R.M Doshit, C.J:— This group of matters raise a common issue. They are, therefore, decided by this common judgment. Letters Patent Appeals preferred by the respondent-State. Government arise from a common judgment and order dated 6th October, 2009 passed by the learned Single Judge and the orders made on different dates by the learned Single Judges in respective writ petitions. Some of these Appeals, viz. Letters Patent Appeal No. 560 of 2010 and some others were earlier heard by the Bench of this Court. Under respective orders, the Bench had referred the matters to a Committee comprising Justice Uday Sinha (retired) constituted under the orders of the Bench in the matter of Sohan Roy, [(2010 (2) PLJR 397]. Feeling aggrieved, the concerned writ petitioners approached the Hon'ble Supreme Court. The Hon'ble Supreme Court has, under its order dated 8th August, 2011 made in Petition for Special Leave to Appeal (Civil) No. 16798 of 2010 and other petitions, set aside the direction issued-by the Bench and has remitted the Appeals for hearing and decision on merits.
2. The matter at issue is simple, very commonly found in the claims made by the employees of the State Government, that is that of regularization in service However, this group of matters has a long chequered history. We do not need to delve into the facts in each writ petition. Though the dates, place etc. maybe different, the facts are similar. All the writ petitioners had joined the service of the State of Bihar under the orders made by the concerned Civil Surgeon-cum-Chief Medical Officer of a district. None of the writ petitioners was appointed by a proper legal recruitment process. The modus operandi was to issue a posting order posting the concerned writ petitioners in Class-III or Class-IV service in a primary Health Centre within the jurisdiction of the Civil Surgeon. Most of the writ petitioners were appointed in Class-III service as Basic Health Workers or clerks or in Class-IV service. The Government of Bihar having realized the large scale illegalities committed in appointment by the concerned Civil Surgeon-cum-Chief Medical Officers, all appointments made during 1980s were ordered to be scrutinized. The State Government having found that large number of appointments were made on the basis of the false or forged documents; without following due process of recruitment and mostly without the appointment orders, such appointments were cancelled and concerned incumbents were discharged from service. These orders of discharge came to be challenged before this Court in ??? of writ petitions. This Court, by a common judgment and order in the matter of Sitendra Kumar Singh v. State of Bihar, [2003 (4) PLJR 282], set aside the impugned orders of discharge, from service solely on the ground of violation of the principles of natural justice. All writ petitioners were directed to be reinstated in service without the salary or remuneration for the interregnum period.
3. Since their reinstatement in serv: ice under the orders of the Court, the State Government initiated proceedings to terminate the service of such employees by issuing a show cause notice and calling upon each of them to establish legality of respective appointment. The writ petitioners failed to establish the legality of their appointment. Once again their service was terminated. The said orders of termination led to a large number of writ petitions (nearly a thousand) before this Court which eventually reached the Division Bench in letters patent appeals. As many as 819 letters patent appeals and the writ petitions were decided by the Bench [Coram: Dr. J. Bhatt, C.J and Justice Shiva Kirtr Singh, as he then was] [2006 (3) PLJR 386]. The Bench noticed that the writ petitioners were appointed in Class-III or IV service and were serving as such for a long time. The writ petitioners had claimed the benefit of regularization in service in view of the judgment of the Hon'ble Supreme Court in the matter of Secretary, State of Karnataka v. Uma Devi (3), [(2006) 4 SCC 1] : [2006 (2) PLJR (SC) 363]. The Bench directed the authorities of the Health Department, Government of Bihar, “to reconsider the cases of all the affected employees with a view to find out oh the basis of relevant facts and law as settled by the Constitution Bench in the case of Secretary, State of Karnataka v. Uma Devi (supra) as to which of, such affected employees are fit for regularization in terms of that judgment, particularly in terms of paragraph 44 of the judgment. Such exercise should be completed within a period of six months from today. If for any good reason, the time period is required to be extended then the respondent State must file an application for that purpose and seek extension from this Court. Till the process is completed, the State of Bihar and its authorities shall maintain status quo in respect of services of the affected employees as existing on date. The status quo shall get revised by the orders that may be passed by the authorities in respect of affected employees as a result of the exercise to be undertaken by them and their final decision in the light of this judgment and order.”
