Fuldev Yadav v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.17382 of 2019 ====================================================== Fuldev Yadav, Son of Dukhi Yadav, Resident of Ward No.6, Mujiyasi Parsa, Parsa Ghoghardiha, District- Madhubani, Bihar- 847402. ... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary, Health Department, Government of Bihar, 1st Floor, Vikas Bhawan, Bailey Road, Patna. 2.

The Principal Secretary, Heath Department, Government of Bihar, 1st Floor, Vikas Bhawan, Bailey Road, Patna.

3.

The Director-in-Chief (Disease Control), Directorate, Health Services, Bihar, Patna.

4.

The Deputy Director, Health Services, Bihar, Patna. 5.

The Civil Surgeon-cum-Chief Medical Officer, Madhubani. 6.

In Charge Medical Officer, Primary Health Centre, Khutawna, Madhubani. 7.

The In-Charge Medical Officer, Referral Hospital, Foolparas, Madhubani. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Sanjeet Kumar, Advocate Mr. Digvijay Narayan Singh, Advocate For the Respondent/s :

Mr. Ramadhar Singh, GP-25 Mr. Anirudh Kumar Singh, AC to GP-25 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 25-08-2022

1. This writ application has been filed for quashing of order dated 25.06.2019 passed by the Director-in-Chief (Disease Control), Directorate of Health Services, Government of Bihar, whereby the services of the petitioner as "Ambulance Driver" has been found to be void ab initio.

2. The brief factual background is that the petitioner claims to have been engaged on daily wages basis as ambulance driver on 10.07.1989, which date is evident from Annexure-P/3

2/8 to the writ petition. The petitioner further claims that his services were regularized on the post of driver by the Civil Surgeon-cum-Chief Medical Officer, Madhubani under memo dated 02.08.1991 bearing no.1789. Some appointments came under scrutiny of Hon'ble Lokayukt, Bihar, Patna, wherein a report was submitted by the Civil Surgeon, Madhubani. The petitioner's appointment was considered to be in accordance with law in the proceedings before the Hon'ble Lokayukt, Bihar, however, a show cause notice was issued to the petitioner on 28.05.2019 by the Director-in-Chief (Disease Control), Health Services, Bihar, regarding the validity of the petitioner's appointment. The petitioner responded to the show cause notice by his reply which was received on 01.06.2019. The petitioner's response is worth taking note of and is accordingly being reproduced herein:

" सेववा म, ननिदसेशक प्रमुख, ररोग नव0 स्ववास्थ्य सेववायम, नबिहवार, पटनिवा। दवारवा:- नसनवल सर्जनि, मधमुबिनिनी। नवषय:- स्पषनीकरण समनपर्जत करनिसे कसे संबिसंध म। प्रसंग:- भवदनीय, ननिदसेशवालय स्ववास्थ्य सेववायम, नबिहवार, पटनिवा कसे सं0-749 (4), नदनिनांक:-2.05.2019 तथवा नसनवल सर्जनि, मधमुबिनिनी कसे जवापनांक:-1433, नदनिनांक:- 28.05.2019 महवाशय, भवदनीय ननिदसेशवालय स्ववास्थ्य सेववायम, नरलवा पटनिवा

3/8 कसे स0:- 749 (4) नदनिनांक 28.05.2019 तथवा नसनवल सर्जनि मधमुबिनिनी कसे जवापनांक:- 1493 नदनिनांक 20.05.2019 दवारवा स्पषनीकरण प्रवाप्त कर नदनिनांक 02.06.2019 तक उपलब्ध करवानिसे हसेतमु ननिदर्देश प्रवाप्त ह। उक्त स्पषनीकरण कसे सम्बिन्ध म मुझसे कहनिवा ह नक नसनवल सर्जनि मधमुबिनिनी कसे जवापनांक:- 1530, नदनिनांक:- 10.07.1989 कसे दवारवा दहननिक पवानरश्रनमक पर एम्बिमुलमस चवालक कसे रूप म कवायर्ज करनिसे हसेतमु स्वनीककनत उपरवान्त म नद०-18.07.1989 करो प्रभवारनी नच० पदवा०, रसेफरल फमुलपरवास करो यरोगदवानि समनपर्जत नकयवा | प्रभवारनी नच० पदवा० रसेफरल उपरवान्त फमुलपरवास अपनिसे पतनांकक-224, नदo:-05.12.1989 दवारवा सेववा चवालक कसे पद पर ननियनमत करनिसे हमुतमु उप ननिदसेशक स्व० सेववायम नबिहवार, पटनिवा करो अनिमुशसंसवा नदयसे। उप ननिदसेशक, स्व० सेववायम नबिहवार पटनिवा अपनिसे सं0-70(22) नदनिनांक:- 18.01.

