Judgment:
Permod Kohli J.
1. All these petitions, involve common questions of law and are being, disposed of by this common order.
2. W.P. (S) No.722 of 2004. In this case, petitioner was appointed on compassionate grounds vide order No. 588 dated 07.05.2002 being the wife of Brajajul Islam pursuant to the recommendations of the Compassionate Appointment Committee in the meeting held on 28th of February, 2002 along with two others. This was followed by another order issued by the Civil Surgeon-cum-Chief Medical Officer, Pakur under Memo. No. 722 dated 30th of May, 2002. It is alleged that petitioner joined in the month of June, 2002 and since then he is performing her duties. Petitioner is aggrieved of the order No. 1441 dated 08th of September, 2003, whereby salary of as many as 32 persons has been stopped on the ground of their appointments being fake and illegal by the Civil Surgeon-cum-Chief Medical officer, Pakur under the directions of the Deputy Commissioner, Pakur, conveyed vide letter No. 2682 dated 06th of September, 2003 till further orders of the Commissioner, Santhal Pargana Division, Block-Dumka. It is alleged that the petitioner's late husband was appointed vide letter No. 292 dated 30th of March, 1984 by the Regional Deputy Director of Health Services, Bhagalpur, who died in harness on 05th of November, 2001 leaving behind petitioner as his widow and five minor children. After the death, the family pension and gratuity of the deceased husband of the petitioner has also been sanctioned and P.P.O. No. PKR FMW 10265 and G.P.S. No. 536 (04-05) dated 14th of September, 2004 has been issued by the Accountant General during the pendency of this writ application.
3. In the counter affidavit filed by the Civil Surgeon-cum-Chief Medical Officer, it is stated that the Chief Secretary of the Bihar in the year 1999 directed the Divisional Commissioners of the State to probe the illegal and forged appointment made in the Health Department. The Deputy Commissioner constituted a Committee, headed by the Civil Surgeon and Additional Collector, Pakur. The Committee submitted its Report stating, therein that 32 illegal appointments were made in District Pakur. On receipt of this Report, the District Commissioner has reported the matter to the Divisional Commissioner, S.P. Division Dumka and sought further instructions and in the meanwhile, the salary of all such identified illegal appointees has been withheld. It is further stated that the Civil Surgeon-cum-Chief Medical Officer has been directed vide letter No. 467 dated 08th of March to take appropriate action. In view of the order dated 10th of February, 2004, passed by the Hon'ble High Court and during the pendency of this writ petition, petitioner was served with memo. No. 315 dated 03rd of August, 2004 along with letter contained in Memo No. 619 (5) dated 07.07.2004 addressed to the Civil Surgeon-cum-Chief Medical Officer, Pakur, whereby Civil Surgeon, Pakur was communicated that it is not justified to take work from the illegally appointed persons and in compliance of the order dated 25th of November, 2003 passed in (W.P.S) No. 5703 of 2003, Radhe Shyam Prasad Singh and all illegal appointed persons be removed and department be informed. It is stated that on the basis of this letter, petitioner handed over the charge to one Mrs. Swarn Lata Kumari and petitioner's service has been terminated on 03rd of August, 2004. Petitioner has, accordingly, challenged these two orders dated 03rd of August, 2004 and 07th of July, 2004. Petitioner has also placed on record the copy of the interim order dated 20th of February, 2003 passed in W.P. (S) No. 5703 of 2003, whereby a direction was issued by this Court that if the Respondents are taking work from the petitioner, salary shall not be stopped. The Accountant General has filed his counter, stating therein that on receipt of Pension papers and service Book from the Government, he has issued P.P.O. and G.P.O. dated 14th of September, 2004 authorizing Family pension and Gratuity. Petitioner has filed a supplementary affidavit stating, therein, that W.P. (S) No. 5703 of 2003 has been allowed by this Court vide order dated 29th of October, 2004 and Letters Patent Appeal preferred there from has also been dismissed, hence, there is no basis for issuance of the impugned orders.
