Patna High Court
Binay Kumar Singh And Ors vs The State Of Bihar And Ors on 8 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.568 of 2018
======================================================
1. Syed Mohammad Shafique Ahmed, Son of Sri Syed Mozahir Hassan,
resident of Mohalla- Nawadih, P.S.- Aurangabad, District- Auragabad.
2. Ramesh Choudhary, Son of Sri Manikchand Choudhary, resident of Village
and P.O.- Babu Amauna, P.S.- Daudnagar, District- Aurangabad.
3. Alok Ranjan, Son of Sri Tribhuwan Nath Sinha, resident of Mohalla-
Laxman Bigha, P.O. and P.S.- Aurangabad, District- Aurangabad.
4. Santosh Kumar Pandey, Son of Sri Rajendra Pandey, resident of Village-
Gordiha, P.O.- Sansa, P.S.- Daudnagar, District- Aurangabad.
5. Smt. Sushma Sinha, daughter of Sri T.N. Sinha, resident of GT Road,
Aurangabad, District- Aurangabad.
6. Arvind Kumar Singh, son of Sri Gati Narayan Singh, resident of Village-
Dehuli, P.O.- War, P.S.- Madanpur, District- Aurangabad.
7. Manoj Kumar, Son of Sri Gopal Sharan Gupta, Resident of Mohalla-
Sahpur, P.O. and P.S.- Aurangabad, District- Aurangabad.
8. Sunil Kumar Gupta, Son of Sri Kewal Prasad Gupta, resident of Village-
Jamhore, P.O. and P.S.- Jamhore, District- Aurangabad.
9. Arvind Kumar Singh, Son of Sri Upendra Narayan Singh, resident of Village
and P.O.- Sakardas Nawada, P.S.- Wazirganj, District- Aurangabad.
10. Smt. Jayanti Kumari Sharma, Sir Gopal Sharan Sharma, resident of Jagjivan
Road, Gaya, P.S.- Gaya, District- Gaya.
11. Suresh Prasad Singh, Son of Sri Mahavir Singh, resident of Village-
Karmaha, P.O. and P.S.- Aurangabad, District- Aurangabad.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Department of Health, Government of Bihar, Patna.
3. The Director-in-chief Administration, Directorate of Health Service,
Department of Health, Government of Bihar, Patna
4. The Civil Surgeon-cum-Chief Medical Officer, Aurangabad.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 5685 of 2018
======================================================
1. Binay Kumar Singh, Son of Ramdeni Singh, Resident of Mohalla-Bal BIhar
Road, Right Side Road No.5, Ward No. 12, New Area, Chittor Nagar, Police
Station-Aurangabad Town, District-Aurangabad.
2. Dilip Kumar, Son of Late Santan Prasad Singh, Resident of Mohalla-
Shahpur, Thakurbari Road, Near Suraj Mandir, Police Station-Town Thana,
District-Aurangabad.
3. Md. Islam Uddin, Son of Late Md. Hanif Resident of Mohalla-Dunka
Kucha, Behind Khajekalan, District-Patna, 800008.
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
2/11
4. Sudama Prasad Singh, Son of Late Jagdishwar Singh Resident of Mohalla-
Dev Road, Bank Colony Amba, Aurangabad.
5. Dilip Kumar Singh, Son of Sri Ram Pravesh Singh, Resident of Mohalla-
Ramdiha, Ward No. 32, Anugrah Nagar,near S. Sinha College, Police
Station-Town Thana District-Aurangabad.
6. Suresh Ram, Son of Late Bigan Mochi, Resident of Village-Kusapi Tola,
Usari, Police Station-Tekari, District-gaya.
7. Baijnath Singh, Son of Late Ram Chandra Singh, Resident of Village-Bhaw
Bigha, Police Station-Daudnagar, District-Aurangabad.
8. Kamakhya Narayan Singh, Son of Late Batuk Narayan Singh, Resident of
Village-Sarsa, Police Station-Risiup, District-Aurangabad.
