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2003 DIGILAW 324 (JHR)

Sadanand Thakur v. State Of Jharkhand

2003-03-10

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard Mr. Ambar Nath Banerjee, learned counsel for the petitioner and Mr. Suresh Kumar, learned Junior Counsel to the Additional Advocate General for the State-respondent. 2. The petitioner is aggrieved by the order dated 27.05.2000 passed by the Regional Deputy Director of Education, Santhal Pargana, Dumka, by reason whereof his services have been terminated. The petitioner submits, that upon setting aside and quashing, by issuance of a Writ of certiorari, the aforementioned consequential reliefs such as reinstatement, regularity and other benefits be given to him which, in normal course, would have ensured in his favour had not been terminated from service. 3. The short facts which necessarily draws attention of this Court for purposes of adjudication hereof are that pursuant to an advertisement issued in the year 1988, albeit on the notice Board of the Office of the Sub Divisional Educational Officer, Pakur, for purposes of appointment to the post of clerks on temporary basis, the petitioner having come to know about it, applied. As a consequence thereof, he was subsequently appointed on 20.01.1989 by Annexure-2 on the basis of an Office Order issued under the signature of the District Education Officer, Sahebganj. 4. The learned counsel for the respondents, here at this stage, begs leave to point out that this is the gross irregularity that was committed inasmuch as a mere notice on the Notice Board could not be said to be a proper advertisement and therefore consequential appointment on the basis thereof was illegal. 5. The aforesaid objection of the learned counsel for the respondents is rejected at the threshold, especially, on account of Annexure-3 which is an Office Order issued subsequent to the appointment, i.e., on 06.11.1990. 6. The aforementioned Office Order dated 06.11.1990 is an important document and it shows that it was issued from the office of the Regional Deputy Director of Education, Santhal Pargana under his signature and it also, clearly and in unequivocal terms, informs to the world at large that on the basis of the decision taken by the Divisional Establishment Committee, the services of the petitioner was being transferred to the Teachers Training College at Ghormara, Deoghar. 7. 7. This is a document that proves that even if the appointment had been made by the District Education Officer, Sahebganj, yet upon issuance of Annexure-3 it must be deemed that his appointment received valid recognition at the hands of the Divisional Establishment Committee as a result whereof the Regional Deputy Director of Education issued the order of transfer. 8. This Court shall not pause here in the matter relating to adjudication of this case only on the aforementioned solitary point. Other factual aspects involved in this case also point to various other factors which all go to show that the petitioner has been dealt with in a very unfair manner. 9. On 22.11.1990, as a sequel to Annexure-3, the petitioner gave his joining in the aforementioned Teachers Training College. Let it be recorded that even at the time of joining, as has been stated by Mr. Ambar Nath Banerjee, the petitioner was a duly qualified person having obtained a Degree of Bachelor of Science. Mr. Banerjee makes this submission on the basis of statements made in paragraph 8 of the writ application. 10. Thereafter the Petitioners Service Book came to be opened and as a natural corollary thereof, a Provident Fund Account was also duly allotted and money deposited. Premium towards Insurance was also deducted each month from his salary and the Department also awarded increments to the petitioner. In fact, as stated at paragraph 10 of the Writ Application, the Petitioners services also stood confirmed. However, this part of the statement has been denied by the respondent at paragraph 10 of the counter affidavit. 11. In the meantime, the services of 3(three) other Assistants, namely, Om Prakash Mandal, Jai Prakash Sinha and Kaityanand Mandal were terminated. Feeling aggrieved, these three Assistants moved the Patna High Court vide C.W.J.C. No. 4278 of 1994. One of the points raised by them was discrimination, vis-a-vis, this petitioner also, inasmuch as, according to them, the respondents had terminated their services while they had allowed others including the petitioners to continue. Feeling aggrieved, these three Assistants moved the Patna High Court vide C.W.J.C. No. 4278 of 1994. One of the points raised by them was discrimination, vis-a-vis, this petitioner also, inasmuch as, according to them, the respondents had terminated their services while they had allowed others including the petitioners to continue. That writ application was disposed off on 11.08.1996 by the said Patna High Court vide Annexure-4 by only stating that if it was found that persons concerned have been allowed to draw their salaries, then it would be open for those petitioners to bring that fact to the notice of the Court whereupon the Court would initiate Contempt Proceeding against the Director, Secondary Education. 