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