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W.P.(S) NO. 3071 OF 2003
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WRIT PETITION (SERVICE) NO. 3071 OF 2003
Prashanna Kumar Jha ... ... Petitioner
- VERSUS -
1. The State of Jharkhand
2. Deputy Secretary, Water Resources Department, Government of
Jharkhand, Ranchi.
3. The Commissioner, Water Resources Department, Government of
Jharkhand, Ranchi.
4. The Joint Secretary, Water Resources Department, Government of
Jharkhand, Ranchi.
5. The Rehabilitation Officer, Medium Irrigation Project, Namkom, Ranchi
6. The State of Bihar.
... Respondents
CORAM: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
For the Petitioner: Mr. Saurav Arun, Advocate.
For the Respondents: Mr. Manoj Tandon, S.C. - II.
C.A.V. On 14/09/2009 PRONOUNCED ON 22/12/2009
Amareshwar Sahay, J. Heard the parties.
2. The prayer of the petitioner in this writ petition is to
quash the office order contained in Memo No. 3342, dated
06.09.1997
(Annexure-7) passed by the Director, Land Acquisition,
Rehabilitation and Water Resources Department, by which, the
service of the petitioner was terminated on the ground that the
Rehabilitation Officer had no jurisdiction/ authority to appoint the
petitioner to the post of Chainman and, therefore, his
appointment was illegal.
3. The case of the petitioner is that he was initially
engaged as a Daily Wage Employee in Class – IV as Chainman by
the Deputy Collector in the Land Acquisition and Rehabilitation
Department. He was working in the Land Acquisition Office at
Muzzaffarpur. All of a sudden, vide Memo No. 51, dated 15.09.1988
(Annexure-1), he was removed from the service with immediate
effect on the ground that his service was not required. In this
manner, 62 persons were removed from the service.
4. It is stated that the petitioner was subsequently
appointed on the vacant post of Chainman (Class – IV) by issue of
Office Order dated 29.07.1989 as contained in Annexure-3, on the
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W.P.(S) NO. 3071 OF 2003
basis of the fact that his services was found satisfactory on daily
wage basis.
By issue of office Order No. 2113 dated 09.06.1994, a
notice was served on the petitioner asking him to file show-cause
as to why his services be not terminated with immediate effect.
The petitioner filed his show-cause.
5. Several persons, similarly situated, filed several Writ
Petitions in the High Court being C.W.J.C. No. 6880 of 1994, 6338 of
1994, 5731 of 1994 and 5829 of 1994 challenging such notices.
After filing of the Writ Petitions, the respondents did not remove the
petitioner from service rather, by filing counter affidavits in the writ
petitions, it was stated that those persons were not going to be
removed and separate individual notices would be served on
them. On this basis, the writ petitions were allowed to be
withdrawn with liberty to the writ petitioners to move before the
appropriate forum if any final order is passed.
6. A notice was published in the News Paper on
07.10.1996 asking several employees including the petitioner to file
show-cause as to why their services should not be terminated as
their appointments were made by the Rehabilitation Officer, who
was not empowered to make such appointment.
The petitioner filed his show-cause stating therein that
he was appointed by the Establishment Committee which is a
Statutory Committee to make appointment and the same was
communicated by the Director (Respondent No. 3), who was also
empowered to make appointment in Class – IV being head of the
Department. Thereafter, by issue of Annexure-7, dated 06.09.1997,
the service of the petitioner was terminated.
7. The grievance of the petitioner is that before issuance
of impugned order of termination dated 06.09.1997 (Annexure-7),
no hearing was given to him and the order has been passed in
violation of Articles 14, 16, 21 and 300 of the Constitution of India.
According to the petitioner, CWJC No. 3345 of 1997
and other analogus cases were filed by several persons before the
Patna High Court challenging the order of their termination on the
same ground that the Rehabilitation Officer had no authority and
jurisdiction to make such appointment. The Patna High Court, by
Judgment dated 01.03.2000, quashed the termination orders and
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W.P.(S) NO. 3071 OF 2003
directed the respondents to consider the matter of regularization
of service of such petitioners in accordance with law within a
period of six months from the date of said order.
The petitioner submits that his case is squarely
covered by decision of the Patna High Court dated 01.03.2000
passed in CWJC No. 3345 of 1997 which has been annexed as
Annexure-9 to this Writ Petition. It is further submitted that similar
Writ Petitions being CWJC No. 1452 of 2001 and CWJC No. 770 of
2001 were filed before the Patna High Court challenging the similar
termination orders and in those Writ Petitions.
The Orders of termination were quashed. The orders
passed in aforesaid Writ Petitions has been annexed as Annexures-
10 and 11 to this Writ Petition.
