Patna High Court
Kapildeo Ram vs The State Of Bihar on 9 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10029 of 2023
======================================================
Kapildeo Ram S/o Late Daroga Ram, Resident of Kahar Toli, Road No. 1.
Yarpur, P.S.- Gardanibagh, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health,
Govt. of Bihar, Patna.
2. The Director in Chief (Administration) Health Services, Bihar, Patna.
3. The Director in Chief , (Disease Control Public Health and Para Medical)
Health Services, Bihar, Patna.
4. The Civil Surgeon cum Chief Medical Officer, Patna.
5. The Incharge Medical Officer, Primary Health Centre, Naubatpur Patna.
6. The District Provident fund Officer, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shiv Kumar, Adv.
For the State : Mr. Aditya Nath Jah, AC to SC 18
=======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 09-01-2024
Heard Mr. Shiv Kumar, learned counsel appearing on
behalf of the petitioner and Mr. Aditya Nath Jha, learned
counsel representing the State.
2. The short facts which led to the filing of the present
writ petition are that while the matter of illegal/forged
appointment came to light, many persons were terminated from
service wherein petitioner's service being basic health worker
was terminated by the Civil Surgeon-cum-Chief Medical
Officer, Patna vide order contained in Memo No. 1479 dated
04.03.2003
on account of appointment being forged.
Subsequently, in the light of the order passed in LPA No. 946 of
Patna High Court CWJC No.10029 of 2023 dt.09-01-2024
2003, a Five Men Committee was constituted by the State
Government to examine each and every matter of forged/illegal
appointment and accordingly the Committee examined the
matter of appointment of all the employees and submitted a
report in the year 2007, wherein the petitioner's appointment
has also been examined and found to be forged. The Committee
recommended the service of the illegal/forged appointees be
terminated from the date of issuance of initial appointment and
no claim can be considered in future since the same is void ab
initio. Ultimately, the matter travelled upto the Hon'ble
Supreme Court and so many SLPs. have been preferred by the
aggrieved parties.
3. The petitioner also preferred Civil Appeal No. 8693
of 2018, arising out of SLP (Civil) No. 34280 of 2014 before
the Hon'ble Supreme Court against the order dated 24.09.2014
passed by the Hon'ble Court in LPA No. 1718 of 2010. Finally,
the aforenoted Civil Appeal No. 8693 of 2018 was heard by the
Hon'ble Supreme Court along with other analogous appeals
bearing Civil Appeal No. 8649 of 2018 (The State of Bihar vs.
Kirti Narayan Prasad) and it came to be dismissed vide
judgment dated 30.11.2018. It is further submitted that in
another batch of SLPs. bearing No. SLP (c) No. 11885 of 2012
Patna High Court CWJC No.10029 of 2023 dt.09-01-2024
(The State of Bihar & Ors. vs. Devendra Sharma) and other
analogous cases in similar matter of illegal/forged appointment,
the Hon'ble Apex Court, in its judgment dated 17.10.2019,
affirmed the order of termination of the forged/illegal
appointment.
4. It is the case of the petitioner that admittedly the
order of termination has been affirmed by the highest Court of
the land, however, this is the fact that the persons who were also
appointed along with the petitioner and who were also party in
the SLP they have been allowed the retiral benefits and the
pension, the name of which have been duly mentioned in
paragraph no. 25 of the writ petition. Based upon the aforesaid
fact, the petitioner submits that he also filed a representation to
ensure payment of other benefits as has been granted in favour
of other identically situated persons, however, the same came to
be rejected vide Memo No. 421(4) dated 17.03.2023 under the
signature of the Directior-in-Chief (Disease Control, Public
Health and Para Medical) Health Services, Bihar, Patna which is
challenged here in the present writ petition.
5. Mr. Shiv, learned counsel for the petitioner basing
upon his claim, especially at paragraph 4.C(1) of the Bihar State
Litigation Policy, 2011, submits that the Government of Bihar
Patna High Court CWJC No.10029 of 2023 dt.09-01-2024
being a model employer should accord the similar benefit to the
persons who are identically situated.
6. A counter affidavit has been filed on behalf of the
respondent-State. Referring to the order passed by the Hon'ble
Supreme Court in the case of Devendra Sharma (supra),
submission has been made that it is the categorical finding of
the highest Court that once it is found that very appointment is
illegal and non-est in the eye of law, no statutory entitlement for
salary or consequential right of pension and other monetary
benefits can arise. Further, in response to the submission made
on behalf of the petitioner with respect to the identically situated
person, who is getting other retiral benefits and pension,
submission has been made that in view of the authoritative
pronouncement of the Hon'ble Supreme Court in the case of
The State of Bihar & Ors. vs. Kirti Narayan Prasad (Civil
Appeal No. 8649 of 2018), the Health Department, Government
of Bihar has also issued a letter No. 1008(4) dated 11.07.2023
and Corrigendum letter No. 1165(4) dated 04.08.2023 with
specific direction to the Regional Authorities to terminate all
those persons from service if they are continuing in service and
further to stop the pension, etc.
7. At this stage, learned counsel for the petitioner
Patna High Court CWJC No.10029 of 2023 dt.09-01-2024
submits that in identically situated matter, the coordinate Bench
of this Court has relegated the matter to the authority concerned
to examine the claim of the petitioner in the light of the
judgment rendered by Hon'ble Court in the case of
Raghunandan Mishra Vs. State of Bihar reported in 1985
PLJR 446 in which the learned Court interpreted Rule 46 of the
Bihar Pension Rules, 1950 which provides that the payment of
pension of a government servant cannot be withheld in case of
termination from service. Further reliance has also been made
on a judgment of the Hon'ble Court in the case of Union Bank
of India & Ors. vs. C.G. Ajay Babu & Anr. reported in (2018) 9
SCC 529.
8. Learned counsel for the petitioner, thus submits that
if the case of the petitioner be also relegated in terms of the
order passed by the coordinate Bench of this Court in the case of
Ganauri Prasad vs. The State of Bihar & Ors. (CWJC No. 7530
of 2023) decided on 18.09.2023, he shall be satisfied and abide
by the order passed by the authority concerned.
9. It is trite law that guarantee of equality of law as
enshrined under Article 14 of the Constitution of India, is a
positive concept and it can not be enforced in a negative manner
and the respondent has rightly relied upon the judgment in the
Patna High Court CWJC No.10029 of 2023 dt.09-01-2024
case of State of Bihar vs. Upendra Narayan Singh (2009) 5
SCC 65 while negating the claim of the petitioner.
10. Despite the aforesaid position in law as well as on
facts only on the ground of parity, as claimed by the petitioner
with other identically situated persons, who are said to have
been allowed some benefits, this Court only for the ends of
justice gives a chance to place his case afresh.
11. Considering the prayer made on behalf of the
petitioner, the present writ petition stands disposed of with a
liberty to the petitioner to file a fresh representation annexing all
the orders on which the petitioner is basing his claim before the
Director-in-Chief, who shall again consider the claim of the
petitioner in the light of the order(s) referred hereinabove and
pass reasoned and speaking order without being prejudiced by
the earlier order passed by the Director-in-Chief, which is put to
challenge in the present writ petition, preferably within a period
of further eight weeks.
12. Accordingly, the writ petition stands disposed of.
(Harish Kumar, J)
Anjani/-
AFR/NAFR
CAV DATE
Uploading Date 11.01.2024
Transmission Date
