BIMAL KISHORE RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is yet another case of an appointment made in Matter disregard of law and on extraneous consideration. The appointing authorities of the State of Bihar, particularly when they are about to superannuate, make large scale appointments, not only in utter disregard of the constitutional mandate and the rules and the laws framed, but also against express prohibition by the State Government. The misuse of the power has attained dangerous proportions and, therefore, instead of disposing of this writ petition, as we have disposed of so many others, by a short order, we decided to analyse the problem in the proper perspective, and to lay down the guidelines consistent with law, which to us appears imperative if a semblance of discipline has to be restored in the matter of appointments in this State. The impunity with which the law is disregarded is only matched by the ingenuity of the appointing authorities. The modus operandi adopted by them renders the constitutional mandate under Article 16 of the Constitution otiose, and all the rules, regulations, instructions and directions issued by the State Government are made to appear as trivial things of no consequence. It cannot be said in this design the beneficiaries are not at fault, because the appointing authorities and the appointees are always in part delicto. The normal device followed in such cares is to take an appointment on daily wage basis, continue the appointment for some more time, and then to regularise the services of the appointee on the ground that he has worked for a few monts or years Obviously, in making such appointments no need is left for complying with the requirement of advertisement/selection process, selection committees etc., and in all such cases appointments are made on personal approaches made by the candidates. By regularisation is meant confiramation in service, and it is seriously urged before us that since the service have beep regularised, the appointees becpms permanent Government servants. Such appointments are granted and accepted in the hope that before the illegality is detected, several months or years may have passed, and on the basis of such service rendered an argument based on equity and interest of justice can always be advanced before a Court, if challenged, in the hope that the Court will be kind and generous enough to condone the illegality, if any, and to protect the interest of the persons so appointed by directing the authorities to continue them in regular service. The result is that despite numerous judgments and others of the Supreme Court and this Court, this illegal "business" of granting illegal appointments has prospered, and so have appointing authorities. The major sufferers of this treagedy are those citizens who are innocent and resourceless even if more capable, competent and honest and who have nothing to offer in exchange for the appointment. The Constitution does not guarantee employment to every citizen, but even the limited right of being considered for appointment is denied to the law abiding citizens, who wait for an advertisement to be issued, so that in response thereto they may have a chance of proving their merit and competence. The other unfortunate aspect of the matter is that while in many cases illegal appointments, when detected, are cancelled, the main culprit, namely, the appointing authority goes scot free.

(2.) The facts of the case in hand amply demonstrate the state of affairs as they exist. The petitioner has impugned the order terminating bis appointment on the ground that it was illegally made. In fact, the letter of appointment and the subsequent letter regularising his services, appear to be fabricated documents, because it appears that the memo numbers and dates mentioned therein are fictitious when compared with the records maintained in the office. We may ignore this aspect of the matter, but the facts which are undisputed speak for themselves. The patitioner claims that he was appointed as a Non-Medical Assistant on daily wages by letter bearing No. 1233 dated 20th September, 1989, issued under the signature of the Civil Surgeon-cum-Chief Medical Officer, Deoghar, respondent No. 4 herein. He was posted to work at Mohanpur Health Centre where he joined on 22th September, 1989. Only six months later the petitioner filed a representation on 27th March, 1990, stating that he had been working as a daily wage employee on the post of Non-Medicial Assistant since 22-9-89, therefore, bis services may be regularised against the vacant post of Non-Medicial Assistant. A few days later respondent No. 4, Civil Surgeon, by letter No. 432 dated 2-4-1990 regularised the petitioner against the post of Non-Medical Assistant and directed him to submit his joining report along with the health certificate. Pursuant to the said order the petitioner gave his joining report and continued to work as regular employee. He worked at different stations as and when required. He was, however, aggrieved by the fact that since the date of his regularisation i e., 2-4-1990 he was not being paid his salary. The Civil Surgeon (respondent No. 4) no doubt directed the Incharge Medical Officer, Primary Health Centre, Mohanpur to pay to the petitioner his salary, but despite that, the petitioner was not paid his salary though he had been confirmed against the post by the competent authority. This compelled the petitioner to move the High Court by filing a writ petition being C.W.J.C. No. 974 of 1991. The order passed in the said writ petition has been annexed as Annexure-8. This Court noticed that a similar grivance had been raised by the petitioners in C.W.J.C. No. 3025 of 1991, disposed of on 17-9-1991, and this Court had directed the Commissioner-cum-Principal Secretary, Department of Health (Family Welfare), Government of Bihar to examine the validity Si appointments made by Dr. M. P. Lal, the then Civil Surgeon cum-Chief Medicial Officer, Deoghar, who bad recently retired, and in espect of whom. there were serious allegations of making illegal and irregular appointments on mass scale during the last phase of his tenure of service The Court had also directed that in such cases, the person who makes the appointment is the real wrong doer, and that the authority should first consider the question of taking appropriate action against the appointing authority. The writ oetitioner was also disposed of in the same terms, but with the observation and direction that the petitioner will continue to be paid salary in respect of the post against which he was appointed till such time a final decision was taken in regard to cancellation of his appointment in accordance with law.

(3.) It is the case of the petitioner that during the pendency of the aforesaid writ petition, which was disposed of on 30th September. 1991, the oetitioner was served with a show cause notice dated 20th September, 1991. to which the petitioner replied by stating that he had initially been appointed daily waees and subsequently his services have been confirmed. Since his writ petition was pending before this Court he did not submit a detailed repaly Again a show cause notice was served on the petitioner on 33th March 1992 asking him to submit a detailed show cause along with a ohotostat copy of the document regarding his educational qualification. The petitioner filed his show cause on 1-4-1992 along with the relevant documents including the order where by he was appointed on daily wages, and the order dated 2-4-1990, whereby his services were regularised. He also submitted documents relating to his educational qualification.