{"id":41364,"date":"2009-12-22T00:00:00","date_gmt":"2009-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prashanna-kumar-jha-vs-state-of-jharkhand-ors-on-22-december-2009"},"modified":"2017-07-08T15:33:57","modified_gmt":"2017-07-08T10:03:57","slug":"prashanna-kumar-jha-vs-state-of-jharkhand-ors-on-22-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prashanna-kumar-jha-vs-state-of-jharkhand-ors-on-22-december-2009","title":{"rendered":"Prashanna Kumar Jha vs State Of Jharkhand & Ors on 22 December, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Prashanna Kumar Jha vs State Of Jharkhand & Ors on 22 December, 2009<\/div>\n
                                                 1\n                                                                           W.P.(S) NO. 3071 OF 2003\n\n\n\n\n                       IN THE HIGH COURT OF JHARKHAND AT RANCHI\n\n                         WRIT PETITION (SERVICE) NO. 3071 OF 2003\n\n            Prashanna Kumar Jha                                     ... ... Petitioner\n                                            - VERSUS -\n            1. The State of Jharkhand\n            2. Deputy Secretary, Water Resources Department, Government of\n               Jharkhand, Ranchi.\n            3. The Commissioner, Water Resources Department, Government of\n               Jharkhand, Ranchi.\n            4. The Joint Secretary, Water Resources Department, Government of\n               Jharkhand, Ranchi.\n            5. The Rehabilitation Officer, Medium Irrigation Project, Namkom, Ranchi\n            6. The State of Bihar.\n                                                                        ... Respondents\n\n                 CORAM: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY\n\n                 For the Petitioner:        Mr. Saurav Arun, Advocate.\n                 For the Respondents:       Mr. Manoj Tandon, S.C. - II.\n\n\n\n                 C.A.V. On 14\/09\/2009                 PRONOUNCED ON 22\/12\/2009\n\nAmareshwar Sahay, J.          Heard the parties.\n\n\n            2.                The prayer of the petitioner in this writ petition is to\n                 quash the office order contained in Memo No. 3342, dated\n                 06.09.1997<\/pre>\n
 (Annexure-7) passed by the Director, Land Acquisition,
\n                 Rehabilitation and Water Resources Department, by which, the
\n                 service of the petitioner was terminated on the ground that the
\n                 Rehabilitation Officer had no jurisdiction\/ authority to appoint the
\n                 petitioner   to   the   post   of   Chainman     and,      therefore,         his
\n                 appointment was illegal.\n<\/p>\n
            3.                The case of the petitioner is that he was initially
\n                 engaged as a Daily Wage Employee in Class – IV as Chainman by
\n                 the Deputy Collector in the Land Acquisition and Rehabilitation
\n                 Department. He was working in the Land Acquisition Office at
\n                 Muzzaffarpur. All of a sudden, vide Memo No. 51, dated 15.09.1988
\n                 (Annexure-1), he was removed from the service with immediate
\n                 effect on the ground that his service was not required. In this
\n                 manner, 62 persons were removed from the service.\n<\/p>\n
            4.                It is stated that the petitioner was subsequently
\n                 appointed on the vacant post of Chainman (Class – IV) by issue of
\n                 Office Order dated 29.07.1989 as contained in Annexure-3, on the
\n                                      2<\/span>
\n                                                            W.P.(S) NO. 3071 OF 2003<\/p>\n
     basis of the fact that his services was found satisfactory on daily
\n     wage basis.\n<\/p>\n
                   By issue of office Order No. 2113 dated 09.06.1994, a
\n     notice was served on the petitioner asking him to file show-cause
\n     as to why his services be not terminated with immediate effect.
\n     The petitioner filed his show-cause.\n<\/p>\n
5.                 Several persons, similarly situated, filed several Writ
\n     Petitions in the High Court being C.W.J.C. No. 6880 of 1994, 6338 of
\n     1994, 5731 of 1994 and 5829 of 1994 challenging such notices.
