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." 

 

Justice Purnendu Singh as part of DB upholds verdict by Justice Anil Kumar Sinha in a CCA case from 1991

Supreme Court's decision in Ram Kishan vs. Union of India & Ors. (AIR 1996 SC 255) irrelevant in this CCA case? 

Justice Purnendu Singh as part of Division Bench led by Acting Chief Justice Ashutosh Kumar authored a 9-page long judgment dated July 1, 2025 wherein, he upheld the verdict by Justice Anil Kumar Sinha in Awadh Tiwari vs. The State of Bihar (2025). Justice Singh who authored the judgement observed:"...the appellant has not been able to show any illegality in the order of the learned Single Judge. The Court finds no merit in the instant appeal. The appeal is dismissed."

In the year 1989 while posted as Junior Engineer in the Minor Distributory Division-IX, Ghatshila Camp, Galudih, as a result of an agreement entered into, M/s Barauni Tiles was required supply PCC tiles which the appellant was to receive. Awadh Tiwari, the appellant received the same, however without waiting for the quality test report of the tiles, payment was made to the contractor, causing financial loss to the government.

By an order contained in Resolution no.1691 dated July 17, 1991, a decision was taken to initiate a departmental proceeding against the appellant under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 which was subsequently converted into a proceeding under Rule 55A of the Rules. The appellant was served with a memo of charge according to which he during his tenure had received substandard tiles for the purpose of lining of canal. The tiles supplied at the ratio 1:2.97 of cement and sand against the specified ratio of 1:2. A sum of Rs.11,73,000/ had been paid to the contractor causing loss to the State exchequer. 

The charge was to the effect that the appellant was negligent and casual in his duty causing financial loss to the State. He had prepared the bill for payment to the contractor without getting the quality of the supplied tiles tested. The appellant submitted his reply to the show cause notice and on consideration of the contents thereof, the respondents came out with an order of punishment dated December 11, 1999 according to which there was stoppage of promotion for a period of ten years and further order of recovery of a sum to the tune of Rs.1,46,625.

The appellant had moved to the High Court in CWJC no.1015 of 2000 against the order of punishment which was allowed vide order dated February 17, 2006, the order of punishment quashed and the respondents were directed to refund the recovered amount on the basis of the said order to the appellant forthwith. 

The respondents preferred an appeal (LPA no.790 of 2007) against the order allowing the writ application (CWJC no.1015 of 2000). Though the judgment passed in the writ application was not interfered with and the appeal dismissed, however it was observed that if the law permits, the State of Bihar can proceed against the concerned employee in accordance with law.

The respondents included Secretary, Water Resources Department, Joint Secretary, Water Resources Department, Deputy Secretary, Water Resources Department and Engineer-In-Chief Middle, Water Resources Department, Government of Bihar. 

The respondents came out with an order dated January 18, 2011 stating therein that a decision was taken to proceed against the appellant and two others under Rule 17 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. The chargesheet containing the charges was enclosed with the order, to which the appellant filed his reply.

When the appellant retired from service on May 31, 2011, the departmental proceeding against the petitioner was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules.

The enquiry officer submitted his report dated January 12, 2012 not finding the charges to have been proved against the appellant. Disagreeing with the contents of the enquiry report, a detailed second show cause contained in Memo no.683 dated June 26, 2012 was issued under the signature of the Engineer-in-Chief (Central), Water Resources Department, which was brought on record with the counter affidavit of the respondents in the writ application.

The letter showed that the point of difference of the disciplinary authority with the report of the enquiry officer was two fold. Firstly, that inspite of the ratio of cement and sand in the tiles supplied by the contractor being 1:2.97 in place of the specified 1:2, steps had been taken by the appellant in the measurement book for payment to the contractor, though he should have obtained the directions of the higher authorities with respect to the quality test report and only thereafter should have proceeded to take steps for payment. The second point of difference was to the effect that a direction had been given to the Barauni Tiles i.e. the contractor to replace the tiles but the contractor had not carried out the directions. Inspite of having knowledge of this fact, the appellant proceeded to make entries in the measurement book and recommend for payment of amount to the contractor.

