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2003 DIGILAW 177 (JHR)

Raj Kishore Roy v. State Of Jharkhand

2003-02-05

TAPEN SEN

body2003
ORDER Tapen Sen, J. 1. Reference in this case may be made to the order dated 4.2.2003 which reads as follows : "Heard Mr. J.P. Jha, learned counsel for the petitioner and Mr. Mahesh Kumar Sinha, Junior Counsel to the Additional Advocate General. Reference in this case may be made to the order dated 12.3.2002 by which this Court had observed that in spite of several adjournments no Counter Affidavit had been filed and therefore, this Court was constrained once again to give ten more days time to the State to file necessary affidavit and also observed that in the absence of Counter Affidavit being filed within the said period, the Writ Petition will proceed in its absence. Today when the case has been called out, this Court finds the same situation prevailing and complete apathy on the part of the State. There is no Counter Affidavit till date. Consequently this Court has no option but to close the right of the State to file Counter Affidavit. Let this case be listed under the heading For Orders tomorrow." 2. For the reasons aforesaid, this Application is now taken up and is being disposed off on the basis of pleadings made in this Writ Application. 3. Before proceeding to deliver order/judgment in this case, it would he relevant to mention that for the same relief, i.e. for quashing Annexure 18, i.e., order dated 13.4.2000, by which the petitioners services were terminated, the petitioner had filed CWJC No. 3904 of 2000 at Patna on 2.5.2000. It appears that after reorganisation of the State that case was transferred to Ranchi and in the meantime on account of said reorganisation the petitioner filed W.P. (S) No. 3000 of 2001 before this Court at Jharkhand. The other writ petition was filed on 11.7.2000. On 31.10.2002 Mr. J.P. Jha, learned counsel appearing for the petitioner brought this fact to the notice of this Court, as a result whereof on the said day it was ordered that CWJC No. 3904 of 2000 should be tagged along with W.P. (S) No. 3000 of 2001. It is thereafter that both these cases have now been listed before this Court. J.P. Jha, learned counsel appearing for the petitioner brought this fact to the notice of this Court, as a result whereof on the said day it was ordered that CWJC No. 3904 of 2000 should be tagged along with W.P. (S) No. 3000 of 2001. It is thereafter that both these cases have now been listed before this Court. The learned counsel for the petitioner however, argued exclusively on the basis of pleadings made in W.P. (S) No. 3000 of 2001 which has been filed here and prayed that in view of whatever order that is passed in this case, the other case should also be governed by the same. Consequently, W.P. (S) No. 3000 of 2001 and CWJC No. 3904 of 2000 are taken up together. 4. The petitioner is aggrieved by Annexure 18, i.e., the order dated 13.3.2000 by which his services have been terminated. The learned counsel for the petitioner states and submits that the impugned Annexure 18 has been passed on the basis of an earlier order dated 22.10.2000 (Annexure 17) which in its turn proceeds as if there was an order passed in CWJC No. 9993 of 1994. According to the petitioner, he being a matriculate typist and having been empanelled in the Sathal Pargana Col-lectorate for appointment of Class IV Post pursuant to a letter of the Personnel and Administration Department vide No. 16441 dated 3.12.1980, was recommended from the said panel vide a memo of the District Education Officer dated 18.11.1982 (Annexure 1) for appointment on a IVth Grade post in the office of the Block Education Extension Officer of Rajmahal. Subsequently, by office order dated 22.12.1982 (Annexure 2) the petitioner was regularly and in a lawful manner posted against a vacant Class IV post in the Zila School at Dumka. The petitioner has stated that there was some dispute with regard to his tenure but since his name had been recommended from the District Panel which was prepared by the District Commissioner, Dumka, he was not disturbed and was allowed to continue and he regularly received salary although his appointment was temporary. 5. In the meantime the office of the District Superintendent Education Officer of Sahebganj was created after bifurcation of Santhal Pargana and there was paucity of typists and clerks in the office of the District Superintendent Officer, Sahebganj. 5. In the meantime the office of the District Superintendent Education Officer of Sahebganj was created after bifurcation of Santhal Pargana and there was paucity of typists and clerks in the office of the District Superintendent Officer, Sahebganj. Since he was matriculate and had passed typing examination, the District Superintendent of Education, Sahebganj by his letter dated 14.10.1995 addressed to the Regional Deputy Director of Education, Bhagalpur recommended the appointment/promotion of the petitioner on the post of Steno- Typist in the internal quota and a copy thereof was endorsed (vide Annexure 3) to the Director, Primary Education. 6. Subsequently, the Regional Deputy Director, Bhagalpur by his letter dated 18.1.1986 directed the District Superinten dent of Education to supply the names of all the matriculate Class IV employees to fill up the existing vacancies in Class III posts. Consequently the District Superintendent of Education, Sahebganj by letter dated 7.2.1986 transmitted only one name, i.e., the name of the petitioner on account of the fact that he was the only matriculate IVth Grade employee having full knowledge of typing. In the said letter, however, it was made clear that there were 26 (twenty six) posts of clerks and 8 (eight) posts for Class IV employees which had been sanctioned and against the aforesaid sanctioned posts 20 (twenty) clerks were functioning and 6 (six) Class IV employees were also working and that there were 6 (six) posts of Clerks and 2 (two) posts of Class IV employees were still lying vacant. 