Patna High Court
Soman Bhagat vs The State Of Bihar And Ors on 19 June, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6382 of 2017
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Mulmul Devi, W/o Late Soman Bhagat, Resident of Village - Sapha, P.S. -
Sour Bazar, District Saharsa.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
2. Director in Chief (Nursing), Health Services, Bihar, Patna.
3. The Civil Surgeon Cum Chief Medical Officer, Supaul.
4. Incharge Medical Officer, Primary Health Centre, Basantpur, District Supaul
5. District Treasury Officer Supaul.
6. Accountant General, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shiv Kumar, Advocate
For the Respondent/s : Mr. Kamlesh Kishore, AC to SC-12
For the AG, Bihar : Mr. Ram Kinker Choubey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 19-06-2025
Heard Mr. Shiv Kumar, learned Advocate for the
petitioner, Mr. Kamlesh Kishore, learned Advocate for the State
and Mr. Ram Kinker Choubey, learned Advocate for the
Accountant General.
2. The original petitioner came before this Court
seeking a direction upon the respondent authorities to fix and
pay all his retiral benefits, including pension, gratuity, leave
encashment, provident fund, group insurance and other legal
dues payable to him after counting his entire period of service
from 18.01.1981 to 30.06.2014 as well as the benefits under
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ACP/MACP with up-to-date interest.
3. It would be pertinent to mention here that during
the pendency of the writ petition, the original petitioner died on
12.10.2024
and pursuant to the order of this Court dated
05.12.2024, the wife of the original petitioner came to be
substituted, who has been pursuing this matter.
4. The relevant admitted facts, as has been culled out
from the materials available on record, are that the husband of
the petitioner was duly appointed to the post of Male Family
Welfare Worker by the Civil Surgeon-cum-Chief Medical
Officer, Ranchi under Memo No.88 dated 15.01.1981 and
accordingly he submitted his joining on 18.01.1981 in the office
of the In-charge Medical Officer, Primary Health Center, Palkot,
Ranchi. Subsequently, the husband of the petitioner was
transferred to the Primary Health Center, Birpur, Saharsa and
accordingly he was relieved on 04.01.1982. The services of the
husband of the petitioner along with several other persons were
confirmed vide Memo No.3330 dated 27.12.1990 by the order
of the Civil Surgeon-cum-Chief Medical Officer, Saharsa.
5. On being satisfied and after completion of ten years
of service, the husband of the petitioner was extended benefit of
first time bound promotion in terms with the Resolution
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No.10770 dated 30.12.1981 issued by the Finance Department,
Bihar. The husband of the petitioner also passed Hindi Noting
and Drafting Examination in the year 1997 itself. While the
husband of the petitioner was discharging his duty on the afore-
noted post, all of a sudden, vide order contained in Memo
No.514 dated 30.04.2003, his service was terminated by the
Civil Surgeon-cum-Chief Medical Officer, Supaul, on the
ground of his appointment being declared as illegal based upon
the forged appointment letter. This order of termination was
challenged by the husband of the petitioner in C.W.J.C. No.5707
of 2003; which application was allowed with a direction to
reinstate the petitioner in service with liberty to the State
Government to identify such cases and take disciplinary action
after holding enquiry and giving an opportunity of being heard
to them.
6. The State being aggrieved assailed the order of the
learned Single Judge in L.P.A. No.984 of 2003, wherein the
learned Division Bench relegated the matter to the authorities of
the Health Department, Bihar directing them to reconsider the
case of all the affected employees on the basis of relevant facts
and law settled in para-44 of the judgment passed in the case of
Secretary, State of Karnataka and Others v. Uma Devi (3)
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and Others [(2006) 4 SCC 1].
7. It would be pertinent to note here that pursuant to
the direction of the learned Division Bench of this Court, a Five
Men Committee was constituted to examine the nature and
status of appointment of affected person(s) and after completion
of the enquiry, the husband of the petitioner was communicated
with an enquiry report by which his appointment was again held
to be forged by the Enquiry Committee.
