LAWS(PAT)-1996-9-29

UMESH SHARMA Vs. STATE OF BIHAR

Decided On September 03, 1996
UMESH SHARMA Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) Altogether 11 writ petitioners have come to this Court by filing the instant writ application seeking a relief for quashing the order of termination of their services by the respondents as contained in letter No. 88 dated 12th September, 1995. The petitioners further prayed for their absorption in the regular establishment of the Department.

(2.) The facts as narrated by the petitioners are as follows:- In the year 1978 few posts of Vaccinator were advertised by respondents. Pursuant thereto, the petitioner No. 1 made an application. By an order of the then respondent No. 5, Civil Suraeon- cum-Chief Medical Officer, petitioner No. 1 was appointed as Vaccinator on temporary basis. He joined on 1st May, 1978. After having worked for about 2 years, a service book of the petitioner was opened and deduction of Provident Fund was started. The petitioner alleged to have got increments and since then the petitioner has been working as Vaccinator. The petitioner No. 1 also claimed to have been given time-bound promotion in the year 1981 under the time-bound promotion scheme circulated by the Government of Bihar, copy of the promotion order was filed and marked Annexure 2 to the writ application. The petitioners' further case was that in the year 1985-86 the District of Gaya witnessed an epidemic. To deal with the situation, the respondents felt emergent need of engaging persons. Accordingly, petitioners Nos. 2 to 11 were appointed on different dates. It was stated that since the need of engaging persons were so urgent that prior formalities of appointment could not be followed. The petitioners further stated that the requirement of hands to control the epidemic was always there in the District of Gaya and the respondent No. 5, Civil Surgeon-cum-Chief Medical Officer made requests to the Department for allotment of additional hands to meet the situation, copy of the letter issued by the respondent No. 5 to respondent No. 3, Director-in-Chief, Health Services was filed and marked Annexure 4 to this writ application. It was further stated that though initially the petitioners were appointed on fixed term basis either for four months or six months but since there were large number of vacant posts available in the District works under the different schemes, such as, Family Planning, Epidemic Control, Immunisation, etc. were being hampered on account of vacancies, the respondent Nos. 5 and 6 continued the services of the petitioners. The petitioners stated to have been working under the Public Health Office, Gaya and respondent No. 6 is the. Controlling Officer of the said office. The petitioners, therefore, made out a case in the writ-petition that their services were extended until further orders and they were deputed at different Primary Health Centres and, accordingly, they continued till date. It was further alleged in the writ petition that at the time of joining of the petitioners, their original appointment letters were taken by the Clerk, deputed in the officer of the respondent No. 6, namely, Sri Bhupendrapati Sharma. On the basis of appointment letters their service books were opened wherein the date of appointment was mentioned. The petitioners' further case was that respon- dent No. 6 by his letter No. 37 dated 5th May, 1992, Issued an order directing some of the petitioners and others to submit 4heir appointment letters and proof in support of their age Pursuant thereto, the petitioners who were directed to submit their appointment letters, made a representation in May, 1992 to respondent No. 6 stating therein their original appointment letters are already lying in the office which were submitted at the time of their joining. It was further stated that in May June, 1991, the aforesaid Sri Bhupendrapatl Sharma was transferred from the office of respondent No. 6 to Lady Irgin Hospital, Gaya, and Sri Krishna Prasad Sharma was posted at his place. Sri Bhupendrapati Sharma, in spite of several directions, did not hand over the complete charge of the office. Because of non-submission of the records the said Bhupendrapati Sharma was suspended and departmental proceeding was initiated against him. The petitioners case was that by an order dated 23.10.1994 the District Magistrate, Gaya, issued a letter to the District Treasury Officer, Gaya, mentioning that the several persons in the different Departments in the district of Gaya were working on the basis of forged appointment letters. Accordingly, the Treasury Officer was directed that before allowing payment of salary to the employees, he should obtain a certificate from the Controlling Officer of the employee concerned regarding the genuineness of their appointments, copy of the letter was filed and marked An- nexure 14 to this writ-application. In that context when the salary bills of the petitioners were placed for clearance before the Treasury Officer, Gaya, he did not clear it and record an objection that unless a certificate from the Drawing and Disbursing Authority with regard to genuineness of appointment of the concerned employee is obtained, no payment would be made. The respondent No. 6 Who Is the Drawing and Disbursing authority of the petitioners said to have given a certificate that the appointments of the petitioners were not forged ones, it Is only, thereafter, that the salary of the petitioners was paid, copy of that letter was filed and marked Annexure 15 to this writ-application. The petitioners' further case was that pursuant to the objection raised by the Treasury Officer, the respondent No. 6 by his letter dated 2nd November, 1994 directed the petitioners to submit their appointment letters by 10th November, 1994 in his office, the petitioners replied to that letter taking plea that the appointment letters were taken by the office at the time of joining and therefore the same could be furnished only on returning of those papers. However, the salary of the petitioners were stopped and respondent No. 5 by letter dated 9th May, 1995 informed the respondent No. 4 that the enquiry with regard to the petitioners and others had already been completed and a report in this regard had been submitted on 6th June, 1994. The respondent No. 5 further mentioned that respondent No. 4 had himself directed not to make payment of salary to the persons the genuineness of those appointment had not been proved, copy of the letter was filed and marked Annexure 16 to this writ application. It was further stated that on 10th July, 1995, a meeting of the Officer of the Health Department and the office-bearers of the Association was held in the chamber of the respondent No. 5 at Gaya and the said meeting It was resolved that so far the payment of the salary to the Cholera employees is concerned, the same would be decided only after receipt of the decision of the State Government, copy of the said decision was Annexure 20 to this writ application. Surprisingly the respondent No. 5 came out with impugned order dated 8.9.1995 terminating the services of the petitioners' and 11 others on the ground that persons were appointed for 4 to 6 months and since that period of appointment came to an end, they were being terminated, copy of the termination order was filed and marked Annexure 22 to this writ application. The petitioners' case was that before the order of termination no departmental proceeding or enquiry was ever held against petitioners not the petitioners were given opportunity of hearing before passing the impugned order.