12. Thereafter, it appears that on 03.04.1997, the Deputy Director, Secondary Education, Government of Bihar wrote to the Regional Deputy Director of Education, Santhal Pargana, Dumka and directed that persons mentioned in paragraph 27 of, C.W.J.C. No. 4278 of 1994 should accordingly be dealt with and appropriate action should be taken against them. As a result of the aforementioned letter being issued from the Office of the Deputy Director, Secondary Education, Government of Bihar, the Regional Deputy Director by his letter dated 14.04.1997 issued a letter to various persons including the petitioners directing that they should present themselves, before the concerned Office on 22.04.1997, along with other papers relating to their appointment and service. This letter was issued on 14.4.1997. But before the date on which they were required to present themselves, i.e., 22.4.1997, the Regional Deputy Director of Education, Santhal Pargana hurriedly issued a letter immediately on the next date, i.e. 15.04.1997, wherein while referring to C.W.J.C. No. 4278 of 1994, he proceeded to terminate the services of the petitioner along with 5 (five) others non-teaching staff. This Court hastens to add that the order of the Patna High Court passed in C.W.J.C. No. 4278 of 1994 merely stated as follows :-- "The Director, Secondary Education has filed second supplementary counter affidavit dated 30.8.1996 stating in the light of the previous order, that none of the persons mentioned in paragraphs 24 to 26 of the writ petition is continuing on the post and/or getting salary. Mr. Rajendra Pd. Singh, learned counsel for the petitioners stated that the Director should in all fairness have filed orders by which services of the persons concerned were terminated. Mr. Rajendra Pd. Singh, learned counsel for the petitioners stated that the Director should in all fairness have filed orders by which services of the persons concerned were terminated. In view of the specific statements made in paragraphs 5 to 8 of the second supplementary counter affidavit aforesaid, I do not think keeping this case pending and directing the Director, Secondary Education to produce copy of removal/termination orders will have useful purpose. If it is found that the persons concerned have been allowed to draw their salary it will open to the petitioners to bring this fact to the notice of the Court, in that event this Court will initiate contempt proceeding against Shri Aditya Swaroop Sharma, Director, Secondary Education. The petition stands disposed of. 13. Being aggrieved the petitioner, independently moved and filed C.W.J.C. No. 4918 of 1997 before the Patna High Court and by order dated 13.08.1997 (Annexure-8), the order of termination was quashed in so far as the petitioner was concerned without going into the merits of the case and the Regional Deputy Director of Education was directed to allow the petitioner to produce his records on any subsequent date fixed by him. 14. Thereafter on 10.09.1997, the Regional Deputy Director of Education issued notice to the petitioner by Annexure-9 asking him to appear on 29.09.1997 along with necessary papers. The petitioner has stated at paragraph 20 that after he received the aforementioned notice he appeared and produced all the necessary documents which were seen by the respondents and they were fully satisfied and thereafter and upon being so satisfied they reinstated the petitioner by order dated 29.19.1997 (Annexure-10). The statements made in paragraph 20 of the writ application have, however, not been replied to and the respondents have just stated at paragraph 16 of their counter affidavit that this paragraph does not need any comment. In that view of the matter, the statement made by the petitioner to the effect that the petitioner appeared on the due date; the respondents saw all the documents; they were satisfied; and therefore they passed the order dated 29.10.1997 asking the petitioner to continue in service cannot be doubted because the respondents have stated that these statements need no comments. 15. Subsequently on 12.01.1999, the Regional Deputy Director of Education also passed an order by Annexure-11 directing release of salary etc. 16. However, Mr. 15. Subsequently on 12.01.1999, the Regional Deputy Director of Education also passed an order by Annexure-11 directing release of salary etc. 16. However, Mr. Suresh Kumar, learned Junior Counsel to the Additional Advocate General, learned counsel for the respondents, submits that a perusal of Annexure-10 and 11 would show that the Regional Deputy Director of Education has passed these orders exclusively on account of the order passed in C.W.J.C. No. 4918 of 1997. It is true that the language of the orders as contained at Annexures-10 and 11 show that they were being passed on the basis of the order passed in the Writ Application, but it does not destroy the statement made by the petitioner to the effect that he appeared, showed all documents and that the respondents were satisfied on seeing them. 17. After all this had happened and after allowing the petitioner to work again for about 1 (one) year, the respondent Regional Deputy Director of Education issued memo No. 782 dated 24.12.1999 (Annexure-12) alleging violation of Rule 74 of the Cadre Rules and Conditions of Service of the Ministerial Staff of the Department of Education which, according to the respondents, contained a clause that for purposes of appointment of Clerks/ Peon, it is only the Regional Deputy Director of Education who is competent to make such appointments and that such Clerks/ Peons fall within the Divisional Cadre. However, the learned counsel for the petitioner has drawn attention of this Court to paragraph 15 of the reply to the counter affidavit, wherein the petitioner has stated that this procedure notified in 1974 had never been implemented and that persons had been regularly appointed in the same manner as the petitioner and that a large number of persons who had been appointed without following this procedure are still working. The petitioner has further stated in this paragraph that other persons, namely, Rajeev Srivastava appointed by District Education Officer, Sahebganj has been given a different and preferential treatment and he is still continuing on his post. No reply to the aforementioned paragraph has been given. On the contrary, the learned counsel for the respondents conceded in Court that the procedure was never followed till date. No reply to the aforementioned paragraph has been given. On the contrary, the learned counsel for the respondents conceded in Court that the procedure was never followed till date. In that view of the matter the action of the respondents in falling back upon the provisions of Rule 74 only in the case of the petitioner and retaining others amounts to an act of discrimination. 