8. The order and the enquiry report to the extent
whereby the appointment of the husband of the petitioner was
termed as illegal and forged, again put to challenge in C.W.J.C.
No.16924 of 2009, wherein a Bench of this Court has been
pleased to set aside the impugned order of termination and
directed the respondents to reinstate the petitioner’s husband
with all consequential benefits. After much persuasion, the
husband of the petitioner was reinstated in service but as no
consequential benefit(s) as directed by this Court was accorded
to him, a contempt petition bearing M.J.C. No.4124 of 2012
came to be filed. In the meanwhile, the husband of the petitioner
was superannuated from his service but no pre and post
retiral benefits have been paid to him in the premise that
the State had preferred L.P.A. No. 364 of 2014 on being
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aggrieved with the order dated 13.09.2011 passed in C.W.J.C.
No. 16924 of 2009. Finally, the L.P.A. No. 364 of 2014
preferred by the State has been disposed off by the learned
Division Bench of this Court with a direction the appellate
authority to consider the case of the petitioner in the light of
ratio laid down in the case of State of Bihar and Others v.
Devendra Sharma [(2020) 15 SCC 466].
9. In the light of the order of the learned Division
Bench, the husband of the petitioner preferred a detailed
representation before the Director-in-Chief (Administration)
Health Services, Bihar, Patna; however, the claim of the
petitioner for post retiral benefits and other dues came to be
rejected vide Memo No. 2161 dated 04.08.2022 issued under the
signature of Civil Surgeon-cum-Chief Medical Officer, Supaul.
The legality of the afore-noted order has also been put to
challenge by filing an Interlocutory Application No.1 of 2023.
10. It would be worth noting here that while the
present matter was pending consideration before this Court, the
State Authorities on being aggrieved with the order dated
12.10.2023 passed in the present matter (C.W.J.C. No.6382 of
2017), preferred L.P.A. No.1273 of 2023, wherein the learned
Division Bench taking note of the fact that the order of the
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learned Single Judge was based on the alleged non-compliance
of the order dated 25.07.2023 and thereby directed for personal
appearance of the Director-in-Chief (Administration) Health
Services, Bihar, Patna, have finally set aside both the orders
dated 25.07.2023 and 12.10.2023 and directed the matter to be
posted before the Bench having roster; accordingly, the matter is
placed before this Court.
11. Mr. Shiv Kumar, learned Advocate for the
petitioner while assailing the impugned order as contained in
Memo No.2161 dated 04.08.2022 has strenuously argued that
the order is wholly without jurisdiction, inasmuch as the learned
Division Bench had directed the appellate authority to consider
the case of the writ-petitioner and thus the application of the
husband of the petitioner ought to be considered by the
Director-in-Chief (Administration) Health Services, Bihar, Patna
who is the appellate authority but the impugned order came to
be passed by the Civil Surgeon-cum-Chief Medical Officer,
Supaul, the Disciplinary Authority of the petitioner and, as such,
fit to be set aside, on this score alone. The concerned authority
also failed to consider that several persons, who were even party
either in Civil Appeal No.7879/2019 and analogous cases or
Civil Appeal No.8649/2018 and analogous cases, such as Sri
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Surendra Prasad, Sri Arvind Kumar, Sri Parmeshwar Yadav and
Khursid Alam, who had also been working as Basic Health
Workers like the petitioner’s husband, have been paid their
entire post retiral benefits as well as the benefit of ACP/MACP.