4. Pursuant to the aforesaid direc tion, the Government of Bihar constituted a Committee comprising five officers to examine the facts of individual cases. For the reasons not brought on the record two members of the said Committee did not participate in the proceedings. So, it pre cipitated into a committee of three mem bers (hereinafter referred to as “the State Committee”) which carried but the direction of this Court and submitted its report. The State Committee issued show cause notice to each individual, considered the facts in each individual case and classi fied the said employees in three catego ries, (i) the employment secured on false or forged documents; (ii) illegal appoint ments; and (iii) irregular appointments. Some 91 cases which were classified as irregular appointments were eventually or dered to be regularized in keeping with the direction issued by the Hon'ble Su preme Court in the matter of Uma Devi (3), [(2006) 4 SCC 1]. Rest of the appoint ments being void ab initio were cancelled and the service of the concerned employ ees was terminated.
5. The said action of the State Gov ernment led to a third round of litigation before this Court. Each petition was taken up by the learned Single Judge; some were allowed. Against such orders the State Government approached the Bench in a group of letters patent appeals. This time the Bench [comprising Dipak Misra, C.J as he then was and Justice Mihir Kumar Jha] under a common judgment and order in the matter of The State of Bihar v. Sohan Roy, [2010 (2) PLJR 397], with consensus of the learned advocates, referred the matter to a Committee comprising Justice Uday Sinha (retired) with a detailed directions to the said Committee. These matters have been dealt with by Justice Uday Sinha (retired). He has made report in each case placed before him. Those matters are not the subject matter in this group of Appeals.
6. A group of writ petitions filed against the report of the State Committee have been allowed by the learned Single Judge under the impugned common judg ment dated 6th October, 2009 and the respective orders made by the learned Single Judges which are the subject matter of challenge in this group of Appeals. Some have travelled to the Hon'ble Su preme Court and have been remitted back as recorded hereinabove. Thus, the ap peals before us are the matters in which challenge is against the report of the State Committee and the consequent orders of discharge from service.
7. The learned Single Judge has pro ceeded on the premise that all the writ petitioners had been serving for around 20 years and that their service had been regu larised. That necessarily meant that the authorities were satisfied about the legal ity of the initial appointment of the writ petitioners. Once regularised, they were protected by Article 311 of the Constitu tion. If the authorities wanted to ascertain the genuineness of the appointment, the only procedure was to hold-disciplinary proceeding as envisaged by Article 311 of the Constitution. The learned Single Judge has also relied upon some other writ peti tions which were earlier allowed and the above referred report of the State Committee was set aside. Further, in the opinion of the learned Single Judge the report did not assign any reason why a particular appointment was considered illegal or irregular. The learned Single Judge has recorded a finding that almost all the petitioners were confirmed, absorbed and regularised in their service. The learned Single Judge has set aside the report having been, made in violation of the rule of natural justice since the same was without holding a disciplinary proceeding.
8. Learned Additional Advocate General Mr. D.K Sinha has appeared for the appellant-State of Bihar. He has assailed the judgment of the learned Single Judge. He has submitted that pursuant to the direction issued by this Court in the matter of The State of Bihar v. Purendra Sulan Kit, [2006 (3) PLJR 386], the State Government did constitute a committee of five officers. Eventually three members of the said committee examined all cases on individual basis and recorded its finding of the employment having been secured either on forged or false documents or the employment being illegal or irregular. The said report cannot be vitiated for it was not signed by all five members who initially constituted the committee. At all relevant times it was a committee of three members and the three members have submitted the report under their signature. Moreover the finding recorded in the said report is either not challenged or is not proved to be wrong. There was no earthly reason for the learned Single Judge to set aside the report of the State Committee or to direct reinstatement of the concerned employees in service. Mr. Sinha has relied upon the above referred judgments delivered by this Court from time to time. Mr. Sinha has also relied upon the Government Circulars dated 3rd December, 1980. He has submitted that the said Circulars set put the procedure for appointment in Muffassil offices of the Government. In the cases before us, the appointments are not made in accordance with the said Circulars.
9. In support of his submissions, Mr. D.K Sinha has relied upon the judgment of this Court in the matter of Sunaina Devi v. The State of Bihar, [2011 (3) PLJR 913].
10. The Government of Bihar in its Administrative Reforms Department issued instructions for appointment to Class III service in the Government offices under its Circular No. 16440 dated 3rd December 1980. The said Circular apply to Class-III posts other than which are filled in by appointment of the candidates selected by Bihar Public Service Commission after a competitive examination and to the posts which were governed by the Government. Resolution dated 28th January, 1976. The said Circular sets out a detailed procedure for notifying the vacancies in Secretariat and its attached offices District Magistrates and other Muffassil offices and for calling for applications, preparation of a common merit list and appointment from the said common merit list in order of merit. It also provides for procedure for constitution of selection committee, preparation of merit list and wait list duration of the merit list/wait list.
