IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1379 of 2010
1. BABU LAL SAH S/O YADU NANDAN SAH POSTED AS
LABOUR (FIELD WORKER CLASS-IV) IN THE OFFICE OF
INCHARGE DISTRICT MALARIA OFFICER, BETTIAH
RESIDENT OF VILLAGE BHAGARWA,
P.S.MANJHOLIA,DISTT-WEST CHAMPARAN
Versus
1. THE STATE OF BIHAR , THROUGH THE DIRECTOR-IN-
CHIEF, HEALTH SERVICES BIHAR,PATNA
2. THE CHIEF MALARIA OFFICER BIHAR,PATNA
3. THE INCHAGE , DISTRICT MALARIA OFFICER BETTIAH,
EAST CHAMPARAN
with
CWJC No.1438 of 2010
1. BASUDEO SAH S/O LATE RAM NARAYAN SAH POSTED AS
LABOUR (FIEND WORKER CLASSIV) IN THE OFFICE OF
INCHARGE DISTRICT MALARIA OFFICER,BETTIAH
RESIDENT OF VILLAGE BHAGARWA, P.S.MANJHLIA, DISTT-
WEST CHAMPARAN
Versus
1. THE STATE OF BIHAR , THROUGH THE DIRECTOR-IN-
CHIEF, HEALTH SERVICES BIHAR, PATNA
2. CHIEF MALARIA OFFICER BIHAR,PATNA
3. THE INCHARGE , DISTRICT MALARIA OFFICER
BETTIAH, EAST CHAMPARAN
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8 9.11.2010 Petitioners are the persons, whose services were dispensed
with on the ground of irregularity in appointment. They along with
several hundred approached this Court. The matter then traveled to the
Division Bench. While the matter was pending before the Division
Bench in LPA, the Division Bench directed the State to scrutinize the
cases of all individuals, who were affected by the order of termination
of their services and categorize them basically in two categories i.e.
irregular appointment and illegal appointment .A High Powered
Committee headed by the Director-in Chief, Health Services, was
formed. It submitted its report to the Court on affidavit. In the said
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report, the Committee categorized the petitioners as irregular
appointees. By virtue of the said placement, the petitioners became
entitled to be regularized. Ultimately, all L.P.As were disposed of,
which judgment is since reported as State of Bihar -v- Purendra Sulan
Kit, 2006(3) PLJR 386.By then the judgment of Constitution Bench of
Apex Court in the case of Secretary, State of Karnataka-v- Uma Devi
since reported in 2006(2)PLJR (SC) 363 was at hand. This Court
disposed of LPAs as per the judgment, as referred to above, and directed
the State to set up a Committee and scrutinize the individual cases. In so
far as persons, who are found to be irregular appointees, they should be
regularized and the rests would be deemed to be dismissed being illegal
appointees. This time when the Committee remained under a new
Director-in Chief, Health Services, it found the petitioners to be illegal
appointees as against irregular in the earlier report. It is this brought the
petitioners to this Court seeking the reliefs as this adversely affects the
petitioners. At first, a counter affidavit was sought to be filed by the
State taking the very existence of the first report but on being shown
that it was a part of the record of LPA proceeding and filed under
affidavit duly sworn by Director-in-Chief, Health Services,the said
affidavit was withdrawn..
A second counter affidavit was then filed. It was then
submitted that as the first report did not bear the signature of all the
members of the Committee though it was filed under affidavit of the
Director-in-Chief, Health Services,it was not acted upon and as such
after retirement of the Director-in-Chief, Health Services under the new
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Director-in Chief, Health Services, a fresh Committee was formed. This
submission is again not correct. The sound reason for the second
Committee is that the first Committee was formed pursuant to interim
order in LPA proceeding. That report was not finally affirmed or acted
upon by this Court.While disposing of LPAs, this Court passed a fresh
direction to constitute a fresh Committee to examine the matter and that
is how the second Committee came into being after disposal of LPAs.
However, question remains as to why irregular appointees suddenly
became illegal appointees.
Here, I may notice that the petitioners were engaged purely
as daily wagers by the Incharge District Malaria Officer . They have
been working continuously for four years and applied for
regularization. The District Malaria Officer forwarded their applications
to the Chief Malaria Officer, Bihar, Patna . The Chief Malaria Officer,
Bihar, Patna then passed an order approving their regularization and
directed the District Malaria Officer to follow up the formality. It is
pursuant to that the petitioners were then regularized way back in the
year 1988 itself. It is now said in the counter affidavit that initial
appointment being by an officer, who was not competent, being illegal.
The petitioners are now categorized as illegal though in the first report
they were shown as irregular because of the categorization that was
followed was that an appointee by incompetent person having
qualification on vacant sanctioned post was to be treated irregular. This
difference changed the situation. From the facts, it would be clear that it
is not in dispute that the petitioners were engaged on daily wage on
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sanctioned vacant posts, who were qualified for permanent appointment
to that post. It was mere in charge on daily wages not an appointment
to the post. On State’s own showing the persons, who could make these
appointments was the Chief Medical Officer, Bihar, Patna. From the
facts, noted above, it would be seen that being daily wagers for over
four years their cases were referred to the Chief Medical Officer, who
granted approval for their regularization. Thus appointments were to be
made upon regularization by the Chief Medical Officer, Bihar, Patna
who on State’s own stand was the competent officer. Thus, on the
facts, it is not in dispute that these appointments /regularizations were
made by the Chief Medical Officer, Bihar, Patna , who was the
competent person to appoint on duly sanctioned post, which was vacant
and for which the petitioners had requisite qualification. That, in my
view, would make it only irregular appointment and cannot be termed as
illegal appointment. To that extent, Five Men Committee report cannot
be sustained. Here, I may notice another aspect from the very judgment
of the Constitution Bench, which is the basis of the judgment of this
Court in LPA cases, where their Lordships in LPA cases have noticed
para 44 of Uma Devi case. In that para itself their Lordships have noted
as under-
“We also clarify that regularization, if any already made, but
not subjudice, need not be reopened based on this judgment”
In the present case, petitioners’ appointments were duly
regularized pursuant to order passed by the competent authority on
sectioned vacant posts. It is not the case of the State that the Chief
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Medical Officer, Bihar, Patna was not the competent to order
regularization. Thus, in my view, petitioners have been wrongly
categorized as illegal appointees. They were rightly shown as irregular
appointees in the first report, as submitted to the Court, the consequence
whereof would be that being irregular appointees, in view of the
judgment of this Court in which petitioners were also parties, they
would be required to be regularized and/or not interfered with and
having been dismissed , would be liable to be taken back as others have
been.
With the aforesaid observations and directions, the writ
petitions stand disposed of.
singh (Navaniti Prasad Singh,J)