Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 651 (JHR)

Sunder Bouri v. State Of Bihar

2004-06-29

TAPEN SEN

body2004
ORDER Tapen Sen, J. 1. Heard Mr. Amit Kumar Das, learned counsel appearing for the petitioner and Mr. B.S. Lal, learned Additional Advocate General for the State of Jharkhand. 2. In the instant case the petitioner prays for quashing the order dated 23.4.1998 passed by the respondent No. 2 as contained in Annexure-5 rejecting the claim of the petitioner for appointment on the post of chowkidar. The petitioner also prays for a direction upon the respondents to the effect that they may be mandated to issue a formal letter of appointment so that they give effect to the earlier order dated 27.8.1991 passed by the Sub-Divisional Officer and as contained in Annexure-2. 3. It is not necessary for this Court to repeat the facts as pleaded in the instant case because another Honble Single Judge of this Court has very aptly and briefly summarized the gist of the lis which is involved herein. This order is dated 9.12.1999 and it reads thus :-- "One Pandu Bouri was appointed as chowkidar on 28th October, 1980 of Jaspur Beat No. 5/24 against which an appeal was preferred by the father of the petitioner. In 1985, the appeal was decided in his favour and matter was remitted to the SDO for fresh decision. When the matter on remand was pending, the father of the petitioner died in 1989 and the son (the petitioner) was substituted, in whose favour an order was issued on 27th August, 1991. While claim of Pandu Bouri was rejected by the SDO, he ordered to appoint the petitioner vide said order dated 27th August, 1991. It appeals that the appeal thereafter preferred by Pandu Bouri was also dismissed for default on 14th August, 1994 and the order dated 27th August, 1991 reached its finality. According to the petitioner, the order dated 27th August, 1991 should have been given effect, but the same having not acted upon he represented. It was rejected on 15th February, 1997 on the ground that the post became a civil post since 1st January, 1990 i.e. after the death of his father, with observation that no compassionate appointment be made. The appeal, thereafter, preferred by petitioner was also rejected on 23rd April, 1998 on wrong presumption, giving reference of the case of Pandu Bouri. The counsel for the State prays for and is granted three weeks time to file counter affidavit. The appeal, thereafter, preferred by petitioner was also rejected on 23rd April, 1998 on wrong presumption, giving reference of the case of Pandu Bouri. The counsel for the State prays for and is granted three weeks time to file counter affidavit. The case may be disposed of at the stage of admission. Place the case for admission on 11th January, 2000." 4. Upon perusal of the aforementioned order of the Honble Single Judge, it is evident that after consideration, the respondents rejected the claim of Pandu Bouri and passed an order on 27.8.1991 as contained in Annexure-2, whereby and whereunder the matter was closed with a direction that the petitioner would be appointed. This is also evident upon reading the contents of Annexure-2 as also from the pleadings made in the writ petition. It is relevant to mention that reference to the order dated 27.8.1991 has been made specifically at paragraph 5 of the writ petition. The said paragraph 5 reads as follows: "5. That it is relevant to give the brief background of the order dated 27.8.1991 as contained in Annexure-2, vide an order dated 28.10.1960 passed in chowkidari seha case No. 7/78-79 the respondent No. 3 was pleased to appoint one Pandu Bouri as chowkidar for beat No. 5/24." 5. It is further evident from perusal of paragraph 6 of the writ petition that the aforementioned order dated 27.8.1991 was passed taking into consideration the following facts :-- (a) that on 28.10.1980, the respondent No. 3 appointed Pandu Bouri as chowkidar, (b) that being aggrieved by the said order, Pandu Bouri preferred an appeal before the respondent No. 2; (c) that by order dated 12.12.1985, the Appellate Authority set aside the order dated 28.10.1980 and remanded the matter to the respondent No. 3 with a direction that he should make appointment of another chowkidar; (d) that pursuant to the said remand, the order dated 27.8.1991 (Annexure-2) was passed : 6. Another event which is necessary to be taken note of is that after the order dated 27.8.1991 was passed appointing the petitioner, Pandu Bouri, being aggrieved, moved in an appeal before the respondent No. 2 vide revision Miscellaneous Case No. 96/91-92, but that appeal was also dismissed for default on 24.8.1994, where after and as has been pleaded that to the best of the knowledge of the petitioner, no step was taken by Pandu Bouri against the said order dated 24.8.1994. 