Supreme Court upholds judgement by Justice P. B. Bajanthri which had set aside judgement by Justice Madhuresh Prasad

In The State of Bihar & Ors vs. Fuldev Yadav (2025), Supreme Court's Division Bench of Justices J.K. Maheshwari and Vijay Bishnoi passed an order dated August 14, 2025, wherein, it upheld the 5-page long judgement dated April 17, 2025 in Fuldev Yadav vs. The State of Bihar through the Principal Secretary, Health Department, Government of Bihar & Ors. (2025) by Patna High Court's Division Bench comprising of Justices P. B. Bajanthri and S. B. Prasad Singh which had set aside the 8-page long judgement dated August 25, 2022 by Justice Madhuresh Prasad of the High Court. Supreme Court's order reads:"1) Delay condoned. 2) After hearing learned counsel for the petitioner, we see no reason and ground to interfere with the order impugned. Accordingly, the special leave petition is dismissed." 

Justice Prasad had heard the writ application which was filed for quashing of order dated June 25, 2019 passed by the Director-in-Chief (Disease Control), Directorate of Health Services, Government of Bihar, whereby the services of the petitioner as "Ambulance Driver" wasfound to be void ab initio. The petitioner claimed that he was engaged on daily wages basis as ambulance driver on July 10, 1989, which date was evident from Annexure-P/3 to the writ petition. The petitioner also claimed that his services were regularized on the post of driver by the Civil Surgeon-cum-Chief Medical Officer, Madhubani under memo dated August 2, 1991 bearing no.1789. Some appointments came under scrutiny of Lokayukt, Bihar, Patna, wherein a report was submitted by the Civil Surgeon, Madhubani. The petitioner's appointment was considered to be in accordance with law in the proceedings before the Lokayukt, Bihar, however, a show cause notice was issued to the petitioner on May 28, 2019 by the Director-in-Chief (Disease Control), Health Services, Bihar, regarding the validity of the petitioner's appointment. The petitioner responded to the show cause notice by his reply which was received on June 1, 2019. The petitioner's responded to it. His response was not found satisfactory. The petitioner's appointment was found to be void ab initio. His services were terminated by the impugned order. The petitioner's counsel had relied  on decision of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1. 

The respondents relied on the  decision of the Supreme Court in the case of State of Bihar and Others vs. Kirti Narayan Prasad in Civil Appeal No. 8649 of 2018 which in the opinion of Justice Prasad was correct.

The other respondents were:Principal Secretary, Heath Department, Government of Bihar, Director-in-Chief (Disease Control), Directorate, Health Services, Bihar, Deputy Director, Health Services, Bihar, Civil Surgeon-cum-Chief Medical Officer, Madhubani, In Charge Medical Officer, Primary Health Centre, Khutawna, Madhubani and the In-Charge Medical Officer, Referral Hospital, Foolparas, Madhubani. 

It appeared to Justice Prasad that the case in question was covered by this said decision of the Supreme Court and it was a case where the order of appointment itself from its very inception lacks any sanctity whatsoever. Justice Prasad quoted paragraph 17 of the judgment of the Court in the case of Kirti Narayan Prasad (supra) which reads as follows:-
“17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. The genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise. ”

Justice Prasad had concluded: '14. This Court does not find any merit in the writ petition for the reasons indicated hereinabove. 15. The writ application is accordingly dismissed.' 

The High Court's Division Bench of Justices Bajanthri and Singh set aside the judgement by Justice Prasad. It observed: The learned Single Judge has committed error in not noticing that there is no withdrawal/cancellation/modifying/ reviewing the regularization order dated 02.08.1991 vide Memo bearing No.1789. As long as regularization order dated 02.08.1991 is not cancelled or reviewed in the manner known to the law and merely relying on Hon’ble Supreme Court decision to the effect that appointment is illegal and void ab initio cannot be held. As long as regularization order dated 02.08.1991 vide Memo bearing No.1789 is intact and it is even to this day in vogue, therefore, the respondents cannot resort short circuit method. Further, it is to be noticed that if there are errors committed by the Appointing Authority/ Regularizing Authority in that event appellant shall not be penalized. No inquiry or finality has attained insofar as taking action against such of those officials who have undertaken the exercise of appointment and regularization." The judgement was authored by Justice Bajanthri. 

It also observed: "it is to be noticed that appellant has discharged the duties of the post of Driver, that too in the Hospital and it is an essential service. After extracting services for these many years and for no fault on his part, he should not be punished. In fact, after regularization to the post of Driver on 02.08.1991, appellant would be regular holder of the post of Driver and he is a Government servant. Before passing any adverse order which has a civil consequences, in such circumstances, he is governed by Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. The same should have been resorted to by the Disciplinary Authority/Appointing Authority. These are all statutory right vested with the Government servant. For permanent employee of the State of Bihar, if any action is required to be taken insofar as passing major penalty order like termination/dismissal/removal/compulsory retirement/withholding of increments with cumulative effect, invariably departmental inquiry should be resorted to for imposition of major penalty under Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. The same has not been resorted to in the present case. These are all the relevant statutory provisions which have not been taken note of by the learned Single Judge. Therefore, the order of the learned Single Judge dated 25.08.2022 passed in C.W.J.C. No.17382 of 2019 and the impugned termination order dated 25.06.2019 passed by the Director-in-Chief (Disease Control), Directorate of Health Services, Government of Bihar, Patna, stand set aside. He is directed to restore the position of the appellant to the extent of reinstating him within a period of one month from the date of receipt of this order. Thereafter, extend all service and monetary benefits during the intervening period from 25.06.2019 till reinstatement read with the arrears of payments are made within a period of three months."