11. A similar Circular No. 16441 was issued on 3rd December, 1980 for appointment to Class-IV posts in the Muffassil offices of the Government.
12. Without entering into the details of the procedure etc. provided in the said Circulars, we may note that the said Circular had been issued to avoid discrimination in appointment to Class-III and Class-IV posts in the Government offices and provides for generalized procedure in consonance with Articles 14 and 16 of the Constitution.
13. The Appeals are contested by the learned advocates appearing for the writ petitioners. We have heard learned counsels Mr. Basant Kumar Choudhary, Mr. K.N Choubey, Mr. Yugal Kishore and learned advocates Mr. S.B.K Manglam, Mr. Ashok Kumar Singh, Mr. Praful Chandra Jha, Mr. Shambhu Sharan Singh, Mr. Pramod Mishra, Mr. Vivek Prasad, Mr. Ajoy Kumar Chatraborty, Mr. Pramod Kumar Sinha, Mr. Sunil Kumar Verma.
14. The learned advocates have made submission on the facts of individual cases and contentions raised in the respective writ petitions. They have relied upon the judgment of this Court in the matter of The State of Bihar v. Binay Kumar Singh, [2011 (3) PLJR 547] and the above referred order of the Hon'ble Supreme Court in appeals. The learned advocates have also relied upon the judgments of the Hon'ble Supreme. Court in the matters of Ashwani Kumar v. State of Bihar, [1997 (1) PLJR (SC) 59]; of State of Karnataka v. C. Lalitha, [(2006) 2 SCC 747]; of K.T Veerappa v. State of Karnataka, [(2006) 9 SCC 406]; of Government of Andhara Pradesh v. K. Br???manandam, [(2008) 5 SCC 241]; of Prakash Ratan Sinha v. State of Bihar, [2010 (1) PLJR (SG) 77]; of Sant Lal Gupta v. Modern Cooperative Group Housing Society Limited, [(2010) 13 SCC 336]; of Safiya Bee v. Mohd. Vajahath Hussain Alias Fasi, [(2011) 2 SCC 94] of Union of India v. Arulmozhi Iniarasu, [2011 (4) PLJR (SC) 83]; and of State of Rajasthan v. Daya Lal, [2011 (4) PLJR (SC) 90];
15. Learned advocates have submitted that the appointments of the writ petitioners were made under a Scheme introduced by the State Government in 1985. All appointments were made under the said Scheme. Even though the appointments may not have been made strictly in accordance with the rules/instructions or by due process, in absence of any action taken against the officers concerned, the employees could not have been targeted. Most of the writ petitioners have served for more than 10 years; some have completed 20 years of service. The service of the writ petitioners, therefore, ought to have been regularized. The learned advocates have also submitted that various benches have decided the writ petitions separately, not against all of them the State Government has preferred letters patent appeal. Many of the orders for reinstatement in service have been complied with by the State Government whereas in the present set of cases, the Appeals are preferred and thus the writ petitioners have been meted a discriminatory treatment.
16. It would not be out of place to note here that three writ petitions in the same subject matter were referred by the learned Single Judge to the Full Bench. The Full Bench has considered the reference and decided the writ petitions [Ram Sevak Yadav v. The State of Bihar] 2013 (1) PLJR 964. The Full Bench has considered the aforesaid history of the litigations and the judgments of the Hon'ble Supreme Court, more particularly the judgments in the matters of Secretary, State of Karnataka v. Uma Devi (3), [(2006) 4 SCC 1] : [2006 (2) PLJR (SC) 363] of State of Karnataka v. M.L Keshari, [(2010) 9 SCC 247] of A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, [(2012) 6 SCC 430] of Sahara India Real Estate Corp. Ltd. v. Securities and Exchange Board of India, [(2013) 1 SCC 1]. Having considered the plethora of judgments on the issue, the Full Bench has summed up its decision in paragraph 43 of the judgment as under:—
“We therefore sum up our conclusions and answer the reference as follows:—
(A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;
(B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive se lection cannot be regularized under any circumstances.
(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
(D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any Court orders.”
