Judgment:
N.N. Tiwari, J.
1. These two appeals have been preferred by the appellants-petitioners against the common judgment passed in their writ applications. The appellants had filed the said writ petitions on a common grievance grounded on the similar facts that they have been working as full time Ayurvedic Medical Officers in the State Ayurvedic Hospitals for more than 10 years, yet their services have not been regularized and they are not getting their salary.
2. According to the appellants they are Graduates in Ayurvedic Medicines and Surgery from recognized institutions and they were registered by the Ayurvedic and Unani Medicines Board under the provisions of Bihar Development of Ayurvedic and Unani System of Medicine Act, 1951. In the year 1983 vacancies for Ayurvedic and Homeopathic doctors were advertised by the Zila Parishad, Chaibasa in the pay scale of Rs. 730-1080. The appellants applied for the post of Ayurvedic doctors and were duly selected after facing the interview. The appellants were thereafter appointed in the year 1986. The appellants gave their joining which was duly accepted by the Secretary, Zila Parishad. They were posted as Vaidya (Ayurvedic Medical Officer) at different hospitals. The appellants were paid their salary. In the meanwhile, the State of Bihar decided to take over all the Ayurvedic, Homeopathic and Unani dispensaries run by the Zila Parishad by Memo No. 78, dated 6.2.86. Pursuant to the said decision for taking over, the Secretary, Zila Parishad, Singhbhum requested the District Deshi Chikitsa Officer, Singhbhum by letter No. 586, dated 27.6.86 to take charge of all the taken over dispensaries by 30.6.86 and to pay their salary for the month of June 1986 onwards from the office of the District Deshi Chikitsa Officer, Singhbhum. But the salary of the appellants, who were posted at different dispensaries, were not paid. Thereafter, the appellants filed representations requesting the District Deshi Chikitsa Officer for payment of their salary, who referred the same to the Director, Deshi Chikitsa, Bihar. Several reminders were also sent, but without any result. Similarly situated persons in the meantime preferred writ application being CWJC No. 2182/96 (R) wherein an interim order was passed directing the authorities to pay salary to the petitioners of the said case. The said persons were paid salary by that order, but the appellants were not paid their salary. However, while making payment of salary to the said persons up to October 1997, the State-respondents decided to return their services and also of the appellants to the Zila Parishad, Singhbhum treating them as on deputation. The respondents issued another letter bearing No. 554, dated 15.11.97 whereby the appellants were unilaterally relieved w.e.f 15.11.1997 directing them to join Zila Parishad after making over charge to the compounder of the dispensary. According to the appellants, they have been regularly serving under the State Government for about 12 years since after taking over of the dispensaries by the State and they were not on deputation in the State Government. Other similarly situated persons have been working and are getting their pay regularly while the appellants have been denied the same in spite of regularization of their services. The respondent's action is thus wholly discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
3. Zila Parshad, Singhbhum (respondent No. 5 in both the writ applications and appeals), in its affidavit has supported the contention of the appellants including their initial appointment and subsequent taking over of the dispensaries by the State Government., It has been stated that since all the dispensaries have been taken over by the Government vide Notification No. 78 De Chi/Est, dated 6.2.86 w.e.f 1.12.85, there is no post for absorption of the services of the appellants under Zila Parishad.
4. The State Government, however, has contested the appellant's claim by filing counter affidavit on behalf of the respondent Nos. 1-4. It has been stated, inter atia, that the appellants were not appointed by the Health Department rather they were appointed by Zila Parisad. It has been stated that the dispensaries were taken over by the said authorizes w.e.f 1.12.85 and as such Zila Parishad was not a competent authority for making their appointments. The appellants were appointed in the year 1986 after the date of taking over of the dispensaries. It has been submitted that the payment of salary were made to some other persons in compliance of the direction of this Court and that the respondent No. 4 has directed to return the services of the appellants to the Zila Parishad alter making payment of working period by letter No. 16/V-1-60/97, dated 20.10.1997 (Annexure-A to the counter affidavit). The payments of salary have been accordingly made from June 1986 to October 1997 and thereafter the services have been returned to the Zila Parishad.
5. The relevant admitted facts in this case are that the vacant posts were advertised for appointment of Ayurvedic Medical Officer (Vidya) in the year 1983 by the Zila Parishad, Singhbhum. The appellants applied for the said post, appeared in the interview and were selected. Thereafter, an appointment committee was constituted to consider the recommendation of the interview Board. The appellants were appointed by the said committee as Ayurvedic Medical Officer (Vaidya) in the pay scale of 1000-50-1700-EB-60-1820 and the appellants joined their respective posts under the Zila Parishad, Singhbhum. The Government, thereafter, issued notification by Memo No. 78, dated 6.2.1986 for taking over all the Ayurvedic, Homeopathic and Unani dispensaries run by Zila Parishad. All the dispensaries were then taken over by 6.2.1986. After the taking over, the appellants were not paid their salary whereas some others were paid their salary including those who are similarly situated. The appellants were also subsequently paid their salary up to October 1997 and after making the said payments, the Government-respondents sought to return the appellants services to Zila Parishad, Singhbhum. By another letter dated 554, dated 15.11.1997, the District Deshi Chikitsa Officer, Singhbhum, Chaibasa relieved the appellants w.e.f 15.11.1997 and directed the appellants to join the Zila Parishad after making over the charge.
