High Court Jharkhand High Court

Bihar State Seeds Corporation vs Shri Durga Ram on 20 August, 2008

Jharkhand High Court
Bihar State Seeds Corporation vs Shri Durga Ram on 20 August, 2008
          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      L.P.A. No. 45 of 2008
                                       -----
           Bihar State Seeds Corporation Ltd. & Anr.       ...     Appellants
                                             Versus
           Shri Durga Ram & Anr.                           ...     Respondents
                                       -----
           CORAM : HON'BLE THE CHIEF JUSTICE
                   HON'BLE MR. JUSTICE D.K. SINHA
                                     ----
            For the Appellants :   Mr. Delip Jerath, Advocate
            For the Respondents : Mr. Rajendra Prasad, Advocate
                                     -----
07/20.08.2008

This appeal has been preferred by the Bihar State Seeds

Corporation Limited against the order dated 07.01.2008 passed in Civil

Review No. 86 of 2003 by which the Review Petition filed by the Appellant-

Corporation was dismissed.

2. The Review Petition had been filed against the order dated

31.10.2002 passed in C.W.J.C. No. 445 of 2001 by which the writ petition

filed by the respondent who had been appointed as a night guard by the

Appellant-Corporation was allowed. Consequently, the impugned order of

his termination from the service of the Appellant-Corporation was quashed

and the Appellant-Corporation was directed to reinstate the respondent in

service immediately with all consequential benefits. As already stated, the

Appellant-Corporation had filed a Review Petition against the order passed

in that writ petition which was also dismissed and thereafter this appeal has

been preferred.

3. Assailing the order passed by the learned Single Judge in the

Review Petition as also in the Writ Petition, it was first of all submitted,

controverting the office objection, that this appeal is maintainable against

the order passed in a Review Petition as it is a continuation of the

proceedings, which arose out of a Writ Petition filed under Article 226 of

the Constitution. Insofar as the merit of the matter is concerned, it was

contended that a cut-off date had not been fixed for regularization of those

persons, who had been appointed after 01.08.1985 on daily wages and
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only those persons, who had been appointed prior to 01.08.1985 could be

made regular in service. Since the appointment of the respondent was

made on 01.10.1985, according to the appellant organization, he was not

entitled for regularization. Counsel for the respondent, on the other hand,

submitted that the appeal against the order passed in the Review Petition

ought not to have been held maintainable and, in order to establish this

position, he has relied on Rule 203 of the High Court of Jharkhand Rules,

2001. However, we have noticed that Rule 203 of the High Court of

Jharkhand Rules, 2001 did not even, remotely, indicate any bar for an

appeal against an order passed in a review petition and it merely indicates

the circumstance under which a review petition can be filed as also the

procedure in this regard. On the contrary, the counsel for the appellant

corporation has invited the attention of this Court to Clause 10 of the High

Court of Jharkhand Rules, 2001 read with Section 141 of the Code of Civil

Procedure (explanation) indicating that the procedure provided in the Code

of Civil Procedure will be applicable in regard to suits in all proceeding in

any Court of civil jurisdiction, but the proceeding will not include any

proceeding under Article 226 of the Constitution. Thus, on perusal of the

explanation to Section 141 of the Code of Civil Procedure, it clearly

emerges that even if Letters Patent Appeal were held to be barred against

an order passed in a Review Petition, the same would be applicable only in

regard to such Review Petition which arises out of suit and will not include

any proceeding which arises out of Article 226 of the Constitution. As the

impugned order, in this appeal, had been passed in a Review Petition

arising out of a proceeding under Article 226 of the Constitution, the

question of bar of maintainability of the Letters Patent Appeal do not arise

at all. Hence, the Office Object, as also the contention of the counsel for

the respondent in this regard is overruled.

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4. Insofar as the merit of the appeal is concerned, we have

noticed that the appellant had been appointed as night guard, way back in

the year 1985 and after 14 years he was saddled with the order that his

appointment was not as per the procedure adopted and, therefore, he was

removed from service. The appellant organization had failed to appear

before the learned Single Judge inspite of service of notice and, therefore,

it is not open for the appellant, at the stage of appeal, to straightaway

contend that the appointment of the respondent was a backdoor entry

without having availed the opportunity to establish that the appointment

was a backdoor entry.

5. In the circumstances, if the order of termination was set

aside, we find no reason to interfere with the same and, hence, we refrain

from quashing the order passed by learned Single Judge.

6. However, we have further noticed that the learned Single

Judge had been pleased to pass an order for reinstatement of the

respondent with all consequential benefits for which there was no material

available before the learned Single Judge to infer that the respondent

succeeded in making out a case in his favour and that he was entitled to all

consequential benefits also along with reinstatement.

7. The counsel for the appellant organization, on the other hand,

has submitted that the appellant organization was running into losses due

to which it was on the verge of closure. Finally the appellant

corporation has been entrusted to Birsa Agricultural University, which is

making an endeavour to revive this corporation. Learned counsel,

therefore, tried to impress upon this Court that the order of reinstatement

would be difficult to be carried out. However, we feel that the plea in

regard to financial constraint of the organization, in absence of any

evidence to that effect, would be hard to accept. Even if the organization

suffers from financial hardship, it can not get away from paying
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compensation in case the order of reinstatement could not be implemented

for any reason. The appellant organization, having never raised the issue

that the organization has been closed, so that the order of reinstatement

could not be implemented, cannot be accepted at the stage of appeal

specially when the plea of closure is refuted by the appellant. But, insofar

as the question of consequential benefits are concerned, we find that there

is complete lack of evidence in regard to the grant of consequential benefits

and the same has been granted by way of a blanket order, although the

respondent had failed to lead any evidence as to why his claim of

consequential benefits be sustained in absence of any evidence that he was

not gainfully employed during the period he was out of service.

8. Hence, the order impugned, insofar as the grant of

consequential benefit is concerned, stands quashed and set aside, but the

order of reinstatement shall remain intact. Thus, the appeal filed by the

appellant corporation stands partly allowed without any order as to costs.

( Gyan Sudha Misra, C.J. )

( D.K. Sinha, J. )
P.K.S./S.B./LAK