4. In W.P. (S) No. 723 of 2004, petitioner was engaged on daily wages on 01st of August, 1980. A decision was taken to absorb all the daily wages employees and information was sought from all concerned vide letter dated 14th of April, 1983. Vide letter dated 30th of March, 1984, petitioner was absorbed with effect from the date of the initial appointment. Formal order of appointment was also issued on 29th of November, 1984 by the In-charge Chief Medical officer, Dumka. Petitioner submitted his joining on the same day and was assigned works in Small Pox Eradication Programme. Thereafter petitioner was absorbed in Family Planning Department. It is stated that vide letter dated 02nd of March, 1990, petitioner was asked to submit the original documents for verification, which he submitted and thereafter he was transferred to Primary Health Centre at Maheshpur on 17th of July, 1991.
5. W.P. (S) No. 793 of 2004. Petitioner, in this case was registered with the Employment Exchange. He was appointed against the vacant post vide order No. 177 dated 11.03.1988 by the Director-in-Chief, Health Services, Bihar, Patna. He joined on 26th of March, 1988. It is stated that petitioner was asked vide letter dated 02nd of March, 1990 to produce documents for verification. Petitioner appeared on 16th of April, 1990 before the Deputy Development Commissioner, Sahibganj. It is stated that an enquiry was made into the illegal appointments and a list of 26 persons was published on 30th of November, 1995 and petitioner's name did not figure in the said list. Petitioner was again asked vide letter No. 950 dated 01st of July, 1998 to submit the documents regarding his appointment. It is stated that petitioner submitted all these documents. He was again asked vide letter dated 14th of September, 1999 to explain whether any advertisement was issued or not and, if so, for which post. He replied this notice also and once again submitted all the relevant documents and the show cause on 27th of November, 1999. In the meanwhile the name of all 61 illegally appointed persons was published but the name of the petitioner was not included in the said list. It is further alleged that some queries were made from the petitioner and he replied to the same. Petitioner was asked from time to time to submit documents, which he provided.
6. W.P. (S) No.786 of 2004. In this case, petitioner was appointed on the post of Primary Health Worker on 03rd of March, 1987. Thereafter he was transferred to vacant sanctioned post in Primary Health Centre, Pakuria. He was asked to appear in person on 16th of April, 1990 with all original documents to verify the genuinity of the appointments vide letter Dated 02.03.1990. It is stated that petitioner appeared in response to above letter but suddenly his salary was stopped. Thereafter confirmation of his appointment was called from the Civil Surgeon-cum-Chief Medical Officer Gopalganj vide letter dated 04.11.1990. On receipt of confirmation his salary was released vide letter dated 18th of July, 2001. Some queries were made from the petitioner and again vide letter dated 30th of April, 2001 he was asked to submit certain documents. Thereafter, salary of the petitioner was stopped vide letter dated 23rd of November, 2002. It is stated that on verification, salary of the petitioner earlier stopped vide letter dated 23rd of November, 2002, was released vide letter dated 23rd of December, 2002.
7. In W.P. (S) No. 669 of 2004, petitioner was registered in the Employment Exchange on 19th of April, 1983. He received letter dated 24th of June, 1985 for Interview and was asked to appear on 07.07.1985. He was engaged/appointed on the post of 'Pharmacist' vide letter dated 19th of November, 1985. He joined on 26th of November, 1985. He was given his first Time bound promotion on 26th of June, 1996. His services were confirmed as Pharmacist with effect from 26th of November, 1988 vide order dated 10th of July, 1996. Vide letter dated 27th of April, 1998 of the Civil Surgeon-cum-Chief Medical Officer, petitioner was directed to submit certain documents in connection with his appointment. It is stated that he submitted all the documents. Vide letter dated 14th of September, 1999, he was again asked to submit documents, which were also provided by him in the year 2001. He was again asked to submit all the relevant documents vide letter dated 18th of July, 2001. He was further asked vide letter dated 01.09.2001 to fill up the Form, which direction was complied by him.