17. The Full Bench has approved the judgment in the matter of Sunaina Devi (supra).
18. The judgments of the Hon'ble Supreme Court and this Court rendered in respect of regularization in service have been considered and dealt with in details by the learned Judges in the Full Bench in the matter of Ram Sevak Yadav (supra). The Full Bench has, having considered the relevant law, summarized the law as above. We, therefore, desist from considering the said judgments once again to make the statement of law in our own words.
19. The writ petitioners have approached this Court with a specific prayer to regularise their service and to set aside the order of termination of their service. Many of the writ petitioners have also challenged the report submitted by the State Committee. It is the allegation that the State Committee has committed large scale irregularities in preparing, its report.
20. At the outset we must note that the very basis of the judgment of the learned Single Judge that service of the writ petitioners was regularised and that they were permanent employees of the State Government is erroneous. None of the writ petitioners has brought on record any order under which the service of such petitioner was consciously regularised by the State Government or the competent authority. On the contrary the specific prayer of all the writ petitioners is to regularize their service. The very relief prayed for belies the claim that the service of the concerned writ petitioners was regularized. The petitioners cannot be said to be the civil servants of the State. Article 311 of the Constitution is not attracted. The question of holding a disciplinary proceeding envisaged by Article 311 of the Constitution or under any disciplinary rules, therefore, shall not arise.
21. The real controversy is whether the writ petitioners were legally and validly appointed. The repeated finding of the State Government is that many of the writ peti tioners had secured employment by pro ducing a fake or forged appointment letter or have been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issu ing a posting order. It is not difficult, to understand a well thought design to induct the individuals in Government service with out recruitment at all. Not only there was no recruitment process or that Civil Surgeon-cum-Chief Medical Officer was not authorized to make appointment, the Civil Surgeon-cum-Chief Medical Officer straight away issued a posting order in favour of the concerned writ petitioner posting him/her in Primary Health Centre in remote areas. Surely, it would be difficult, if not impossible, to detect such illegality. The Court cannot be oblivious of the fact that the writ petitioners are the beneficiaries of the illegal orders made by the Civil Sur geon-cum-Chief Medical Officers. Once it is alleged that the appointment or induction of the writ petitioners was illegal, made on the basis of forged appointment order or on the basis of illegal posting orders made by the Civil Surgeon-cum-Chief Medical Officer, the onus to prove otherwise shifts on the writ petitioners. The writ petitioners, were given notice to establish the genuineness of their appointment and to show cause. None of the writ petitioners could establish the genuineness or legality of their appointment before the State Committee. Once it is found that the appointment of the writ petitioners was ille-gal, void ab initio, the challenge to the order of cancellation of appointment and discharge from service should necessarily fail. Not only the writ petitioners had failed to establish genuineness or legality of their appointment at first before the State Government and then before the State Committee, they have not produced any reliable material even; before this Court on the basis of which this Court can hold otherwise. It is absolutely not the case of any of the petitioners that their appointment was made after due process of selection for public employment. In other words, the writ petitioners had not been sponsored by the Employment Exchange Office; nor had they applied pursuant to a public notice. None of the writ petitioners was subjected to a selection process. Although some of the writ petitioners have asserted that they were qualified for appointment to the post in question, in majority of the cases even such an assertion is absent. Irrefutably none of the appointments has been made after following the procedure set out in the aforesaid circulars dated 3rd December, 1980. The laudable purpose for which the said circulars were issued is; defeated.
22. For example, we may record the facts of, just one case of one Madhu Kumari, the petitioner in CWJC No. 6873 of 2008 (Letters Patent Appeal No. 200 of 2010). She has produced a copy of the purported appointment letter dated 3rd July, 1992 issued by the Civil Surgeon-cum-Chief Medical Officer, Nawada. Ex-facie, the said order dated 3rd July, 1992 is not an appointment letter. The contents of the said letter indicate that pursuant to the requirement by the Incharge Medical Officer, Additional Primary Health Centre, Laundh, the said writ petitioner was posted as Clerk at Laundh after appointment. Thus without the appointment, straightaway the said writ petitioner was posted as a Clerk in Additional Primary Health Centre in a remote area.
23. The next, document is by the Civil Surgeon-cum-Chief Medical Officer, Motihari, East Champaran and then that of the Regional Deputy. Director, Health Services, Magadh, Gaya. The petitioner has not explained what was the necessity of the concerned officers to repeatedly assert that the appointment of the said writ petitioner was legal and valid; though she was Class-III employee she was transferred from one district to the other the documents produced by the said writ petitioner only confirm the illegality of her appointment. These are the facts of one case, but similar are the facts in all cases before us.