It is also stated that Letters Patent Appeal filed against
the aforesaid orders have also been dismissed by the Division
Bench. It is further submitted by the petitioner that since the
petitioner was appointed by the Director, Land Acquisition
Department, having power of appointment and, therefore, his
appointment cannot be said to have been made by incompetent
person.
8. On the other hand, a counter affidavit has been filed
by the respondent nos. to 5 stating therein that the petitioner was
a Chainman working in the office of Irrigation, Medium Irrigation
Projection, whose service was terminated by the Order of the
Director, Land Acquisition and Rehabilitation dated 06.09.1997
(Annexure-7 to the Writ Petition). It is further stated that similarly
situated persons preferred Writ Petition being CWJC No. 3345 of
1997 and other analogous cases, which was heard and disposed
of by common Judgment dated 01.03.2000 (Annexure-9 to the
Writ Petition), where the Patna High Court, after categorizing all
the cases into the three categories – A, B and C, was pleased to
quash the impugned orders of termination of the petitioners of
category A and C but dismissed the Writ Petitions of Category-B.
With regard to the persons falling under Category-A, the High
Court gave liberty to the respondents to re-examine the matter
afresh and regarding the persons falling under Category – C,
directed the respondents to consider the matter of regularization
of service of such petitioners.
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W.P.(S) NO. 3071 OF 2003
It is further stated that against the order passed in
CWJC No. 3345 of 1997 and analogous cases, a Letters Patent
Appeal were filed being LPA No. 675 of 2000, 678 of 2000 and
analogous cases and by Judgment contained in Annexure-A, the
Division Bench set aside the Judgment passed by the learned
Single Judge in the aforesaid Writ Petition CWJC No. 3345 of 1997
and analogous cases.
9. A separate counter affidavit has been filed by the
Respondent No. 6 – State of Bihar controverting the stand taken by
the petitioner. It is stated in the said counter affidavit that the
Rehabilitation Officer was never authorized to appoint any
Government servant and, therefore, since the appointment of the
petitioner was made by Rehabilitation Officer and, therefore, the
same was void-ab-initio and illegal and he cannot claim himself to
be a retrenched staff. It is also stated that a similarly situated
person filed CWJC No. 2848 of 1998 (R) – Bhikhari Baitha Vs. State
of Bihar, before this Court, which was dismissed and the case of
the petitioner stands on the similar footing. By annexing Judgment
of the Division Bench, passed in L.P.A. No. 693 of 2000 with
analogous cases, it is stated that the L.P.A. filed by the employees
were dismissed whereas, the appeals filed by the State of Bihar
were allowed by Judgment dated 29.01.2003 wherein, it was held
that appointment were made in violation of the Article 16 of the
Constitution of India and Recruitment Rules and Procedures
provided therein. It was directed that such categories of illegal
appointed employees be terminated by the Department at a
short notice.
10. Mr. Saurav Arun, learned counsel appearing for the
petitioner, relying on a decision of this Court in the case of Ram
Pravesh Kumar (Mapak) Vs. The State of Jharkhand and others
reported in 2004(2) JLJR 152, submitted that in this case, it was held
that the termination of the service on the ground that
Rehabilitation Officer, who had appointed the Writ Petition, had
no jurisdiction to make such appointment, has been held to be not
sustainable in view of the fact that the Director, who was having
the authority to make such appointment, had a tacit approval.
Learned counsel further relied on a decision of
another decision of the Single Bench of this Court in the case of
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W.P.(S) NO. 3071 OF 2003
Gopal Singh Vs. State of Jharkhand and others reported in 2005
(4) JLJR 614.
11. On the other hand, Mr. Manoj Tondan, learned S.C.-II,
appearing for the State submitted that the writ petitioner
suppressed the fact that the Judgment and order passed in
C.W.J.C. No. 3348 of 1997 and analogous cases contained in
Annexure-9, passed by the Single Judge of the Patna High Court
was subsequently set aside by the Division Bench of Patna High
Court vide order dated 29.01.2003 in L.P.A. No. 675 of 2000 with
analogous Appeals. The Judgment of the Division Bench of the
Patna High Court in the aforesaid L.P.As. were not brought to the
notice of this Court while deciding the writ petition of Ram Pravesh
Kumar (Mapak) in W.P.S. No. 1110 of 2002 disposed of on
22.03.2004. The Judgment of the Division Bench has been
annexed with the Counter Affidavit filed by the Respondent Nos. 2
to 5 as also with the counter affidavit of the Respondent No. 6 and
the same is reported in 2003(2) PLJR 27 (D.B.).