18. After the petitioner received the aforementioned letter (Annexure-12, asking him to file his cause within one week, the petitioner showed cause by Annexure-13. In the said cause, he mentioned at paragraph 3 thereof about the preferential treatment given to one Rajeev Kumar Srivastava mentioned above. 19. After all this had happened, the respondents passed the impugned order which is contained at Annexure-1 on 27.05.2000 terminating the services of the petitioner. This is how this writ petition has been filed challenging the same as being wholly illegal, arbitrary and in complete violation of the principles of natural justice as also discriminatory. 20. This Court need not go into the other aspects, other factual details or other pleadings with regard to other examples of discrimination that have been stated by the writ petitioners because one discrimination is sufficient to establish the case of the petitioner. 21. Another very interesting point arises for consideration of this Court. Admittedly, the petitioner was appointed in 1989, albeit on the basis of an advertisement put up on the Notice Board. While the respondents clamour and urge that such an advertisement was no advertisement at all, yet the fact remains that after the petitioner joined, his services were duly recognized by the Divisional Establishment Committee as would be apparent from Annexure-3. In that view of the matter, it is now too late in the day for the respondents, to now say that the original appointment having been made on the basis of a Notice- Advertisement on the Notice Board, the same was an improper advertisement, and therefore, the appointment is bad. 22. Such an argument runs counter to the concept of constitutional safeguards and also runs counter to the concept of job security. Once a person is inducted into a job, he and his family gets attuned to the kind of living that his pay packet allows him. 22. Such an argument runs counter to the concept of constitutional safeguards and also runs counter to the concept of job security. Once a person is inducted into a job, he and his family gets attuned to the kind of living that his pay packet allows him. A sense of expectation and a ray of hope become the watch word of that family which continuous to fend for itself within the parameters of their means provided by the bread winner. Such an expectation, such a ray of hope cannot be allowed to be dashed to the ground at the instance of the executive authorities of the Department and that too after so many years. This is one of those cases which shows scant regard to the well known constitutional philosophies propounded and which now stand enlarged in the realms of Article 21 of the Constitution. Article 21 of the Constitution of India envisages and protects and right to live and incidentally, the right to live also includes the right to live decently. Even if it is a peon or a IVth grade staff or an ordinary Clerk, he too becomes a recipient of this right by reason of Article 21 and it becomes an integral part of his life the moment he takes birth. Even such a low paid employee has a right to live decently. During all these years, from the date of his appointment, the petitioner sustained himself and his family with whatever little money or with whatever little salary that he got. How can an Executive Authority in a democratic State take out his sword against this constitutional shield? Such action smacks of arbitrariness and must be deprecated in the strongest, strongest possible terms. Having allowed the petitioner to continue in service for such a long time, i.e. right from 1989 to the year 2000, they cannot fall back on technical procedural lapses of Rule 74, which were never acted upon and terminate the services of the petitioner. The writ application, therefore, deserves to be allowed. 23. The writ application is accordingly allowed. The impugned order dated 27.05.2000 is quashed. In view of the unnecessary harassment and mental agony and torture that the petitioner must have faced, this Court fells that the petitioner should be compensated. The writ application, therefore, deserves to be allowed. 23. The writ application is accordingly allowed. The impugned order dated 27.05.2000 is quashed. In view of the unnecessary harassment and mental agony and torture that the petitioner must have faced, this Court fells that the petitioner should be compensated. However, instead of granting monetary compensation, this Court directs that all the respondents including Secretary, Department of Education; Regional Deputy Director of Education shall personally go to the house of the petitioner, wherever he be and hand over a formal letter of reinstatement together with all benefits which would enure to his favour as a consequence of this order. This is the least that the State must do to compensate the petitioner. It goes without saying that the entire exercise must be completed within 21 (twenty one) days from the date of receipt of a copy of this order.