9. Kamal Deo Paswan, Son of Late Jai Ram Paswan, Resident of Mohalla-
Shahpur, Near R.L.S. College, Ward No. 26, Police Station-Town Thana,
District-Aurangabad.
10. Shiv Kumar Ram, Son of Shripati Ram, Resident of Village-Bela, Police
Station-Aurangabad Mufassil, District-Aurangabad.
11. Gopal Singh, Son of Late Badri Narayan Singh, Resident of behind Anugrah
Middle School, Lakshman Mohalla, Post and PS-Aurangabad, District-
Aurangabad.
12. Anil Kumar Verma Son of Late Badri Nath Verma, Resident of Behind
Primary School, South of Block Colony, Post and District-Aurangabad.
13. Gopal Saran Singh, Son of Late Gupteshwar Singh, Resident of Village and
Post-Ketaki, Police Station-Dev, District-Aurangabad.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Director-in Chief, Health Services, Directorate of Health Service,
Government of Bihar, Patna.
3. The Civil Surgeon-cum-Chief Medical officer, Aurangabad.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 568 of 2018)
For the Petitioner/s : Mr.Akashdeep, Advocate
Mr. Shyameshwar Kr. Singh, Advocate
For the Respondent/s : Mr.S.D.Yadav -AAG9
Mr. Anil Kumar Verma, AC to AAG-9
(In Civil Writ Jurisdiction Case No. 5685 of 2018)
For the Petitioner/s : Mr.Akashdeep, Advocate
Mr. Shyameshwar Kr. Singh, Advocate
For the Respondent/s : Mr.Ramadhar Singh- GP25
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 08-01-2024
Heard learned counsel for the petitioners, learned
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
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counsel for the State.
2. Learned counsel for the petitioners submits that he
has filed CWJC No. 568/2018 with a prayer to consider and
grant the seniority of petitioners, as has been granted to all other
Health Educators appointed from 1992 onwards, from the date
of their initial appointment against sanctioned vacant posts of
Health Educator and consequentially to place them at the
appropriate place in the final seniority list published vide Memo
No.462 dated 09.05.2016 strictly in accordance with law.
3. Learned counsel for the petitioners submits that
during the pendency of this writ petition, the department has
issued an order vide Memo No. 288 dated 06.03.2018
(Annexure 7/1 to CWJC No.5685 of 2018) as well as an order
issued vide Memo No. 293 dated 07.03.2018 (Annexure 7/1 to
CWJC No. 5685 of 2018) by which a common departmental
proceeding has been initiated against the petitioners and others
and they have been placed under suspension and, therefore, the
petitioners have no option but to file another writ petition
bearing CWJC No. 5685 of 2018.
4. For the purpose of complete adjudication, this
Court has decided to hear both cases together. In the opinion of
this Court, the preliminary question that whether the initiation of
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
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departmental proceedings has been correctly made, has to be
decided first. Therefore, this Court directs the parties to argue on
the second case first.
5. Learned counsel for the petitioners submits that
the question of appointment of petitioners by the Civil Surgeon-
cum- the Chief Medical Officer has been raised by the State
consistently. According to the circulars, the Director-in-Chief,
Health Services, Department of Health, Government of Bihar, is
the competent authority to appoint the petitioners and other
persons, but the petitioners were admittedly appointed by the
Civil Surgeon-cum- the Chief Medical Officer, therefore their
appointment is bad in law since very the day of its inception.
6. Learned counsel for the petitioners has put his
reliance on Annexure-1, i.e. the order dated 15.04.1991, passed
in CWJC No. 3986 of 1990. For the purpose of adjudication, it
is necessary to quote the finding of the learned single Judge in
CWJC No. 3986 of 1990 as under:-
"Accordingly, this writ
application is allowed and the respondent,
Civil-Surgeon is directed to take steps for
appointment of the petitioners in accordance
with law on the basis of the selection already
made.