12. Learned Advocate for the petitioner further
contended that admittedly the petitioner’s husband was not a
party to Civil Appeal No.7879/2019 and analogous cases or
Civil Appeal No.8649/2018 and analogous cases and, as such, in
no circumstances, the appointment of the petitioner’s husband
ought to be termed as forged appointment. It is further
contended that forgery is a question of fact which is required to
be proved in a duly constituted departmental proceeding and
thus the service of the husband of the petitioner could not have
been terminated taking shelter of the judgment/decision
rendered by the Hon’ble Supreme Court, where the original
petitioner was not even a party. The husband of the petitioner
has never been afforded proper opportunity of hearing to rebut
the imputation. It is the admitted position that the original
petitioner was appointed long back in the year 1981 and
thereafter he rendered his services for more than 35 years;
during the period in question, the husband of the petitioner was
accorded all the benefits of Government employee, including
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time bound promotion, pay increments and the revision of pay
on being satisfied his service to be legal and satisfactory. Thus
after superannuation, the service of the original petitioner
cannot be termed as forged and fabricated without holding any
departmental proceeding.
13. Learned Advocate for the petitioner, in order to
buttress his submission that the charge against a person that he
obtained appointment by fraudulent means and production of
forged certificate is required to be proved in a duly constituted
departmental proceeding, in absence of that, the authorities
cannot take any adverse decision; reliance has been placed on
various decisions of the Hon’ble Supreme Court as well as this
Court, including the case of Punjab State Electricity Board
and Others v. Leela Singh [(2007) 12 SCC 146], Subodh
Kumar Prasad v. State of Bihar and Others [2001(3) PLJR
(SC) 187], Sitendra Kumar Singh with Analogous Cases v.
State of Bihar and Others [2003 (4) PLJR 282], Rajendra
Kamti and Another v. Lalit Narayan Mishra University &
Others [2006 (3) PLJR 83], State of Bihar v. Purendra Sulan
Kit and another analogous cases [2006 (3) PLJR 386], Ram
Krishna Dubey v. State of Bihar and Others [2008 (1) PLJR
841], State of Bihar and Others v. Indra Mohan Rai [2009
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(2) PLJR 869], and Rohit Raj v. The State of Bihar and
Others [2023 (1) PLJR 257].
14. Mr. Kamlesh Kishore, learned Advocate for the
State while dispelling the aforesaid contentions has vehemently
argued that the case of the petitioner is one of the similar
matters related to the illegal/forged appointment made by the
Regional Authorities of the Health Department in an arbitrary
manner ignoring the constitutional mandate for making such
appointment. The petitioner has not been able to prove the case
regarding her husband’s engagement in accordance with law. It
is further contended that since the very appointment of the
petitioner’s husband was void ab initio; thus the length of
service is nothing in the eyes of law; illegality cannot be
perpetuated. When the matter of illegal/forged appointment
came to light, many persons were terminated from service in
which the petitioner’s husband was also terminated from the
service by the Civil Surgeon. The petitioner could not claim
parity with other persons. Moreover, in the case of the original
petitioner, the State on being aggrieved with the order passed by
a Bench of this Court in C.W.J.C. No.16924 of 2009, preferred
L.P.A. No.364 of 2014, which was disposed off with a direction
to the State Authorities to consider the case of the petitioner in
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the light of the decision rendered by the Apex Court in
Devendra Sharma (supra).
15. Learned Advocate for the State finally urged that
the Hon’ble Supreme Court in similar matter of illegal
appointment has been pleased to hold vide its decision rendered
in Devendra Sharma (supra) and The State of Bihar and
Others v. Kirti Narayan Prasad [Civil Appeal No. 8649 of
2018 arising out of SLP(C) No.24782 of 2012] that since the
very appointment of the petitioners is void ab initio, they cannot
be said to be civil servant of the State; therefore, holding
disciplinary proceeding envisaged under Article 311 of the
Constitution or under any other disciplinary rules shall not arise.
The case of the petitioner was duly considered in the light of the
direction of the learned Division Bench and found squarely
covered by the judgments of Devendra Sharma and Kirti
Narayan Prasad (supra) and accordingly the impugned order
came to be passed in tune with the decision of the Apex Court.
In the aforesaid factual and legal background, the claim of the
petitioner’s husband for retiral benefit and other dues have been
rejected on account of his appointment being void ab initio. In
sum and substance, the entire case of the respondent authorities
is based on the decision rendered in the case of Devendra
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Sharma and Kirti Narayan Prasad (supra).
