SUMITRA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ application, the petitioners have impugned the order dated 27-10-87 (Annexure-3) whereby they have been reverted to the post of Volunteer Dai, a post which they were holding prior to their promotion as trained attendant by orders dated 28-5-1985 and 26-8-1985 (Annexures 1 and 1/1 respectively). The case of the petitioners is that they were working as volunteer attendants (Volunteer Dai) and their names were placed on the master roll on 30th October 1980 and 1st July, 1981 respectively. Thereafter by orders dated 28-5-1985 and 26-8-1985 (Annexure-1 and 1/1 respectively) they were promoted as trained attendants (Trained Dai), but they were allowed the pay scale of volunteer ward attendant. After they had been promoted and worked for over two years, respondent No. 2, the Civil Surgeon-cum-Chief Medical Officer, Darbhanga, issued the impugned order (Annexure-3) dated 27-10-1987 reverting them to the category of volunteer attendant (Volunteer Dai). It is, therefore, submitted that the impugned order (Annexure-3) is arbitrary and unreasonable and has been passed in violation of principles of natural justice inasmuch as the petitioners have not been given opportunity to represent their case before respondent No. 2 before the impugned order was passed.

(2.) A counter affidavit has been filed on behalf of respondent No. 2 in which it is stated that the promotions granted to there petitioners had been wrongly granted by the then Civil Surgeon-cum-Chief Medical Officer, who was due to retire in the year 1985. It is stated that the post to which they were promoted required trained attendants. Moreover, there were no vacant posts against which the petitioners could be promoted. These facts were brought to the notice of the Regional Deputy Director and thereafter the impugned action was taken. The petitioners were promoted/and appointed without the requisite qualification and without there being any vacancy, and their appointment was not made legally and on regular basis.

(3.) LEARNED Counsel for the petitioners first contended that in view of the decision of the Supreme Court , the petitioners should have been afforded an opportunity to represent their cases before respondent No. 2 and only thereafter any order could be passed by respondent No. 2. It is true that in appropriate cases an opportunity must be given to the concerned person to represent his case before the concerned authorities. In the case with which the Supreme Court was concerned, there was a dispute as to whether the Dy. Superintendent of Education was or was not authorised to make the appointments. While the petitioners submitted that he was authorised to make such appointments and the appointments were made in the appropriate manner, it was contended on behalf of the State that the Dy. Superintendent of Education had no authority to make the appointments. Obviously, therefore, before reaching any conclusion on the question whether the Deputy Superintendent of Education had authority to make the appointments, the petitioners of that case ought to have been heard. In the instant case so far as the case of petitioner No. 1 is concerned the letter of appointment itself (Annexure-1) states that the order was being passed in the light of the letter of the Minister for Health and Family Planning. Furthermore, learned Counsel for the petitioners fairly conceded that the petitioners are not trained and therefore not qualified for appointment as trained nurses. If such be the admitted factual position, the promotions are ex facie bad, and in such a case hardly any useful purpose will be served by holding an enquiry when the illegality of the promotions made is not only apparent, but admitted. By the impugned order, that illegality has been corrected. It is well settled that this Court in exercise of its writ jurisdiction will not grant any relief which has the effect of perpetuating an illegality.