12. After going through the aforesaid Judgment of the
Division Bench of Patna High Court reported in 2003(2) PLJR 27
(D.B.), it appears that the Division Bench, in paragraph – 12 of the
Judgment, formulated the questions to be decided in all those
appeals as to whether the initial entry of the writ petitioners or their
initial appointment were in accordance with law or not?
The Division Bench noticed the fact that the learned
Single Judge had observed in his order that the initial entry of all
the Writ Petitioners was bad but further observed that in Category
– ‘A’ cases, the State did not apply its mind because the
petitioners of all those four writ petitioners were possessing the
orders of appointment. In the cases falling under the Category –
‘C’, the learned Single Judge observed that the appointments
were made by Rehabilitation Officer but the said Officer was not
authorized to issue the appointment orders. However, in some of
the letters of appointments, it contained the statements that the
appointments were made on temporary/ adhoc basis as per the
order of the Director. The learned Single Judge also observed that
the initial appointments were issued with specific approval by the
competent authority or the Director General approved the said
appointment by extending the period of appointment, pursuant to
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W.P.(S) NO. 3071 OF 2003
which, the petitioners in those cases continued in service for a long
period.
13. The Division Bench, on consideration of entire facts
and after discussing a number of Judgments, set aside the
Judgment of the learned Single Judge passed in the aforesaid
Batch of Writ Petitions. The Division Bench has held that in the
administrative area, oral approvals for confirmation have no legs
to stand. When an order of appointment is to be issued by a
competent officer, then he is not competent to issue such an oral
order. The State cannot be asked to produce such an order
specially in a case where it has come out with a specific plea that
neither there was an approval nor a consent. In the administrative
field, there is nothing like a tacit order indirect or half hearted
consent. Even if under the cover of protection of extension order,
the petitioner continued in service but they were not treated as
duly appointed temporary employees. When the appointment
were admittedly illegal, bad and contrary to the settled norms
then any plea by anybody that it was with the approval or an
assumed tacit approval would not better the case of the
respondents.
The Divisional Bench further held that if the
appointment itself is in infraction of the Rule or in violation of the
provisions of the Constitution, such an illegal cannot be cured nor
the services can be regularized. There would not arise any
occasion for regularizing the appointment of an employee whose
initial entry itself is tainted and is in total breach of requisite
procedure of recruitment.
An illegal stay in service howsoever long would not
make the same legal. Long stay of an incumbent in an
establishment/ office would not make his stay justifiable. Any
protection in the name of stopper or mercy would be adding
premium to illegality and would be in violation of principles of
justice, fair play and good conscience.
14. From the orders passed by this Court in W.P.(S) No.
1110 of 2002 [Ram Pravesh Kumar (Mapak)], it appears that while
deciding the said Writ Petition, the Judgment passed in C.W.J.C.
No. 3348 of 1997, passed by Single Bench of the Patna High Court
was relied by this Bench. The Judgment passed by the Division
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W.P.(S) NO. 3071 OF 2003
Bench of the Patna High Court setting aside the orders passed in
C.W.J.C. No. 3348 of 1997 was not brought to the notice of this
Court. Since the said Writ Petition No. 1110 of 2002 was decided
only on the basis of the Judgment passed by the Single Bench of
the Patna High Court in C.W.J.C. No. 3348 of 1997 and, therefore,
the same would be of no help to the petitioner since the order of
the Single Judge of Patna High Court in C.W.J.C. No. 3348 of 1997
was overruled by the Division Bench and this fact was not brought
to the notice of this Court while deciding the said writ petition.
Moreover, in the said case, the writ petitioner was
subsequently promoted to the post of ‘Amin’ by the Director and,
therefore, in such a situation, it was held that the Director had the
tacit approval of appointment of the writ petition whereas, in the
present case, there is no such fact and, therefore, on this ground
also, the order passed in the case of Ram Pravesh Kumar (Supra)
does not help the present petitioner.
15. Same is the fate of the orders and Judgment passed
in other Writ Petitions either of this Court or of the Patna High Court,
which was either passed prior to the Judgment passed by the
Division Bench on 29.01.2003 or even thereafter, without noticing
the said Judgment of the Division Bench of Patna High Court in the
aforesaid Letters Patent Appeal.
16. This Writ Petition is fully covered by the Judgment/
Order passed by Division Bench of the Patna High Court in L.P.A.
No. 675 of 2000 and analogous cases on 29.01.1993 reported in
2003(2) PLJR 27 (D.B.). Accordingly, I hold that the petitioner is not
entitled to any relief as claimed by him.
17. For the reasons stated above, I do not find any merit
in this writ petition. Consequently, this writ petition is hereby
dismissed. However, in the facts and circumstances there shall be
no order as to costs.
(Amareshwar Sahay, J)
RC/