6. From the aforesaid admitted facts it is evident that for the first time in the year 1997 the State-respondents decided to return the services of the appellants to Zila Parishad, Singhbhum treating them on deputation in the State Government by Memo No. 16/C-1-60/97-1 Patna, dated 21.10.1997 (Annexure-10 to the LPA No. 484/04) and by another letter No. 554, dated 15.11.1997, the District Deshi Chikitsa Officer, Singhbhum, Chaibasa relieved the appellants w.e.f 15.11.1997. The respondents have thus accepted that the appellants were appointed to the said posts, that their services were taken over as for back as in the year 1986 (which is now being termed as 'deputation' contrary to the notification dated 6.2.86) and they were paid salary up to October 1997 in the prescribed scale. Surprisingly, thereafter, the State Government sought to return their services to the Zila Parishad, where there is no such existing dispensary after 1986. The State Government once took over the dispensaries and the services of the appellants and others and paid salary for a long period and then took a 'IT- turn disputing the said facts and alleging the appellants' service in the Government as on deputation, without any basis.
7. Although by notification dated 6.2.1986 the State Government decided to take over of all the Ayurvedic, Homeopathy and Unani medical dispensaries, the actual taking over took place after the appointment and joining of the appellants in the dispensaries. They were also paid salary by the State Government up to October 1997. In that view, even if the notification for taking over was of a prior date, the appellants were allowed to continue under the State Government treating them in Government service and paying their salaries as such and in that view their appointment cannot be held illegal as they were posted and working on the date of actual taking over in the month of June 1986. Their appointments were made by following the due process by the competent authorities before the actual taking over of the dispensaries as well as of the services of the appellants. Thus applying the rule of de facto doctrine based on the public policy, appellants' appointment can not be said to be illegal and they cannot be removed from the Government service under the cloak of so called exercise of returning their services to nonexistent dispensaries under the Zila Parishad. Learned Single Judge without taking into consideration the said aspect as well as the play of doctrine of de facto in the facts and circumstances of this case has erroneously observed that the appointment of the appellants after the said notification dated 6.2.1986 issued by the State Government for taking over of all the Ayurvedic, Homeopathic and Unani dispensaries cannot be held to be legal and valid and on that basis, has erroneously dismissed the appellant's writ applications.
8. From the facts appearing hereinbefore as also the Unani, Deshi Chikitsa and Homeopathy dispensaries having been taken over by the State Government from the Zila Parishad in 1986, there is no post for adjusting the appellants if their services are returned to the Zila Parishad. Such being the circumstance, the impugned order for returning the appellants' services to Zila Parishad, renders the petitioners jobless which amounts to illegal removal from their long services and without even giving them any prior notice and opportunity of hearing. The said action of the respondents is wholly arbitrary, illegal and violative of the principles of natural justice as also of Articles 14, 16 and 21 of the Constitution of India. The impugned part of the order issued by Memo No. 16/C-1-60/97-1 (Wo.Sa. Koshang), dated 21.10.1997 is wholly illegal and vitiated. The order of the District Deshi Chikitsa Officer, Singhbhum, Chaibasa as contained in letter No. 554, dated 15.11.1997 is also illegal and arbitrary.
9. For the reasons aforesaid, the part of the order dated 21.10.1997 (Annexure-10) by which the appellant's services have been sought to be returned treating them on deputation as also the letter No. 554, dated 15.11.1997 issued by the District Deshi Chikitsa Officer, Singhbhum Chaibasa (Annexure-11) are quashed. The order of the learned Single Judge is set aside and the writ applications of the appellants-petitioners are allowed. The appellants are held entitled to get their current as well as arrears of salary as also for their proper placement on the post they were holding at the time of taking over of the respective dispensaries by the State Government or any other suitable post with all the consequential benefits including upgradation of scale/promotion as the case may be. The respondents shall pay arrears of appellants' salary within a period of two months, failing which the appellants shall be entitled to get interest @ 5% per annum on the arrears from the date(s) the salary is due up to the date of payment of the same.
However, in the circumstances of the case there shall be no order as to costs.
S.J. Mukhopadhaya, J.
10. I agree.