KUM KUM SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner completed her training of A.N.M. course in the year 1991. She was appointed by letter vide Memo No. 568 dated 20.7.1994 issued by the Civil Surgeon -cum -Chief Medical Officer, Madhepura, on the vacant post of Lady Health Worker, as she fulfilled requisite qualification, for appointment to the post. She gave her joining on 21.7.1994 at Additional Primary Health Centre, Gwalpara. Just four months after her appointment, the Civil Surgeon -cum -Chief Medical Officer, Madhepura, issued a letter vide memo No. 1423 dated 7.11.1994, whereby petitioner along with 12 other persons were terminated from service, on the ground, that appointments were illegal and made contrary to the Government Circular and reservation policy. In compliance of the Civil Surgeon's order, the Incharge Medical Officer, Primary Health Centre, Gwalpara issued termination order dated 9.11.1994 contained in Memo No. 319 terminating services of petitioner and 11 other persons. The termination order was challenged by 11 persons, except the petitioner. Two writ applications were filed challenging the order of termination. One Samouli Devi filed CWJC No. 450 of 1995 and 10 others filed CWJC No. 734 of 1995. Case of Samouli Devi was disposed of with a direction to take final decision relating to the validity of appointment within eight weeks, with a clear stipulation that if no decision is taken within eight weeks, then her appointment shall stand affirmed. CWJC No. 734 of 1995 was disposed of with a direction to Civil Surgeon and Establishment Committee to consider petitioners' cases, in accordance with law. No decision was taken in case of Samouli Devi as well as others, as such contempt application was filed. During the pendency of contempt case, by order dated 26th December, 1999, Selection Committee rejected petitioners' case on the ground that appointing authority was not competent to appoint the petitioners. Termination order dated 26th December, 1999 was challenged by filing CWJC No. 1426 of 1999, CWJC No. 2829 of 1999 and CWJC No. 2727 of 1999, which were heard analogous and decided by a common order dated 26th June, 2000. Case of Samouli Devi CWJC No. 2829 of 1999 was allowed as Selection Committee had failed to take any decision within the stipulated period of eight weeks. She was held to be affirmed on the post in terms of earlier decision. The other two writ applications (CWJC No. 1426 of 1999 and CWJC No. 2727 of 1999) were also allowed with a finding that Selection Committee has passed order without any application of mind. The posts of A.N.M. and Staff Nurse Grade -A, prior to 10th June, 1996, used to be filled up in the manner laid down under Bihar Health Manual. Subsequently vide resolution dated 10th June, 1996, the State of Bihar made certain changes in the procedure of appointment. In terms of old guideline (Bihar Health Manual) on successful completion of Grade -A Nurses training, they used to be absorbed in the services of the State. After 10th June, 1996, appointments were required to be made after due selection and test through Bihar Public Service Commission. Petitioners since appointed in 1994, much earlier to 10th June, 1996, there was no need to observe the 1996 appointment process in their cases, as rules are always prospective, unless made retrospective. In case of petitioners' appointment old rule was to be followed, which was in vogue at the time of their appointment. They were to be appointed by such appointing authority, who was competent to make appointment at the relevant time. Civil Surgeon being the appointing authority under the Bihar Health Manual petitioners were appointed by the competent authority.

(2.) SUBSEQUENTLY petitioner also approached the authorities to allow her similar relief as has been allowed to others, as she had also been terminated from her service by same order, which was ultimately quashed by the High Court. Petitioner also prayed for her reinstatement. Petitioner was directed to submit all documents relating to her appointment. The Civil Surgeon -cum -Chief Medical Officer, Madhepura also sought for a direction from the Higher authorities in this regard and finally the petitioner was taken back in service vide order dated 16.11.2000 issued by the Civil Surgeon -cum -Chief Medical Officer, Madhepura in the light of the orders passed in CWJC No. 2829 of 1999 and analogous cases. On the next date, i.e. 17.11.2009 petitioner gave her joining at the same place, where she was working prior to her termination. Subsequently, the Director, Health Services vide memo No. 26(6) dated 13.1.2001 directed the Civil Surgeon -cum -Chief Medical Officer, Madhepura to report regarding the compliance of the order passed in CWJC No. 2829 of 1999 and analogous cases. The petitioner, reinstated by the Civil Surgeon -cum -Chief Medical Officer, Madhepura in the light of the order passed in CWJC No. 2829 of 1999 was again asked to submit her show cause by the Civil Surgeon Cum Chief Medical Officer, Madhepura vide memo No. 798 dated 20.8.2001 as to why she should not be removed from her service as the benefit of reinstatement in the light of the direction of the High Court is available only to the writ petitioners. Since she was not a writ petitioner she is not entitled for similar relief and her reinstatement is irregular. Petitioner submitted her show cause stating that due to poverty she could not join the writ petitioners of CWJC No. 2928 of 1999 and analogous cases but she is also entitled for similar relief as by the same termination order dated 7.11.1994, all 12 persons were removed from their service and that has been held illegal. Since, the termination order has been quashed on the ground of illegality, it will have application in case of all such persons who were terminated by the same impugned order.

(3.) PETITIONER 's case is that under this threat the Civil Surgeon cum -Chief Medical Officer terminated the petitioner from her service by issuing letter No. 1456 dated 31.12.1002 on the ground, that not being a writ petitioners, benefit of re -instatement available to the writ petitioners was not available to her. The termination order was challenged by petitioner by filing CWJC No. 1321 of 2003 which was heard analogous with other writ petitions and allowed. The termination order was quashed. The State preferred LPA No. 477 of 2005 which was heard along with LPA No. 946 of 2003 and all analogous cases were disposed of with a direction to constitute a five men committee to examine the legality of the appointment of all such persons whose cases were under consideration. Petitioner's case is that during the pendency of the L.P.A. a High Level Committee had been constituted by the State and in the report submitted by the High Level Committee petitioner's appointment was placed in the category of irregular appointee, but the Five Men Committee constituted after the disposal of the LPA No. 946 of 2003 and analogous cases did not enquire into the validity of appointment of 245 appointees, which also included the petitioner. MJC No. 671 of 2007 was filed by the State for extension of time as approximately 245 matters were kept pending by the State and no final decision had been taken in those matters, for the reason that records were not available. Those 245 matters were subsequently decided by a Committee under the Chairmanship of Dr. Gita Prasad and the prayer for the extension of the time made by the State was not pursued, as such MJC was dismissed as infuctuous. Petitioner's case is that without looking into the connected records, an inquiry report was submitted by the Committee. In the case of the petitioner, it is more relevant for the reason that the Civil Surgeon -cum -Chief Medical Officer, Madhepura did send his report to the Committee, but by that time Committee had already submitted its report. The Civil Surgeon in his report had categorized the case of the petitioners as an irregular appointee but the committee without considering any relevant records put the case of the petitioner in illegal appointees' category.