(3.) A counter-affidavit was filed on behalf of respondent No. 5, Civil-Sur-geon-cum-Chief Medical Officer, Gaya, stating, inter alia, that the petitioners were given notice by the respondents before passing the impugned order of termination and therefore they were not entitled to continue in the service. It was stated that an enquiry conducted by the Department it was found that these petitioners were initially appointed and/or retained as cholera workers for a fixed period of time and they continued in the service. It was further stated that from Annexure 5 series it would appear that the petitioners were retained for 4 to 6 months under the order of Addi- tional Chief Medical Officer, Gaya and their retention in service were extended from time to time. It was further stated that power of appointment on the post of cholera workers squarely vest with the Director-in-Chief which will appear from letter No. 11 and dated 20.1.1992 issued under the signature of the Commissioner of the Department, copy whereof is Annexure A* to the counter- affidavit. According to respondents there was no such order on record appointing the petitioner on the post in question but the petitioners managed to continue in the service. The respondents further stated that the petitioners were also put on notice through different letters issued under the signature of respondent, Additional Chief Medical Officer, Gaya and the same were duly served upon and received by the petitioners. A zerox copy of the notices were filed and marked Annexure B series to the counter-affidavit. It is stated that in response to the said notice all the petitioners filed a joint application before the respondent Additional Chief Medical Officer, Gaya, stating therein that they undertake to furnish their appointment letter by 10.11.1994 failing which they shall not be entitled to salary. The petitioners, however, failed to submit their appointment letter. The whole matter was considered by the respondents and through a letter bearing memo No. 296 dated 12.5.1995, the respondent No. 5 informed about the manner in which these persons were allowed to continue in the Government Seivice. The said letter was elaborative on the point. It was further disclosed that the matter of illegal retention of service was brought to the notice of respondent District Magistrate when he issued Annexure 3 to the Treasury Officer not to encash bill or pay the bill of such persons unless they produce their appointment letters. The said letter further indicated that pursuant to notice to the petitioners they undertook to produce the appointment letter but the same was not produced, copy of the letter dated 12.5.1995 is Annexure D to the counter-affidavit. The respondent No. 5 further stated in the counter-affidavit that the petitioners involved themselves in Criminal Acts which will appear from the fact that they produced Annexure 8 series which are the service book of the petitioners. A perusal of the said Annexure would indicate that all these service books were opened under the hand and seal of Dr. Girija Shankar Prasad who was shown to have signed on 21.5.1988, when Girja Shankar Prasad was holding the post of Additional Chief Medical Officer, Gaya between 1.4.1984 to 26.12.1986 and during the relevant period that is 1988, the said post was held by Dr. Mukteshwar Prasad. The respondents also claimed that initial appointment of the petitioners was itself illegal and violative of Article 16 of the Constitution of India.