24. Since the report of the State Committee is questioned before us, we will examine the legality of the said report. The challenge to the said report is on the ground that although the State Government had constituted a committee of five members, ultimately the enquiry, was conducted by only three of them and the report has been signed by the three members alone. The allegation is that two other officers avoided the enquiry proceeding because of the illegalities committed in the enquiry. The real issue is whether the report made by three members Commit tee would be vitiated, because the Committee initially comprised five members. True, it was the duty of the State Government to explain the reasons for which the two others members of the Committee did not participate in the enquiry proceeding. However, in absence of such explanation also, in our view the report of the State Committee cannot be vitiated for the reason that the enquiry was conducted by three members.
25. At the first we will note that although the report of the State Committee is under challenge; the members of the State Committee are alleged to have committed large scale irregularities, none of the members of the State Committee has Been impleaded as party respondent. In absence of the members of the State Committee, neither the allegations of mala fide or irregularities can be countenanced; nor the report can be vitiated. As recorded hereinabove, for all practical purposes it was a three member Committee and all the three members have signed the report. Merely because earlier the committee comprised of five members and the two members did not participate in the enquiry proceedings (for reasons not known), the report cannot be vitiated. Had the State Committee been a statutory committee, the said Committee could not have been constituted or have functioned except in accordance with the relevant provisions. That is not the case here. Had this Court directed to constitute a five member committee, any other committee having any different constitution may be vitiated. This Court had not issued a direction to constitute a committee comprising five members or any particular number of members. All that this Court directed was “to consider the cases of all the affected employees”. The enquiry in accordance with the direction issued by this Court could have been made by an individual officer of the Government if authorized or by any committee of one or more members that the Government may constitute. The State Government, pursuant to the aforesaid direction, in its wisdom, appears to have constituted a committee of five members. Ultimately, only three members sat in the enquiry; held the enquiry and made its report. We do not see any reason why the said report cannot be believed or should be held to be illegal or invalid. It is not in dispute that the State Committee did offer opportunity of representation and hearing to the affected employees. The principles of natural justice having been complied with, this Court ought not to have any reason to disbelieve or interfere with the finding recorded by the State Committee. It is note worthy that the writ petitioners have not chal-lenged the finding recorded, by the State Committee or at least have not been able to establish that the respective finding is erroneous on the facts of the case; We have recorded the facts of one case just to bring home the nature of illegality committed by the Civil Surgeon-cum-Chief Medical Officer. As recorded hereinabove, in repeated enquiry made by the State Government all such appointment's were found to be illegal, void ab initio. Unless there is a strong evidence of such finding being wrong, this Court in exercise of power of judicial review shall not interfere with such finding.
26. In the present set of writ petitions, none of the writ petitioners has dislodged the finding of illegal appointment or has established that his or her appointment was legal and valid in all respects. In our view, the learned Single Judge has erred in totally discarding the report of the State Committee on the premise that only three members of the committee had conducted the enquiry and had submitted the report.
27. This brings us to the last question whether in view of their long service, the writ petitioners are entitled to regulanzation in service as observed by the Hon'ble Supreme Court in Uma Devi (3) (supra). This was the precise question which was referred to the Full Bench in, the matter of Ram Sevak Yadav (supra). The Full Bench of this Court has categorically held that the judgment in Uma Devi (supra), prohibits regularization of such appointments, the period of service being irrelevant; and that illegal appointment void ab initio cannot be regularised under any circumstances. In view of the aforesaid decision of the Full Bench of this Court, the law laid down by the Division Bench of this Court in the matter of The State of Bihar v. Binay Kumar Singh, [2011 (3) PLJR 547] is no longer a good law.
28. In the present case, the appointments of the writ, petitioners have been repeatedly held to be non est or void ab initio. The question of regularization of their service even by invoking paragraph 44 of the judgment in the matter of Uma Devi (3) (supra) shall not arise. For the aforesaid reasons, these Letters Patent Appeals preferred by the State of Bihar are allowed. The impugned common judgment and order dated 6th October, 2009 passed by the learned Single Judge and the orders made by the learned single Judges' on different dates in so far as the concerned writ petitions are allowed, are set aside. The said writ petitions are dismissed.
29. Interlocutory Applications stand disposed of.
Birendra Prasad Verma, J.:— I agree.
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