With the aforesaid direction, this
application is thus disposed of. "
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
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6.1 Learned counsel for the petitioners submits that
the writ petitioners of second case have moved before this
Hon'ble Court in CWJC No. 8240 of 1991 which was disposed
of vide order dated 09.09.1992 as under :-
"When this matter was heard on the
last date, i.e. 27.08.1992, we had directed the
Civil Surgeon Cum Chief Medical Officer,
Aurangabad to appear before this Court to
clarify certain points. The Civil Surgeon is
present in Court. He has stated before this Court
that there are still 20 vacancies in the cadre of
Health Educator which will be filled up from the
panel (Annexure 3 and 4). These petitioners are
at serials 8, 12 and 13, respectively.
2. We have earlier disposed of
another writ application directing the Civil
Surgeon to appoint the petitioners of that
application from the panel. Accordingly, we
direct the Civil Surgeon cum Chief Medical
Officer, Aurangabad (respondent No.2) to
appoint the petitioners on the post of Health
Educator from the panel on the basis of their
position to the present seniority. Learned
Standing Counsel No.1informs us that the order
will be given effect to within two weeks from
today. With the above observations and
directions, the writ application is disposed of.
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
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Let a copy of this order be handed over to
learned Standing Counsel No.1 for
communication."
6.2 Similarly, the petitioners of the aforesaid case
have preferred CWJC No. 466 of 1992, which was decided on
19.08.1992
, as under :-
"Heard learned counsel for the
petitioners and the State.
2. It appears that a panel was
prepared in 1980 for filling the posts of Health
Educator in which petitioners were included
with others. Initially, there were 48 vacancies,
but now 21 posts remain to be filled up. It is
stated in paragraph 9 of the counter affidavit
that the remaining variances were to be filled
up from the panel (Annexure-4) according to
the position of the candidates, included
therein.
Accordingly, we direct the
respondents to consider the case of the
appointment of the petitioners in accordance
with law.
With this direction, the application
is disposed of."
7. Learned counsel for the petitioners submits that
the validity of the appointment of the petitioners by the Civil
Surgeon-cum-the Chief Medical Officer has already been
decided in CWJC No. 3986 of 1990 in which there is categorical
finding of this Hon'ble Court with reasons. This writ petition
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
was allowed in favour of the petitioners and respondent Civil
Surgeon-cum-the Chief Medical Officer was directed to take
steps for appointment of the petitioners in accordance with the
law on the basis of the selection already made. Therefore, the
counsel for the petitioner submits the said decision which was
passed on 15.04.1991 in CWJC No. 3986 of 1990 was not only
final for the petitioners rather it acquires finality because the
respondent authorities have neither opted to prefer an appeal
against the said order nor this order was challenged in any
manner and the said order has been implemented in its true
spirit.
8. Learned counsel for the petitioners further
submits that not only in the case of the petitioners of CWJC No.
568/2018 but also in the case of the petitioners of CWJC No.
5685 of 2018 the same treatment has been made. Therefore the
State has no locus standi to raise the question of the initial
appointment of the petitioners treating to be illegal. As such,
issuance of any action by the State treating the initial
appointment to be illegal (which was made by virtue of the
order passed by this Hon'ble Court is illegal) and, therefore,
Memo No. 288 dated 06.03.2018 (Annexure-7 to CWJC No.
5685/2018) and Memo No. 293 dated 07.03.2018 (Annexure-
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
7/1 to CWJC No. 5685/2018) requires to be quashed.
9. Learned counsel for the petitioners further
submits that during the pendency of these two writ petitions, the
other persons who were appointed to the post of Health
Educator were moved before this Hon'ble Court in CWJC No.
4036 of 2017 which was allowed vide order dated 19.07.2018
and, therefore, the petitioners contend that the case of the
petitioners should also be considered for the promotion/grant of
seniority in accordance with law.
