The State Of Bihar & Ors vs Subodh Kumar on 20 July, 2011

              IN THE HIGH COURT OF JUDICATURE AT PATNA
                              LPA No.1699 of 2010
1. The State Of Bihar
2. The Secretary Health Department, Bihar, Patna
3. The Director-In-Chief Health Services, Bihar, Patna
4. The Civil Surgeon-Cum-Chief Medical Officer, Araria
5. The In-Charge Medical Officer Primary Health Centre, Jokihat, Distt.- Purnea
                                      Versus
1. Subodh Kumar S/O Sri Vishwanath Prasad R/O Vill.-Karmatard, P.S.- Jamtara,
Distt.- Dumka, Presenty Residing At Jokihat, P.S.- Jokihat, Distt.- Purnea
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03/ 20th July 2011 This Letters Patent Appeal has been filed

against the Judgment passed on 06.10.2009 by the

learned Single Judge in C.W.J.C. No. 1281 of 2009, by

which the learned Single Judge has set aside the

termination order relying on the case of Secretary, State

of Karnataka Vs. Uma Devi and Ors. reported in

2006(2)P.L.J.R.(SC)363, and considered by the Apex

Court in the case of State of Karnataka & Ors Vs. M.L.

Kesari & Ors. reported in (2010) 9 SCC 247. In

paragraph 11 of the Judgment, the Apex Court has

observed as follows:-

“The object behind the

said direction in para 53 of Umadevi

is two fold. First is to ensure that those

who have put in more than ten years

of continuous service without the
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protection of any interim orders of

court or tribunals, before the date of

decision in Umadevi was rendered, are

considered for regularization in view

of their long service. Second is to

ensure that the

departments/instrumentalities do not

perpetuate the practice of employing

persons on daily wage/ ad hoc/ casual

basis for long periods and then

periodically regularize them on the

ground that they have served for more

than ten years, thereby defeating the

constitutional or statutory provisions

relating to recruitment and

appointment. The true effect of the

direction is that all persons who have

worked for more than ten years as on

10.04.2006 (the date of decision in

Umadevi) without the protection of

any interim order of any court or

tribunal, in vacant posts, possessing
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the requisite qualification are entitled

to be considered for regularization.

The fact that the employer has not

undertaken such exercise of

regularization within six months of the

decision in Umadevi or that such

exercise was undertaken only in

regard to a limited few, will not

disentitle such employees, the right to

be considered for regularization in

terms of the above direction in

Umadevi as a one time measure.”

In view of the above law laid down, the

order of termination of the petitioners is illegal.

Admittedly, the petitioners have completed more than

ten years of their service, and have completed about 10

years of service as against the vacant post, appointed by

the competent authority and were paid salary and were

also given promotion after regularization of service and

confirmation. Their appointments cannot be said to be

illegal, which differ from irregular appointment. The

appointment of the petitioners also cannot be said to be
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irregular and as per law laid down in Uma Devi Case in

para 53 and M.L. Keshri’s case. The petitioners were

fully entitled for regularization of his service, therefore,

their termination is bad in law.

The learned Single Judge has rightly allowed

the writ petition and set aside the termination order. The

petitioners shall be reinstated forthwith and salary shall

be paid month to month regularly and arrears of salary

shall be paid within four months. We fully agree with the

Judgment of the learned Single Judge. For the reasons

recorded above, the appeal is devoid of merit.

Accordingly, this L.P.A. is dismissed.

(Prakash Chandra Verma, J.)

(Aditya Kumar Trivedi, J.)
perwez