The appellant filed his response to the show cause notice dated June 26, 2012 of the disciplinary authority differing with the contents of the enquiry report. After considering the reply of the appellant, the respondents passed an order contained in Memo no.374 dated March 20, 2013 under Rule 43(b) of Bihar Pension Rules imposing punishment of 5% pension. Following dismissal of the writ application preferred by the appellant against the order of punishment, the appeal was preferred.

The counsel for the appellant submitted that in the enquiry conducted in the departmental proceeding against the appellant, the enquiry officer in his report dated January 12, 2012 did not find any of the three charges to have been proved. Though the disciplinary authority issued a second show cause notice dated June 26, 2012, however no reason was given therein for differing with the contents of the enquiry report. It merely repeated the charges as contained in the chargesheet issued in the departmental proceeding. It was submitted that the second show cause notice as also the order of punishment are both unsustainable. The counsel for the appellant relied on the judgment of the Supreme Court in the case of Ram Kishan vs. Union of India & Ors. (AIR 1996 SC 255). 

But Justice Singh observed:"So far as the judgment in the case of Ram Kishan (supra) relied on by the learned counsel for the appellant is concerned, the same is of no assistance to the appellant herein, the facts of the two cases being distinct and distinguishable.While the instant case relates to steps of payment having been taken by the delinquent/appellant inspite of sub-quality tiles having been supplied by the contractor, the case cited relates to misconduct of the Constable/appellant therein of having facilitate supply of alcohol to an under-trial prisoner and of having abused his superior officer." 

Siya Ram Sahi and Shally Kumari were the counsels for the appellant. 

The appellant was proceeded against departmentally under the CCA Rules while still in service, on his retirement on May 31, 2011, the proceedings were converted into one under Rule 43(b) of the Bihar Pension Rules. The enquiry officer submitted his report on January 12, 2012 not finding any of the charges levelled against the appellant to have been proved. The disciplinary authority disagreeing with the contents of the enquiry report issued a second show cause notice to the appellant on June 26, 2012 to which the appellant submitted his reply. Not finding the reply to be satisfactory, another show cause notice was issued to the appellant on December 3, 2012 stating therein that it was proposed to impose a punishment on the appellant under Rule 43(b) of the Bihar Pension Rules. The appellant was given time of 15 days to submit his reply which was filed by the appellant on December 22, 2012. The reply of the appellant was not found satisfactory and the order of punishment was passed which was challenged unsuccessfully in the writ application before Justice Sinha, the single judge bench. 

The writ application was preferred against the order dated March 20, 2013 bearing Memo No.374 passed by Engineer-In-Chief (Central), Water Resources Department, Government of Bihar, Patna whereby punishment of stoppage of 5% pension was imposed upon the petitioner in a departmental proceeding concluded under Rule 43(b) of the Bihar Pension Rules. 

Before dismissing the writ application, in his 10-page long judgement dated March 14, 2023, Justice Sinha had observed:"...the Court while testing the validity of the order of the punishment is required to see the flaw into decision making process and cannot sit upon the decision itself as an appellate authority. Even assuming the aforesaid instruction of Cabinet (Vigilance) Department dated 06.07.1992 vide Memo No. 1045 is applicable in the case of the petitioner in relation to the permissible limit of difference in ratio up to 25% but the difference of ratio found by the Laboratory in the present case to the extent of 1:2.97 is more than the permissible limit of 25%. The petitioner has not pointed out any procedural infirmity and or violation of principle of natural justice in the departmental proceeding. In view of the aforesaid discussions, I come to the conclusion that the impugned order of punishment does not require any interference by this Court..."

The judgement by the Division Bench which upheld Justice Sinha's judgement appears to be a fit case for appeal in the Supreme Court.