8. In W.P. (S) No. 674 of 2004, it is stated that petitioner was working voluntarily and vide letter dated 26th of July, 1986 recommendations were made for his appointment. Government took a decision vide order No. 522 dated 02nd of March, 1989 to regularize the services of various persons with effect from 01st of April, 1988 in the pay-scale mentioned against their names. Petitioner's name figures at Serial No. 12. He was transferred to Primary Health Centre, Amrappa vide order dated 30th of March, 1998, and again transferred to Pakur vide order dated 18th of May, 1998. It is stated that petitioner was not paid salary for some period and vide letter dated 13th of September, 1981, he was directed to fill up a Form, which he did.
9. In W.P. (S) No. 725 of 2004 petitioner was registered with the Employment Exchange. His name was forwarded by the Employment Exchange vide letter dated 30th of October, 1986 to the Establishment Committee. He was asked to appear for interview. After interview, he was appointed vide letter dated 22nd of December, 1986 to the post of Statistical Investigator temporarily. Thereafter he was appointed as Clerk against the available vacancy and was given the charge of Cashier. Petitioner appeared and passed the Accounts Examination in the year 1990 and he was confirmed on the post of Clerk/Cashier vide order dated 24th of August, 1996 with effect from 13th of July, 1991. Civil Surgeon-cum-Chief Medical Officer, Sahebganj confirmed his appointment vide his letter dated 15th of June, 2001 and he is performing his duties regularly and paid his salary.
10. In all these petitions validity of the order dated 08th of September, 2003 has been called in question and the stand of the State is also same.
11. The basis for passing the impugned order is said to be that the appointments are fake and illegal. At the first place, it has not been indicated, which of the appointment is fake i.e. based upon forged documents and which appointment is illegal i.e. made without inviting applications and holding any process of selection. As noticed above, in some cases, names were forwarded by the Employment Exchange and in some cases even interviews were conducted. The stand of the State that an enquiry was got conducted and the appointments were found fake/illegal is also of no consequence as admittedly this enquiry was conducted at the back of the petitioners and without associating them in any such enquiry. Since the allegations are such that at least the petitioners had have a right to explain. It is also pertinent to say that in some of the writ petitions, petitioners were earlier asked to explain and they submitted their documents but at no stage any one of them was informed that the explanation tendered or the documents produced were not genuine. The State-Respondent has relied upon a number of judgments. In the case of Nand Kishore Raut and Ors. v. State of Bihar and Ors. reported in (1991) 1 BLJR 441 a full Bench of the Patna High Court observed that the appointments subject matter of those writ petitions were purely temporary and on ad hoc basis and no right is created in the incumbents and principles of natural justice do not apply to cases like this. Those appointments were found to have been made in defiance of the ban imposed by the Government on such appointments. In the case of State of M.P. and Ors. v. Shyama Pardhi and Ors. reported in : AIR1996SC2219 , selection was made of the persons, who were not possessed of statutory qualifications. They were also sent for training and immediately thereafter they were served with the notices for termination on the ground that they were not possessed of the statutory qualifications. This notice was challenged and the Hon'ble Supreme Court held that principles of natural justice are not attracted in this case. In the case of Lalan Kumar Singh and Ors. v. The State of Bihar and Ors. reported in (1995) 2 PLJR 309, a Division Bench of this Court found that the appointments were made not only in violation of Article 14 and 16 but also contrary to the recruitment Rules and it is under these circumstances, the Court held that the principles of natural justice were not required to be followed and no regular enquiry as contemplated by Rule 55 is necessary. The State has also relied upon a recent judgment of the apex Court in the case of Mohd. Sartaj and Anr. v. State of U.P. and Ors. reported in 2006 (2) PLJR 167. In this case the Hon'ble Supreme Court was examining the cases of those persons, who lack basic qualifications and the cancellation order was passed within a very short span of time. It is under these circumstances, it was held that no prejudice has been caused to the appointees by not serving notice or providing opportunity of hearing before order of cancellation was issued. In the case of Branch Manager, MP. State Agro Industries Development Corpn. Ltd. and Anr. v. Shri S.C. Pandey reported in 2006 (2) PLJR 147, the Hon'ble Supreme Court was examining the validity of the award passed by the Labour Court and the workman was allowed to continue by an interim order of the Court. It is under these circumstances, the Hon'ble Supreme Court observed as under:-
The appointment in our opinion cannot be made to suffer only owing to mistake on the part of the Court. The Respondent also cannot take advantage of a wrong order.