\n     After filing of the Writ Petitions, the respondents did not remove the
\n     petitioner from service rather, by filing counter affidavits in the writ
\n     petitions, it was stated that those persons were not going to be
\n     removed and separate individual notices would be served on
\n     them. On this basis, the writ petitions were allowed to be
\n     withdrawn with liberty to the writ petitioners to move before the
\n     appropriate forum if any final order is passed.\n<\/p>\n
6.                 A notice was published in the News Paper on
\n     07.10.1996 asking several employees including the petitioner to file
\n     show-cause as to why their services should not be terminated as
\n     their appointments were made by the Rehabilitation Officer, who
\n     was not empowered to make such appointment.\n<\/p>\n
                   The petitioner filed his show-cause stating therein that
\n     he was appointed by the Establishment Committee which is a
\n     Statutory Committee to make appointment and the same was
\n     communicated by the Director (Respondent No. 3), who was also
\n     empowered to make appointment in Class – IV being head of the
\n     Department. Thereafter, by issue of Annexure-7, dated 06.09.1997,
\n     the service of the petitioner was terminated.\n<\/p>\n
7.                 The grievance of the petitioner is that before issuance
\n     of impugned order of termination dated 06.09.1997 (Annexure-7),
\n     no hearing was given to him and the order has been passed in
\n     violation of Articles 14, 16, 21 and 300 of the Constitution of India.\n<\/p>\n
                   According to the petitioner, CWJC No. 3345 of 1997
\n     and other analogus cases were filed by several persons before the
\n     Patna High Court challenging the order of their termination on the
\n     same ground that the Rehabilitation Officer had no authority and
\n     jurisdiction to make such appointment. The Patna High Court, by
\n     Judgment dated 01.03.2000, quashed the termination orders and
\n                                         3<\/span>
\n                                                           W.P.(S) NO. 3071 OF 2003<\/p>\n
     directed the respondents to consider the matter of regularization
\n     of service of such petitioners in accordance with law within a
\n     period of six months from the date of said order.\n<\/p>\n
                  The petitioner submits that his case is squarely
\n     covered by decision of the Patna High Court dated 01.03.2000
\n     passed in CWJC No. 3345 of 1997 which has been annexed as
\n     Annexure-9 to this Writ Petition. It is further submitted that similar
\n     Writ Petitions being CWJC No. 1452 of 2001 and CWJC No. 770 of
\n     2001 were filed before the Patna High Court challenging the similar
\n     termination orders and in those Writ Petitions.\n<\/p>\n
                  The Orders of termination were quashed. The orders
\n     passed in aforesaid Writ Petitions has been annexed as Annexures-
\n     10 and 11 to this Writ Petition.\n<\/p>\n
                  It is also stated that Letters Patent Appeal filed against
\n     the aforesaid orders have also been dismissed by the Division
\n     Bench. It is further submitted by the petitioner that since the
\n     petitioner was appointed by the Director, Land Acquisition
\n     Department, having power of appointment and, therefore, his
\n     appointment cannot be said to have been made by incompetent
\n     person.\n<\/p>\n
8.                On the other hand, a counter affidavit has been filed
\n     by the respondent nos. to 5 stating therein that the petitioner was
\n     a Chainman working in the office of Irrigation, Medium Irrigation
\n     Projection, whose service was terminated by the Order of the
\n     Director, Land Acquisition and Rehabilitation dated 06.09.1997
\n     (Annexure-7 to the Writ Petition). It is further stated that similarly
\n     situated persons preferred Writ Petition being CWJC No. 3345 of
\n     1997 and other analogous cases, which was heard and disposed
\n     of by common Judgment dated 01.03.2000 (Annexure-9 to the
\n     Writ Petition), where the Patna High Court, after categorizing all
\n     the cases into the three categories – A, B and C, was pleased to
\n     quash the impugned orders of termination of the petitioners of
\n     category A and C but dismissed the Writ Petitions of Category-B.