16. This Court has given patient hearing to the learned
Advocate for the respective parties and meticulously perused the
materials available on record.
17. Before taking up the issue raised in the case in
hand regarding entitlement of the husband of the petitioner for
pre and post retiral benefits as also as to whether the
appointment of the petitioner’s husband can be held to be illegal
and void ab initio without holding a full fledged departmental
proceeding and is it sustainable; it would be apposite and
prudent to this Court to deal with the legal position on the anvil
of which the matter would be considered.
18. It is the settled principles that the rule of law is
antithesis of arbitrariness and illegality and it is the foremost
duty of the Court to enforce it to neutralise the arbitrariness and
illegality, if any committed by the State and its authorities.
19. The Full Bench of this Court in the case of Ram
Sevak Yadav and another analogus cases v. The State of
Bihar and Others [2013 SCC OnLine Pat 67] after taking
note of the Constitution Bench decision of the Hon’ble Supreme
Court in the case of Uma Devi (supra) has been pleased to
crystallize and reiterate the settled position that the period of
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service being irrelevant and the illegal appointment void ab
initio cannot be regularized in any circumstances.
20. Article 311 of the Constitution of India deals with
the dismissal, removal or reduction in rank of civil servants with
a safeguard to protect them from arbitrary action by the
Government. Article 311 clearly mandates that before dismissal,
removal or reduction in rank of civil servants, they must be
informed of the charges against them and given a reasonable
opportunity to be heard. The aforesaid right is accorded with
certain exception, including that dismissal or removal based on
a criminal conviction and when it is not reasonably practicable
to hold an enquiry and/or if the same is against the national
security interest.
21. True it is that if an employee is not a civil servant,
he would not be entitled to get protection under Article 311 of
the Constitution, but in a case where a person was duly
appointed after following the procedures which is not under
challenge and he has been allowed to discharge his duty for a
pretty long time of more than two and three decades; in no
circumstances, it is outrightly said that there is not even a
semblance of the delinquent being a public/civil servant unless
his stand rebutted and disproved in accordance with law.
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22. There is no dispute that forgery is a question of
fact and to allege that a person obtained appointment on the
basis of forgery, casts an aspersion and stigma. The procedure
for it therefore has to be fair and proper by holding a proper
enquiry with due opportunity of defence and consideration of
the defence followed by a reasoned order, as has been held in
the case of Leela Singh (supra).
23. The afore-noted principles stood settled by the
Apex Court in the case of Roshni Devi and Others v. State of
Haryana and Others [(1998) 8 SCC 59] that the recruitment
process pursuant to which appointment was made is found to be
invalid, such appointment should be saved on equitable
consideration keeping in view the prolonged continuation of
such employees.
24. The principles laid down in the case of Roshni
Devi (supra) have further been reiterated in the case of Union of
India and Others v. Kishorilal Bablani [(1999) 1 SCC 729]
and also considered in the case of Roshni Lal and Others v.
International Airport Authority of India and Others [1980
Supp SCC 449/1981 SCC (L&S) 303], wherein the Court held
it unjustified and restrained to reopen the question of legality of
appointment after several years of the appointment.
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25. True it is that the case of irregular appointment
and forged appointment are rest on different pedestal and mere
lapse of time cannot sanctify illegality but it is also true that
before holding the appointment as illegal and forged, a person
cannot be deprived of fair opportunity of being heard; in no case
the action of terminating such employees without enquiry can
be allowed to sustain.
26. In the case of Subodh Kumar Prasad (supra), the
Apex Court has held that obtaining of service on the strength of
fake appointment letter constitutes a case of disciplinary action.