12. In the case of M.P. Housing Board and Anr. v. Manoj Shrivastava reported in 2006 (2) PLJR 151, the Hon'ble apex Court held that in cases, where no post was available at the time of appointment, such an appointment would be void.
13. In all the cases relied upon by the Respondent-State, the appointments were either without mandatory qualifications or temporary/ad hoc and appointments were cancelled within the short span. In the present case, admittedly appointments were made between the years 1984 to 1988, the impugned order came to be passed on 08th of September, 2003 i.e. after a lapse of more than 15 years of the appointments. During all this period, the employees were transferred from one place to another. Employee in W.P. (S) No. 722 of 2004 even died during the service in the year 2001, his wife was appointed on compassionate ground and even pensionary benefits have been allowed. Similarly petitioner in W.P. (S) No. 669 of 2004 was given time bound promotion, which is granted after a period of ten years of service. In almost every writ petition, employees were asked to submit their explanation in the year 1990. As averred in the writ petitions, they furnished the documents but consequently no orders were passed and they were allowed to continue till the passing of the impugned order. If the authorities were dissatisfied with their explanation, they should have been terminated then and there in the year 1990 itself or immediately thereafter. Vide order impugned dated 08th of September, 2003, their salary has been withheld. This very order became subject matter of challenge in W.P. (S) No. 5705 of 2003 by one Radhe Shyam Prasad Singh and this Court vide an interim order dated-25th of November, 2003 directed the payment of salary if work has been taken from them. It is after this order that the services of the petitioners have been terminated referring to the interim order dated 25th of November, 2003 passed in W.P. (S) No. 5705 of 2003.
14. Interim order Dated 25.11.2003 is reproduced as under:-
J.C. to S.C. II prays for time to seek instruction and file counter affidavit.
Put up this case after four weeks.
In the meantime, if, the respondents are taking work from the petitioner then salary shall not be stopped.
15. From perusal of the interim order, it is apparent that there was no direction for termination by this Court, rather the rights of the petitioner in the aforesaid writ petition were protected. In any case this writ petition was finally allowed vide judgment dated 29th of October, 2004 and the order impugned dated 08th of September, 2003 has been quashed. This Hon'ble Court has quashed the order on two grounds:-
16. Firstly, that the enquiry has been conducted beyond the time allowed without seeking any extension and secondly the order has been passed in violation of the principles of natural justice. Therefore, the order impugned in these petitions already stands quashed in the aforesaid judgment. The order has not been quashed qua the petitioner in that case but as a whole. A letters patent Appeal preferred therefrom has also been dismissed by a Division Bench of this Court. In the case of Seema Devi and Ors. v. The State of Jharkhand and Ors. Reported in 2005 (2) J.L.J.R. 347 a Division Bench of this Court has set aside the order of termination of an employee, who was appointed on compassionate basis after the death of her husband. Her appointment was cancelled by canceling the appointment of her deceased-husband being declared illegal. What has been observed by the Division Bench of this Court may be noticed as under: -
So far as petitioner Seema Devi is concerned, she was appointed on compassionate ground and the Respondent-State has nowhere alleged that in the matter of appointment of petitioner Seema Devi, the procedure of compassionate appointment was not followed. In such circumstances, in absence of such finding and she having been appointed on compassionate ground, it was not open for the Respondents to terminate her service on the ground of illegal appointment of her husband.
17. In view of the law laid down in the aforesaid Division Bench judgment and the fact that the order impugned herein, already stands quashed, in W.P. (S) No. 5705 of 2003 decided on 25.11.2003 the order dated 08th of September, 2003 is non est in the eyes of law as a consequence the action of the Respondents in terminating the services of the petitioners is also illegal and unwarranted, particularly taking into consideration the fact that in the interim order of this Court dated 25th of November, 2003 passed in W.P. (S) No. 5705 of 2003, this Court never passed any order for termination. As a consequence petitioners in all these cases shall be reinstated forthwith and will be deemed to be in continued services with all consequential benefits.