\n     With regard to the persons falling under Category-A, the High
\n     Court gave liberty to the respondents to re-examine the matter
\n     afresh and regarding the persons falling under Category – C,
\n     directed the respondents to consider the matter of regularization
\n     of service of such petitioners.\n<\/p>\n
                                        4<\/span><\/p>\n
                                                            W.P.(S) NO. 3071 OF 2003<\/p>\n
                      It is further stated that against the order passed in
\n      CWJC No. 3345 of 1997 and analogous cases, a Letters Patent
\n      Appeal were filed being LPA No. 675 of 2000, 678 of 2000 and
\n      analogous cases and by Judgment contained in Annexure-A, the
\n      Division Bench set aside the Judgment passed by the learned
\n      Single Judge in the aforesaid Writ Petition CWJC No. 3345 of 1997
\n      and analogous cases.\n<\/p>\n
9.                    A separate counter affidavit has been filed by the
\n      Respondent No. 6 – State of Bihar controverting the stand taken by
\n      the petitioner. It is stated in the said counter affidavit that the
\n      Rehabilitation Officer was never authorized to appoint any
\n      Government servant and, therefore, since the appointment of the
\n      petitioner was made by Rehabilitation Officer and, therefore, the
\n      same was void-ab-initio and illegal and he cannot claim himself to
\n      be a retrenched staff. It is also stated that a similarly situated
\n      person filed CWJC No. 2848 of 1998 (R) – Bhikhari Baitha Vs. State
\n      of Bihar, before this Court, which was dismissed and the case of
\n      the petitioner stands on the similar footing. By annexing Judgment
\n      of the Division Bench, passed in L.P.A. No. 693 of 2000 with
\n      analogous cases, it is stated that the L.P.A. filed by the employees
\n      were dismissed whereas, the appeals filed by the State of Bihar
\n      were allowed by Judgment dated 29.01.2003 wherein, it was held
\n      that appointment were made in violation of the Article 16 of the
\n      Constitution of India and Recruitment Rules and Procedures
\n      provided therein. It was directed that such categories of illegal
\n      appointed employees be terminated by the Department at a
\n      short notice.\n<\/p>\n
10.                   Mr. Saurav Arun, learned counsel appearing for the
\n      petitioner, relying on a decision of this Court in the case of Ram
\n      Pravesh Kumar (Mapak) Vs. The State of Jharkhand and others
\n      reported in 2004(2) JLJR 152, submitted that in this case, it was held
\n      that the    termination     of   the service   on   the ground that
\n      Rehabilitation Officer, who had appointed the Writ Petition, had
\n      no jurisdiction to make such appointment, has been held to be not
\n      sustainable in view of the fact that the Director, who was having
\n      the authority to make such appointment, had a tacit approval.\n<\/p>\n
                      Learned counsel further relied on a decision of
\n      another decision of the Single Bench of this Court in the case of
\n                                       5<\/span>
\n                                                             W.P.(S) NO. 3071 OF 2003<\/p>\n
      Gopal Singh Vs. State of Jharkhand and others reported in 2005
\n      (4) JLJR 614.\n<\/p>\n
11.                   On the other hand, Mr. Manoj Tondan, learned S.C.-II,
\n      appearing for the State submitted that the writ petitioner
\n      suppressed the fact that the Judgment and order passed in
\n      C.W.J.C. No. 3348 of 1997 and analogous cases contained in
\n      Annexure-9, passed by the Single Judge of the Patna High Court
\n      was subsequently set aside by the Division Bench of Patna High
\n      Court vide order dated 29.01.2003 in L.P.A. No. 675 of 2000 with
\n      analogous Appeals. The Judgment of the Division Bench of the
\n      Patna High Court in the aforesaid L.P.As. were not brought to the
\n      notice of this Court while deciding the writ petition of Ram Pravesh
\n      Kumar (Mapak) in W.P.S. No. 1110 of 2002 disposed of on
\n      22.03.2004. The       Judgment of the Division Bench has been
\n      annexed with the Counter Affidavit filed by the Respondent Nos. 2
\n      to 5 as also with the counter affidavit of the Respondent No. 6 and
\n      the same is reported in 2003(2) PLJR 27 (D.B.).\n<\/p>\n
12.                   After going through the aforesaid Judgment of the
\n      Division Bench of Patna High Court reported in 2003(2) PLJR 27
\n      (D.B.), it appears that the Division Bench, in paragraph – 12 of the
\n      Judgment, formulated the questions to be decided in all those
\n      appeals as to whether the initial entry of the writ petitioners or their
\n      initial appointment were in accordance with law or not?\n<\/p>\n
                      The Division Bench noticed the fact that the learned
\n      Single Judge had observed in his order that the initial entry of all
\n      the Writ Petitioners was bad but further observed that in Category\n<\/p>\n
      – ‘A’ cases, the State did not apply its mind because the
\n      petitioners of all those four writ petitioners were possessing the
\n      orders of appointment. In the cases falling under the Category –
\n      ‘C’, the learned Single Judge observed that the appointments
\n      were made by Rehabilitation Officer but the said Officer was not
\n      authorized to issue the appointment orders. However, in some of
\n      the letters of appointments, it contained the statements that the
\n      appointments were made on temporary\/ adhoc basis as per the
\n      order of the Director. The learned Single Judge also observed that
\n      the initial appointments were issued with specific approval by the
\n      competent authority or the Director General approved the said