27. The learned Division Bench of this Court in the
case of Ram Krishna Dubey (supra) has held that a permanent
employee’s services can only be terminated by following the
procedure laid in Rules for removal of a permanent employee
and that procedure must be accorded within Article 311(2) of the
Constitution. The Court further observed that since the
petitioner was appointed on temporary basis which was
extended from time to time and finally he was regularized, his
services terminated after long period on the ground that his
initial appointment was without due process of selection
procedure is said to be unsustainable. Since the petitioner was
permanently absorbed, his service could have been terminated
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only in the manner the service of a permanent civil servant can
be dispensed with. The Court further clarified that the present
case being not a case of claim of regularization but the
termination of the permanent employee; thus the decision
rendered in the case of Uma Devi (supra) and State of M.P.
and Others v. Lalit Kumar Verma [(2007) 1 SCC 575] would
not be applicable.
28. Further the learned Division Bench of this Court
in the case of Indra Mohan Rai (supra) has held that the
appointment made on temporary basis and continued for a long
period during which increments and benefits of pay revision
given to him; his service cannot be terminated without
following the procedure under Article 311(2) of the Constitution
of India. The ground taken by the authorities that the
appointment suffered from illegality as the procedure prescribed
in various circulars not followed is held to be unsustainable.
29. This Court while considering an identical matter
in the case of Rohit Raj (supra) has held in paragraphs-19, 20
and 21 as follows:-
“19. At this juncture, learned counsel for
the State heavily relied upon the judgment
rendered by the Hon’ble Supreme Court in the
case of State of Bihar and Ors. Vs. Kirti
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of 2018 [arising out of SLP (Civil) No. 24742 of
2012 and other analogous cases] wherein the
Supreme Court while dealing with the matter
relating to fake and forged appointment letter, has
been pleased to hold that since the appointment of
the petitioners’ is, ab initio, void they cannot be
said to be Civil Servants of the State, therefore,
holding disciplinary proceedings envisaged by
Article 311 of the Constitution of India or under
any other disciplinary Rules, shall not arise.
Further reliance has been made on an Apex
Court’s judgment rendered in the case of State of
Bihar and Ors. Vs. Devendra Sharma, [Civil
Appeal No. 7879 of 2019, arising out of SLP
(Civil) No. 11885 of 2012] wherein the Apex
Court while dealing with the matter of large
number of candidates, who were appointed as
Class- III and Class-IV posts in Health
Department in Government of Bihar, whose
services were terminated on being found forged
and fabricated without following any Rules and
Regulations. The Apex Court having considered
catena of judgments, came to the conclusion that
the appointments of the employees in the present
set of appeals were not irregular appointment,
rather they are illegal appointments in terms of the
ratio of Supreme Court judgment in Secretary,
State of Karnataka and others Vs. Uma Devi
(3) and others, reported in (2006) 4 SCC 1. As
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sanctioned post, without any advertisement,
giving opportunity to all eligible candidates to
apply and seek public employment and without
any method of recruitments, such appointments
were backdoor entries, an act of nepotism and
favoritism and thus from any judicial standards
cannot be said to be irregular appointments, but
are illegal appointments are wholly arbitrary
process.
20. Having carefully gone through the
judgments passed by the Hon’ble Supreme Court,
this Court is of the view that both the judgments
relied by the learned counsel for the State is not
applicable in the present facts of the case, as in
the present case, at no point of time, the deceased
employee had put to departmental proceeding nor
any enquiry had ever been conducted by any of
the independent agency or the authority. Even the
investigation pursuant to the FIR had also never
been reached to its final logical conclusion and in
fact on account of the death of Mrs. Amrita Sinha,
has been abated and now the FIR has no material
bearing over the issue.
21. It is also settled proposition of law that
a departmental proceeding against an employee
totally abates on death of an employee for the
simple reason that an order to punish an
employee, there must be subsistence of employer
employee relationship. Once an employee died,
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is a personal defence available to the employee
and no person can be substituted in place of a
dead employee to defend the conduct of a dead
employee, no order could have been passed
withholding the retirement or any outstanding
dues.”