7. On receipt of the aforementioned letter, the petitioner was instructed to appear before the Divisional Selection Committee, Santhal Pargana with his original certificate for verification. In the meantime the new Santhal Pargana Division was created with Sahebganj District. Thereafter the Divisional Selection Committee decided to transfer the petitioner from the Office of the District Superintendent of Education, Sahebganj to the Office of the District Education Officer, Sahebganj by Annexure 5. According to the petitioner, although he was a well versed typist and although he performed the duties of typist, yet he was paid the salary of Class IV posts. However, being fully satisfied with his work, the authorities requested the Regional Deputy Director by Annexure 6 to consider the case for appointment/promotion of the petitioner to Class III Post of Steno/Typist. However, being fully satisfied with his work, the authorities requested the Regional Deputy Director by Annexure 6 to consider the case for appointment/promotion of the petitioner to Class III Post of Steno/Typist. In the meantime the Regional Deputy Director of Education issued an order calling all; matriculates or persons holding equivalent degrees to appear for interview on 19.7.1987. Consequently, three persons including the petitioner appeared and thereafter on 5.10.1988 (Annexure 9) having been found fit, the petitioner was appointed on the vacant post of Clerk and copy of the said letter was sent to the Regional Deputy Director of Education, Dumka. In the meantime he had also enhanced his qualification. Thereafter on the recommendation of the Establishment Committee, he was sent to Nageshwar Kanya Uchch Vidyalaya, Bararwa by Annexure 11. Upon receipt of Annexure 11 the petitioner approached the Regional Deputy Director of Education, Dumka and submitted that the District Establishment Committee could not send him/transfer him to a post of District Cadre, particularly when he belonged to the Divisional Cadre. According to the pefitioner, the Regional Deputy Director of Education agreed and wrote to the District Superintendent of Education, Sahebganj and sent a copy thereof to the Director of Education by Annexure 12. 8. The petitioner has stated that for the aforementioned reasons, the Deputy Commissioner called a Special Meeting of the District Establishment Committee, Sahebganj on 3.9.1994 and only in order to teach the petitioner a lesson a resolution was taken to call for an explanation from him as to why he be not proceeded against departmentally. The resolution of the District Establishment Committee in Annexure 13 to the Writ Application. The petitioner has stated that the aforementioned resolution dated 3.9.1994 as contained at Annexure 13 was challenged by the petitioner at Patna vide CWJC No. 9993 of 1994 and by an order dated 16.2.1995 the said Court issued notice and directed that in the meantime the operation of Resolution dated 3.9.1994 (Annexure 13) shall remain stayed and that the respondent should pay month to month salary to the petitioner. However, it was observed that the order would not mean that it was a decision on the point as to who would the disciplinary authority in respect of the petitioner. The aforementioned writ petition was subsequently disposed off on 3.11.1995. However, it was observed that the order would not mean that it was a decision on the point as to who would the disciplinary authority in respect of the petitioner. The aforementioned writ petition was subsequently disposed off on 3.11.1995. The entire order sheet of the aforementioned case has been brought on record by the petitioner vide Annexure 14. 9. It appears that after the aforementioned order had been passed, a letter was sent by a Government counsel to the authorities and it seems that while referring to the aforementioned case, i.e., CWJC No. 9993 of 1994, it was incorrectly stated that the modification petition had been dismissed and the authority had been directed to examine the matter relating to appointment of the petitioner and if it was found to be unsatisfactory then to initiate departmental proceeding against him. A copy of the said letter has been brought on record vide Annexure 15 to the writ application. I have carefully gone through the order dated 24.5.1995 and I find that neither the petition was dismissed nor was the authority concerned directed to act as per the advice given by the said Law Officer of the State vide Annexure 15. On the contrary, it was observed that the order dated 16.2.1995 was subsequently clarified on 15.3.1995 specifically observing that the order dated 16.2.1995 was very clear and it needed no clarification. The order dated 16.2.1995 is order No. 3 of Annexure 14 and that also does not say what the Law Officer stated in Annexure 15. In that view of the matter action on the part of the Respondents in referring to CWJC No. 9993 of 1994 at Annexures 17 and 18 and proceeding on the assumption as if the order passed therein directed the respondents to proceed and dismiss/terminate the petitioner is held to be a total non-application of mind. Consequently, An-nexure 18, i.e., order dated 13.3.2000 terminating the services of the petitioner purporting to be as if it is pursuant to the directions made in CWJC No. 9993 of 1994 is held to be uncalled for and accordingly quashed and set aside. Consequently, An-nexure 18, i.e., order dated 13.3.2000 terminating the services of the petitioner purporting to be as if it is pursuant to the directions made in CWJC No. 9993 of 1994 is held to be uncalled for and accordingly quashed and set aside. The matter therefore, stands remanded to the authorities who if they so desire and if they so like would deal with the matter afresh strictly in accordance with law and strictly in accordance with the procedure in relation to holding of departmental proceeding after taking into consideration very carefully the observations made in CWJC No. 9993 of 1994 (Annexure 14). 10. The writ petition is allowed, to that extent. However, there shall be no order as to costs.