IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5885 of 2010
with
W.P.(S) No. 4332 of 2010
with
W.P.(S) No. 6167 of 2010
with
W.P.(S) No. 6672 of 2010
Radha Prem Kishore ... ... ... Petitioner [In W.P.(S) No. 5885/2010]
Ravi Kumar Kujur ... ... ... Petitioner [In W.P.(S) No. 4332/2010]
Prashant Kumar Layak ... ... ... Petitioner [In W.P.(S) No. 6167/2010]
Prakash Kumar ... ... ... Petitioner [In W.P.(S) No. 6672/2010]
Versus
State of Jharkhand through the Chief Secretary,
Ranchi & Ors. ... ... Respondents[In W.P.(S) No. 5885/2010]
State of Jharkhand & Ors. ... ... Respondents[In W.P.(S) No. 4332/2010]
State of Jharkhand through the Chief Secretary,
Ranchi & Ors. ... ... Respondents[In W.P.(S) No. 6167/2010]
State of Jharkhand through the Chief Secretary,
Ranchi & Anr. ... ... ... Respondents[In W.P.(S) No. 6672/2010]
CORAM: HON'BLE MRS. JUSTICE POONAM SRIVASTAV
For the Petitioners : M/s Binod Kanth, Dr. S.N. Pathak, Sr. Advocates,
Amit Sinha, Prashant Pallav, Neeta Krishna,
N.K. Pandey, Ashutosh Kumar, Alok Kumar
For the RespondentState : M/s D.K. Dubey, G.P. I, Neelam Tiwary, J.C. to G.P. I
For the J.P.S.C. : Mr. Sanjay Piprawall, Advocate
04/08.07.2011
Counsel for the petitioner has requested at the outset that the names of
Respondent Nos. 7 and 8 in W.P.(S) No. 4332 of 2010 be deleted from the cause
title.
He is permitted to do so.
Since all these four writ petitions involve a common question for decision by
this Court, they are being decided by a common judgment.
Prayer in these writ petitions is for quashing the order dated 10.08.2010
passed by Principal Secretary, Department of Home, Government of Jharkhand,
Ranchi, terminating the petitioners while they were still on probation and continuing
with their training after their selection for the services of the Deputy Collector and
Dy.S.P. conducted by the J.P.S.C.
The petitioner in W.P.(S) No. 4332 of 2010 had though completed the period
of probation, but his services were also terminated along with the other employees
by an identical order. The order of termination simpliciter mentioned that the State
of Jharkhand does not require their services any further.
Grievance of all the petitioners is that they appeared in the competitive exam
conducted by the J.P.S.C. The petitioners qualified in the Preliminary Test (P.T.)
and also in the final written examination, and thereafter they appeared for Interview
and finally they were selected. Final result was published after their Medical
Examination. The petitioners were sent for training for a period of two years. This
probation period was completed by some of the petitioners and the others were
almost on the verge of completion. The termination order was passed by the
respondents without assigning any reason and also without issuance of notice.
I have heard Sr. Advocate, Mr. Binod Kanth assisted by Mr. Prashant Pallav,
Advocate and also Sr. Advocate, Dr. S.N. Pathak.
The first submission is that in a similar case of one candidate Mukesh Kumar
Mahto, who was also terminated by an identical order dated 10.08.2010, had
challenged the said order in Writ Petition being W.P.(S) No. 6262 of 2010. The said
writ petition was allowed vide order dated 28.06.2011 and the order of termination
was quashed. Learned counsel has placed the order in support of his contention that
while allowing the writ petition, this Court held that since no enquiry was
conducted, neither any show cause was issued, the impugned order of termination
was without affording a reasonable opportunity of hearing and thus, opposed to the
principles of Audi Alteram Partem and also without following the procedure of law.
The submission is that the case of all the petitioners stand on equal footing
and, therefore, the termination order is rendered opposed to the principles of natural
justice.
Senior Advocate has further argued and placed reliance on a decision in the
case of Union of India & Ors. Vs. Mahaveer C. Singhvi reported in (2010) 8 SCC 220.