30. Now coming to the case in hand, admittedly, the
husband of the petitioner was duly appointed long back in the
year 1981 and before the impugned order came to be passed in
the year 2020, twice his service was terminated which led to
filing of the writ petition before this Court and, on both the time,
the order of termination came to be set aside giving liberty to
the authorities to proceed afresh in accordance with law but on
none of the occasion, the husband of the petitioner was
subjected to full fledged enquiry and placed in a departmental
proceeding giving proper opportunity of hearing.
31. It would be pertinent, at this stage, to refer the
decision of Basudeo Tiwary Vs. Sido Kanhu University & Ors.,
reported in (1998) 8 SCC 194, wherein the Hon’ble Supreme
Court emphasized the utmost necessity to hold an enquiry in the
matter of forged appointment with an opportunity of defence to
the charged employee, even in absence of any provision to this
effect. The relevant paragraph is encapsulated hereinbelow:-
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that an appointment could be terminated at
any time without notice if the same had been
made contrary to the provisions of the Act,
statutes, rules or regulations or in any
irregular or unauthorised manner. The
condition precedent for exercise of this power
is that an appointment had been made
contrary to the Act, rules, statutes and
regulations or otherwise. In order to arrive at
a conclusion that an appointment is contrary
to the provisions of the Act, statutes, rules or
regulations, etc., a finding has to be recorded
and unless such a finding is recorded, the
termination cannot be made, but to arrive at
such a conclusion necessarily an enquiry will
have to be made as to whether such
appointment was contrary to the provisions
of the Act etc. If in a given case such exercise
is absent, the condition precedent stands
unfulfilled. To arrive at such a finding
necessarily enquiry will have to be held and
in holding such an enquiry, the person whose
appointment is under enquiry will have to be
issued a notice. If notice is not given to him,
then it is like playing Hamlet without the
Prince of Denmark, that is, if the employee
concerned whose rights are affected is not
given notice of such a proceeding and a
conclusion is drawn in his absence, such a
conclusion would not be just, fair or
reasonable as noticed by this Court in D.T.C.
Mazdoor Sabha case [1991 Supp (1) SCC
600 : 1991 SCC (L&S) 1213 : AIR 1991 SC
101] . In such an event, we have to hold that
in the provision, there is an implied
requirement of hearing for the purpose of
arriving at a conclusion that an appointment
had been made contrary to the Act, statute,
rule or regulation etc. and it is only on such a
conclusion being drawn, the services of the
person could be terminated without further
notice. That is how Section 35(3) in this case
will have to be read.”
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32. The fact cannot be ignored that on the last
occasion, when the learned Division Bench of this Court in
L.P.A. No.364 of 2014 relegated the matter to the appellate
authority to consider the claim of the petitioner in the light of
the decision rendered in the case of Devendra Sharma (supra),
the impugned order came to be passed by the concerned Civil
Surgeon, who is not at all the appellate authority and thus the
order can be termed to be wholly without jurisdiction. If an
order is directed to be passed by an authority, the same is
required to be considered and passed by that authority alone.
Any order passed by other authority that too subordinate to such
authority, has no sanction in the law.
33. This Court also finds that the husband of the
petitioner superannuated long back in the year 2014 itself and
the other identically situated persons, especially named in the
writ petition, have been extended their pre and post retiral
benefits, which facts has also not been specifically denied and
now the erstwhile employee is no more alive; hence, relegating
the matter to the department to proceed the matter afresh would
not arise.
34. In view of the discussions and observations made
hereinabove as also in the light of the law laid down by the
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Apex Court as well as this Court in the afore-noted judgments,
the order impugned as contained in Memo No. 2161 dated
04.08.2022 passed by the respondent no.3, is hereby set aside.
35. This Court directs the concerned respondent(s) to
ensure payment of all the admissible death-cum-
retiral/outstanding dues to the petitioner, preferably within a
period of eight weeks from the date of receipt/production of a
copy of this order.
36. The writ petition stands allowed to the extent
indicated above.
37. There shall be no order as to cost(s).
38. Pending application(s), if any shall also stands
disposed off.
(Harish Kumar, J)
rohit/-
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