1990 दसवास नसनवल सर्जनि, मधमुबिनिनी करो नवभवागनीय ननिनहत प्रवावधवानिनों कसे अन्दर सेववा ननियनमत करनिसे हसेतमु आग्रह नकयसे। नसनवल सर्जनि, मधमुबिनिनी अपनिसे पतनांकक-1791 नदनिनांक:-2.08.1991 दवारवा प्रभवारनी नचo पदवा० रसेफरल अस्पतवाल फमुलपरवास कसे पत सं 0-249 नदनिनांक 28.07.1990 कसे आलरोक म नद०-18.07.1989 से लगवातवार दहननिक मरदरनी पर कवायर्जरत कसे फलस्वरूप चवालक कसे वसेतनिमवानि म सेववा ननियनमत नकयसे। उक्त आदसेश कसे पवालनि म ननियनमत चवालक कसे पद पर यरोगदवानि नतनथ 03.08.

4/8 (फमुलदसेव यवादव) रनीप चवालक प्रवा० ववा० कसेन्द, खमुटटौनिवा |"

3. The response has not been found satisfactory and finding the petitioner's appointment to be void ab initio his services have been terminated by the impugned order.

4. Counter affidavit has been filed on behalf of respondent no.5 as also by the Directorate (respondent no.3). In sum and substance, the stand of the respondent authorities is that petitioner's engagement on daily wages was required to be done by a Committee headed by the District Magistrate from a panel created at the district level as per the extant procedure contained in letter dated 03.12.1980 bearing no.16441 addressed to all Divisional Commissioners and District Magistrates by the Personnel and Administrative Reforms Department laying down guidelines for appointment of Class-4 employees.

5. From the petitioner's response to the show cause notice it is evident that the petitioner's engagement on daily wages basis or regularization was not based on any District Level Panel, nor was the same done by a Committee headed by the District Magistrate. His engagement on daily wages basis and subsequent regularization within a very short span of time is by an incompetent authority. The petitioner has also not placed on record a copy of the letter dated 10.07.1989 bearing no.1538,

5/8 purporting to be the order of his engagement on daily wages basis.

6. On consideration of the show cause, the authorities have found the petitioner's engagement as well as regularization, both to be illegal and void ab initio.

7. The petitioner's counsel has submitted that the petitioner has been visited by the impugned order after a long period of service rendered by the petitioner, post his regularization.

8. The least that was required to be done was to subject the petitioner to a duly constituted proceedings by serving a charge memo and complying with the principles of natural justice. In absence of any charge memo and without conducting any proceedings the impugned order purporting to declare the petitioner's appointment void ab initio is unsustainable. The petitioner's counsel has placed reliance on decision of the Apex Court in the case of Secretary, State of Karnataka & Ors. versus Umadevi & Ors. reported in (2006) 4 SCC 1.

9. The submission of the parties, in the opinion of the Court, has to be viewed having regard to the facts of the instant case. From the petitioner's reply to show case it is obvious that his engagement/regularization/appointment was not done by the competent authority (District Level Committee), from any

6/8 District Level Panel. The petitioner also has not produced the letter dated 10.07.1989 purporting to be the letter under which he has been engaged on daily wages basis. There is also nothing on record to show that prior to the petitioner's engagement/regularization any established procedure was followed, or that it was preceded by any advertisement. The petitioner also does not claim that his engagement/regularization was by the competent authority (District Level Committee), pursuant to an advertisement from a district level panel.

10. It is thus clear from the averments made in the writ petition as also the petitioner's reply to the show cause notice that the initial appointment of the petitioner is without following any procedure and in violation of Article 14 and 16 of the Constitution of India. The then Civil Surgeon, apparently without issuing any advertisement and without considering the departmental instructions for engagement/regularization, has proceeded to induct the petitioner in government service.

11. From the petitioner's reply to the show cause notice it is apparent that even his initial engagement on daily wages basis was not against any sanctioned post. Though he claims his engagement on daily wages basis on the post of "Ambulance Driver", but his regularization has been done on the post of

7/8 "Driver".

12. The reliance placed by the respondents on decision of the Apex Court in the case of State of Bihar and Others versus Kirti Narayan Prasad in Civil Appeal No. 8649 of 2018 in the opinion of this Court is correct. This appears to be a case covered by the said decision of the Apex Court and a case where the order of appointment itself from its very inception lacks any sanctity whatsoever.

13. This Court would consider it appropriate to quote paragraph 17 of the judgment of the Hon'ble Apex Court in the case of Kirti Narayan Prasad (supra) which reads as follows:- "17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeoncum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer.

They were given notice to establish the

8/8 genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee.

The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio.

We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise.

Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise. "

14. This Court does not find any merit in the writ petition for the reasons indicated hereinabove.

15. The writ application is accordingly dismissed. (Madhuresh Prasad, J) shashank/- AFR/NAFR NAFR CAV DATE NA Uploading Date Transmission Date NA