This decision relates to the termination of an Officer, who was appointed after being
selected by the U.P.S.C. and was undergoing training for Indian Foreign Service, but
during the period of probation, he was issued an order of termination. The emphasis
is on paragraphs 22 and 23 of the said decision which are quoted below:
22. “The High court by the impugned judgment dated 29.09.2008,
accordingly quashed the Order of discharge of the respondent from the
Indian Foreign Service dated 13.06.2002, along with the orders passed by
the Tribunal on 04.09.2003 dismissing the respondent’s OA No. 2038 of
2002 and on 14.11.2003 rejecting the respondent’s Review Application
No. 323 of 2003, with a direction to reinstate the respondent in the
Indian Foreign Service cadre of the 1999 batch, along with all
consequential benefits, including consequential seniority, within a month
from the date of the order”.
23. “In allowing the writ petition filed by the respondent, the High
Court referred to relied on the decision of this Court in Radhey Shyam
Gupta Vs. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21]
wherein this Court had held that in cases where termination is preceded
by an enquiry, evidence is received and findings as to misconduct of a
definite nature are arrived at behind the back of the officer and where on
the basis of such a report the termination is issued, such an order would
be violative of the principles of natural justice”.
The Delhi High Court in its judgment had quashed the order of discharge from
the Indian Foreign Service and had also passed the order for his reinstatement,
rejecting the contention raised on behalf of the Union of India. The High Court while
passing the order has placed reliance on several decisions of the Apex Court, Radhey
Shyam Gupta Vs. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] and
Samsher Singh Vs. State of Punjab [(1974) 2 SCC 831] as well as in the case of Anoop
Jaiswal Vs. Government of India & Anr. [(1984) 2 SCC 369]. The Apex Court while
dismissing the SLP on behalf of the Union of India upheld the decision of the High
Court in totality and declined to interfere.
Counsel appearing on behalf of the State has vehemently argued and tried to
place certain materials on record to substantiate that the decision of the respondent
is well founded and there are materials to support the contention and suspicion of
the Government that malpractice was adhered to and certain other means were
adopted to achieve the purpose and got selected in the examination. The allegations
have been levelled for the first time in the counter affidavit and it is contended on
behalf of the State that these petitioners are an accused in the criminal case which
was registered after these bunglings came to light. The allegation in the F.I.R. is that
the accused indulged in manipulation and interpolation in the marks as well as in
the examination sheets. This was thoroughly scrutinised after receipt of complaint
and, therefore, evidently, their selection is anything but on merit. The petitioners
influenced certain officers of the Public Service Commission as well, who are also
accused along with the petitioners. The objections on behalf of the State is that the
the petitioners are not entitled to be reinstated in service despite the fact that an
order in an identical writ petition being W.P.(S) No. 6262 of 2010 setting aside the
termination order. Counsel appearing on behalf of the State has vehemently opposed
the directions for petitioners’ reinstatement though he has admitted that the
termination order was passed against the principles of natural justice.
After hearing respective counsel at length and going through the decisions, it
is apparent that the petitioners, who had submitted to the process of selection by
appearing in the Preliminary Test (P.T.) as well as in the final examination and also
in the Interview, were declared as selected candidates and they had undergone
approximately two years of training but just before five days of their completion of
probation period, they have been served with the termination order and, therefore,
the order is liable not only to be quashed, but the petitioners are also entitled for his
reinstatement, as the order of termination is clearly violative of Article 311(2) of the
Constitution of India. The Constitution postulates that no person can be subjected to
any action at the instance of the Government without affording an opportunity to
such Government employee and also without apprising him of the grounds and
reasons for which he is being subjected to punishment, which has been done in the
instant case. Probationers like a temporary servant are also entitled to certain
protection and their services cannot be terminated in a punitive manner without
complying with the principles laid down in the Constitution upheld by the various
High Courts as well as Apex Court.
It is also brought to my notice that in the criminal proceeding an F.I.R. was
lodged, investigation is still going on and till date the investigation has not been
completed, therefore, I am of the view investigation will culminate only after
submission of a police report under Section 173 Cr.P.C., therefore, it is not known as
to how long the criminal proceeding will continue.
However, in the facts and circumstances, I am of the considered view that the
petitioners who have completed their probation period or about to complete their
probation period, are entitled to be permitted to join on the posts on which they
were working, till they are duly served with a show cause notice and given an
opportunity of hearing.
It is made clear that the joining of these petitioners will be subject to the final
decision in the enquiry proceeding, in the event the Government decides to hold an
enquiry.
With the aforesaid observations/directions, these writ petitions stand allowed.
Manish (Poonam Srivastav, J.)