 and 16 of the Constitution, such appointments should be held to be a nullity. In this view of the matter, in my opinion, this Court in exercise of its writ jurisdiction cannot direct regularisation of the service of the employees when the same would be violative of Articles 14 and 16 of the Constitution.
9. In the case of Vijay Kumar v. The State of Bihar and Ors. reported in 1993 (1) PLJR 99, the order of cancellation of the appoinment of the petitioners with immediate effect was challanged as illegal. Their Lordship of this Court after considering the various judgments of the Supreme Court as also of this Court held as under:
It is now well known that an order of appointment made in violation of the mandatory provisions of the recruitment's rules as also the provisions of Articles 16 of the Constitution of India is a nullity.
It is now well known that any appointment made in violation of the mandatory provisions of the Recruitment Rules as also Articles 16 of the Constitution of India, renders an appointment nullity.
Reference in this connection may be made to Satish Kumar and Ors. v. The State of Bihar and Ors. reported in 1990 (1) PLJR 219. Udai Kumar Sharma v. Registrar, Co-operative Societies, Bihar and Ors. reported in 1989 PLJR 952; Bijendra Singh v. State of Sikkim reported in 1990 LIC 43; Rakesh Ranjan Verma and Ors. v. State of Bihar and Ors. reported in 1991 (1) PLJR 398; Mahendra v. Deputy Commissioner, Palamau reported in 1989 BLT 29 M.L. Gupta v. Instrumentation Ltd. reported in 1992 (1) PLJR 137.
It is also well known that the rule of natural justice, must not be stretched too far. Only too often, the people who have done wrong seek to involve the rules of natural justice so as to avoid the consequences see 1876 (3) AER 796.
10. Learned Counsel appearing on behalf of the petitioners relied upon a decision of the Supreme Court in the case of D.K Yadav v. J.M.A. Industries ltd. reported in : (1993)IILLJ696SC . With due respect I am of the view that the decision of that case will not help the petitioners inasmuch as the fact of that case was different. In the case before the Supreme Court the services of the petitioners was terminated because of absence from duty, without leave or previous permission from the Management, which order was being supported by the Management on the basis of the certified Standing Order. In that context their Lordship granted relief. So far the last submission of the learned Counsel that even appointment of the petitioners was illegal when they continue for so many years their services should have been terminated without complying the principles of natural justice. As stated above, the petitioners were made aware by the respondents about their illegal appointment and they were called upon to furnish their appointment letters but the petitioners failed ,to furnish the same on the pretext that the appointment letter was submitted to the office and the same was lost. It is not a case where surprisingly the petitioners were served with a notice of termination of their services rather before doing so enquiry was made on different levels and ultimately the respondents came to conclusion that the said appointments were totally illegal and violative of Articles 16 of the constitution of India.
11. Considering the facts and circumstances of the case and the decisions cited above, I am of the opinion that the order of termination of the services of the petitioners cannot be said to be illegal or violative of principles of natural justice.
12. In the result, this writ application is, accordingly, dismissed. There shall be no order as to costs.