10. Learned counsel for the State on the other hand
vehemently opposes the prayer of the petitioners and summits
that it is true that neither the order dated 15.04.1991 passed in
CWJC No.3986 of 1990 nor order dated 09.09.1992 passed in
CWJC No. 8240 of 1991 and order dated 19.08.1992 passed in
CWJC No. 466 of 1992 were challenged before the higher Court
and as such, the said orders may acquire finality but truth is that
the State of Bihar has issued circular in which appointment on
the post of health educators has to be made by the Director-in-
Chief, Health Services, Department of Health, Government of
Bihar only. Counsel for the State also submits that so far as
CWJC No. 4036/2017, as mentioned by counsel for the
petitioners is concerned, all those petitioners of the said writ
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
petition were selected by virtue of circulars whereas the present
petitioners have not been appointed by virtue of circulars and as
such the promotion /gradation has rightly been granted to the
petitioners who were appointed in the light of the circulars
whereas the petitioners were not appointed in the light of the
circulars, therefore, these two sets of petitioners cannot be
equated and parity cannot be granted to the present petitioners.
11. Upon hearing learned counsel for the parties and
going through the documents available on record, particularly,
the order passed by this Hon'ble Court in CWJC No. 3986 of
1990 dated 15.04.1991, it transpires to this Court that the State
officials are still raising the same question which they have
raised in CWJC No. 3986/1990 and it was well answered by this
Hon'ble Court and in the opinion of this Court, after the said
decision dated 15.04.1991, there is absolutely no illegality in the
appointment of the petitioners, particularly when the said
appointment has been made after direction of this Hon'ble
Court.
12. The State respondents have never challenged
those points further before any Court, as such, the order passed
by this Hon'ble Court in CWJC No. 3986/1991 acquired finality
and in this background, the said decision is binding upon the
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
State and the State has no right to raise the question of legality
or illegality so far as the appointment of the petitioners is
concerned, particularly when the petitioners had specifically
granted protection by the order passed by this Hon'ble Court.
13. This Court is of the clear view that when
petitioners were granted protection by the Hon'ble Court's order
then again raising the question at the time of granting
promotion/preparing gradation about their initial appointment is
not correct. As it creates estoppel on the State officials as the
said order passed by this Hon'ble Court is binding on the State.
Hence, any such action taken by the State against the petitioners
relating to their initial appointments is absolutely illegal, and,
therefore, the orders contained in Memo No. 288 dated
06.03.2018 (Annexure-7 to CWJC No. 5685/2018 and
Annexure-12 of the CWJC No. 568/2018) and Memo No. 293
dated 07.03.2018(Annexure-7/1 to CWJC No. 5685/2018 and
Annexure-12 /1 of the CWJC No. 568/2018) are hereby
quashed.
14. So far as the question of promotion and grant of
preparation of gradation of the petitioners are concerned, the
State is directed to take a fresh decision as directed by this Court
in CWJC No. 4036 of 2017 decided on 19.07.2018. It is made
Patna High Court CWJC No.568 of 2018 dt.08-01-2024
clear that the case of the petitioners who were appointed by the
Civil Surgeon-cum-the Chief Medical Officer duly approved by
this Hon'ble Court and the case of the petitioners of CWJC No.
4036/2017 who were appointed on the basis of the circulars by
the Director-in-Chief, Health Services, Department of Health,
Government of Bihar shall be treated equally and gradation
list/promotion shall be prepared accordingly within 90 days
from the date of production of a copy of this order.
15. At the time of passing the order, learned counsel
for the petitioners has drawn the attention of this Court towards
Annexure-5, page 33 of the CWJC No.568/2018 i.e. Memo No.
962(22) dated 28.10.1992 which is still in existence has been
directed to be taken into consideration.
16. With the aforesaid observation and direction, the
present writ petition stands disposed of.
(Dr. Anshuman, J)
Ashwini/-
AFR/NAFR
CAV DATE NA
Uploading Date 12/01/2024
Transmission Date NA
