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2003 DIGILAW 891 (JHR)

Kamala Kant Bhattacharjee v. State Of Bihar

2003-07-25

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard Mr. V. Shiv-nath, learned counsel for the petitioner assisted by Mr. Prabir Chatterjee and Mr. Rupesh Kumar Singh, J.C. to S.C.-I representing the State Respondents. 2. The Writ Petition is directed against the order dated 16.05.1997 passed by the respondent No. 4 whereby and whereunder while referring to the cancellation of appointment, made by letter dated 23.07.1992 as contained in Annexure I, he gave a general direction to all concerned officers of the Department of Education to ensure that whoever may have been appointed illegally, should be stopped from work and their salaries should also not be paid to them notwithstanding orders of any Court. 3. The aforementioned orders was sought to be implemented by the Head Mistress of the concerned school by letter dated 30.05.1997 communicating inter alia to the Petitioner that pursuant to the aforementioned general direction dated 16.05.1997 (Annexure 4), the salary of the Petitioner would not be paid and that no work would be taken from him. 4. The aforementioned order appears to be a virtual misadventure on the part of the respondent No. 4 and this Court is absolutely amazed at the brazenness and the manner in which he dared to pass the said order against a specific judgment of the then Ranchi Bench of the Honble Patna High Court (now Jharkhand High Court). Some facts will, therefore, necessary to be taken note of. 5. On 23.07.1992, by Annexure I, an office order was issued from the office of the Human Resources Development Department, Government of Bihar, Patna under the signature of the Director, Secondary Education whereby and whereunder it was intimated that a list of irregular appointees had been prepared and that their appointments were being cancelled. The name of the Petitioner was enlisted against Serial No. 13, i.e., K.C. Balika Uchha Vidyalaya, Jharia showing his appointment as Peon vide Office Order No. 2287 dated 06.12.1987. 6. The Petitioner, being aggrieved filed C.W.J.C. No. 1186 of 1995(R) before the then Ranchi Bench of the Honble Patna High Court and by judgment and order dated 13.12.1995, the said Office Order dated 23.07.1992 in so far as it related to the Petitioner was quashed with a direction that the Petitioner should be retained in service as any other similarly situated person whose services had been retained even after retrenchment. That order is Annexure 2 appended to this Writ Application. 7. That order is Annexure 2 appended to this Writ Application. 7. Subsequently, by order dated 10.04.1996, the aforementioned judgment passed in C.W.J.C. No. 1186 of 1995 (R) was implemented by the District Education Officer, Dhanbad vide Annexure 3 and the Petitioner was taken back in service. 8. It is, thereafter that the District Education Officer suddenly seems to have taken on himself the aforementioned so called onerous duty of terminating irregular appointments even if it meant going against the judgment of the Ranchi Bench of the Honble Patna High Court referred to above. The very nature of the order is such as if it upsets even judgments/orders of the High Court to wit Annexure 2 in the instant case. 9. Although the aforementioned order was a general order yet it did affect the Petitioner because in order to give to the same, the Head Mistress of the School passed the impugned communication on 30.05.1997 vide Annexure 5. 10. The Petitioner was therefore absolutely right in filing a Contempt Application before this Court which was registered as M.J.C. No. 359 of 1998 (R). By order dated 16.02.1999, the Contempt Application was dismissed and an observation was made that the Petitioner, if so advised, may challenge the order of termination on its own merits in an appropriate forum and in an appropriate proceeding. It is, thereafter, that the Petitioner has filed the instant Writ Application. 11. In the meantime, one Dhananjay Kumbhkar who was also similarly terminated vide Annexure I against Serial No. 7 and who had been appointed in the Rajyakiyakrit Uchha Vidyalaya, Baghmara had also filed a Writ Petition and it appears that he also succeeded. Thereafter, the State filed Letters Patent Appeal No. 446 of 1997 (R) and by judgment/order dated 09.03.1999 as contained in Annexure 7 the said appeal was dismissed as being barred by time. Thereafter, the State moved up to the Honble Supreme Court of India vide Special Leave Petition No. CC 7162 of 1999 and by order dated 06.01.2000, the said appeal was also dismissed on the ground of delay. The aforementioned order of the Honble Supreme Court of India was produced during the course of hearing by Mr. V. Shivnath. 12. Thereafter, the State moved up to the Honble Supreme Court of India vide Special Leave Petition No. CC 7162 of 1999 and by order dated 06.01.2000, the said appeal was also dismissed on the ground of delay. The aforementioned order of the Honble Supreme Court of India was produced during the course of hearing by Mr. V. Shivnath. 12. From perusal of the counter-affidavit filed on behalf of the respondent No. 4, it is apparent that no explanation has been given as to how and under what circumstances the respondent authorities could have passed the impugned orders contrary to the judgment passed in favour of the petitioner on 13.12.1005 in C.W.J.C. No. 1186 of 1995 (R) referred to above. On the contrary, the counter-affidavit once again deals with irregular appointments made earlier but in view of the judgment of this Court passed earlier which has been referred to above, the respondents cannot be allowed to take these points again because the respondents have not been able to demonstrate that Annexure 2 was either set aside in appeal or modified in any manner whatsoever. In fact, In the absence of any such explanation coming forth, it must be held that Annexure 2 attained finality. 13. For the foregoing reasons therefore, this Court is satisfied that this Writ Application must succeed and It is, accordingly allowed to do so. The impugned Annexures 4 and 5, i.e., the orders dated 15.05.1007 and the communication dated 30.05.1996 in so far as it relates to the petitioner are hereby set aside and quashed. The respondents are directed to immediately and forthwith comply with the operative effect of Annexure 2 and to issue necessary order reinstating the petitioner in service treating him to be a continuous employee without any break and also pay to him all consequential benefits to which he would have been entitled had the impugned orders not been passed. This Writ Application is accordingly allowed. There shall however be no order as to costs.