\n      appointment by extending the period of appointment, pursuant to
\n                                       6<\/span>
\n                                                           W.P.(S) NO. 3071 OF 2003<\/p>\n
      which, the petitioners in those cases continued in service for a long
\n      period.\n<\/p>\n
13.                The Division Bench, on consideration of entire facts
\n      and after discussing a number of Judgments, set aside the
\n      Judgment of the learned Single Judge passed in the aforesaid
\n      Batch of Writ Petitions. The Division Bench has held that in the
\n      administrative area, oral approvals for confirmation have no legs
\n      to stand. When an order of appointment is to be issued by a
\n      competent officer, then he is not competent to issue such an oral
\n      order. The State cannot be asked to produce such an order
\n      specially in a case where it has come out with a specific plea that
\n      neither there was an approval nor a consent. In the administrative
\n      field, there is nothing like a tacit order indirect or half hearted
\n      consent. Even if under the cover of protection of extension order,
\n      the petitioner continued in service but they were not treated as
\n      duly appointed temporary employees. When the appointment
\n      were admittedly illegal, bad and contrary to the settled norms
\n      then any plea by anybody that it was with the approval or an
\n      assumed tacit approval would not better the case of the
\n      respondents.\n<\/p>\n
                   The   Divisional   Bench   further   held   that     if   the
\n      appointment itself is in infraction of the Rule or in violation of the
\n      provisions of the Constitution, such an illegal cannot be cured nor
\n      the services can be regularized. There would not arise any
\n      occasion for regularizing the appointment of an employee whose
\n      initial entry itself is tainted and is in total breach of requisite
\n      procedure of recruitment.\n<\/p>\n
                   An illegal stay in service howsoever long would not
\n      make the same legal. Long stay of an incumbent in an
\n      establishment\/ office would not make his stay justifiable. Any
\n      protection in the name of stopper or mercy would be adding
\n      premium to illegality and would be in violation of principles of
\n      justice, fair play and good conscience.\n<\/p>\n
14.                From the orders passed by this Court in W.P.(S) No.
\n      1110 of 2002 [Ram Pravesh Kumar (Mapak)], it appears that while
\n      deciding the said Writ Petition, the Judgment passed in C.W.J.C.
\n      No. 3348 of 1997, passed by Single Bench of the Patna High Court
\n      was relied by this Bench. The Judgment passed by the Division
\n                                             7<\/span>
\n                                                                   W.P.(S) NO. 3071 OF 2003<\/p>\n
            Bench of the Patna High Court setting aside the orders passed in
\n            C.W.J.C. No. 3348 of 1997 was not brought to the notice of this
\n            Court. Since the said Writ Petition No. 1110 of 2002 was decided
\n            only on the basis of the Judgment passed by the Single Bench of
\n            the Patna High Court in C.W.J.C. No. 3348 of 1997 and, therefore,
\n            the same would be of no help to the petitioner since the order of
\n            the Single Judge of Patna High Court in C.W.J.C. No. 3348 of 1997
\n            was overruled by the Division Bench and this fact was not brought
\n            to the notice of this Court while deciding the said writ petition.\n<\/p>\n
                         Moreover, in the said case, the writ petitioner was
\n            subsequently promoted to the post of ‘Amin’ by the Director and,
\n            therefore, in such a situation, it was held that the Director had the
\n            tacit approval of appointment of the writ petition whereas, in the
\n            present case, there is no such fact and, therefore, on this ground
\n            also, the order passed in the case of Ram Pravesh Kumar (Supra)
\n            does not help the present petitioner.\n<\/p>\n
      15.                Same is the fate of the orders and Judgment passed
\n            in other Writ Petitions either of this Court or of the Patna High Court,
\n            which was either passed prior to the Judgment passed by the
\n            Division Bench on 29.01.2003 or even thereafter, without noticing
\n            the said Judgment of the Division Bench of Patna High Court in the
\n            aforesaid Letters Patent Appeal.\n<\/p>\n
      16.                This Writ Petition is fully covered by the Judgment\/
\n            Order passed by Division Bench of the Patna High Court in L.P.A.
\n            No. 675 of 2000 and analogous cases on 29.01.1993 reported in
\n            2003(2) PLJR 27 (D.B.). Accordingly, I hold that the petitioner is not
\n            entitled to any relief as claimed by him.\n<\/p>\n
      17.                For the reasons stated above, I do not find any merit
\n            in this writ petition.   Consequently, this writ petition is hereby
\n            dismissed. However, in the facts and circumstances there shall be
\n            no order as to costs.\n<\/p>\n
                                                     (Amareshwar Sahay, J)
\nRC\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Prashanna Kumar Jha vs State Of Jharkhand & Ors on 22 December, 2009 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-41364","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nPrashanna Kumar Jha vs State Of Jharkhand & Ors on 22 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/prashanna-kumar-jha-vs-state-of-jharkhand-ors-on-22-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prashanna Kumar Jha vs State Of Jharkhand & Ors on 22 December, 2009 - 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