7. The aforementioned statements have been made in paragraph 5 (as quoted above) as also in paragraphs 6 and 7 of the writ petition. 8. In reply to the aforementioned paragraphs 5 to 7, the respondents, in their counter affidavit at paragraph 6, have stated that the statements made in paragraphs 5 to 7 are admitted. They have also stated that it is an admitted position that the writ petition thereafter did not take any steps for issuance of his appointment letter and ceased his interest........" 9. This Court is not able to understand as to how the respondents can blame the writ petitioner and made an allegation, even after admitting the facts stated in paragraphs 5 to 7, that the petitioner did not take any steps. What possible steps the petitioner could have taken is not understood even after an order had been passed by the concerned officer appointing him. The only thing that he could have done was to await the issuance of a formal letter of appointment. It is therefore necessary to quote paragraph 6 of the counter affidavit which reads as follows :-- "6. That with regard to the statements made in paras 5 to 7 of the writ petition are admitted. It is admitted position that the writ petitioner thereafter did not take any steps for issuance of his appointment letter and ceased his interest for the appointment on the post of chowkidar." 10. Mr. B.S. Lal, learned Additional Advocate General for the State of Jharkhand submits that the aforementioned statement made in paragraph 6 of the counter affidavit is a typographical error. This Court therefore requested Mr. B.S. Lal to produce the Statement of Facts on the basis of which the counter affidavit had been prepared. Mr. Mr. B.S. Lal, learned Additional Advocate General for the State of Jharkhand submits that the aforementioned statement made in paragraph 6 of the counter affidavit is a typographical error. This Court therefore requested Mr. B.S. Lal to produce the Statement of Facts on the basis of which the counter affidavit had been prepared. Mr. Lal was kind enough to produce the Statement of Facts which was sent to the Office of the Advocate General for preparation of the counter affidavit and upon perusal thereof, it is evident that it was prepared by none other than one G.C. Choudhary, Government Pleader of Jamtara. In that Statement of Facts, paragraph 4 thereof reads as follows :-- "4. That statements made in paras 5, 6 and 7 of writ petition are true and are admitted. It is admitted position the writ petitioner thereafter did not take any steps for issuance of his appointment letter and ceased his interest for the appointment on the post of chowkidar." 11. In the interests of justice therefore Mr. B.S. Lal is directed to file a photocopy of the aforesaid Statement of Facts which shall be kept on record. From a perusal of the aforementioned Statement of Facts and with special reference to paragraph 4 thereof, it is evident that it is not a typographical error. It is a Statement of Facts prepared by an expert with due application of mind and it admits the statements made in paragraphs 5, 6 and 7 of the writ petition and paragraph 6 of the counter affidavit is an identical reproduction thereof. 12. Considering the aforementioned facts, this Court is of the opinion that it is not fair on the part of the respondents to have kept the petitioner in a state of suspended animation notwithstanding a decision having already been taken by a competent authority so many years ago. It is also not fair on the part of the respondents, who have taken a stand, even after admitting the statement made in paragraphs 5, 6 and 7 of the writ petition, that the fault lay with the petitioner inasmuch as "he did not take any steps for issuance of his appointment letter..... ." The act of issuance of an appointment letter is an act which has to be made by the persons who appoint a person. ." The act of issuance of an appointment letter is an act which has to be made by the persons who appoint a person. It is not for the appointee to take any action save and except to await the issuance of a formal order that is to be passed in his favour. 13. For the foregoing reasons therefore, this Court has no option but to hold that the action of the respondents is neither fair nor rational. Consequently, the orders passed on 15.2.1997 and 23.4.1998 are hereby set aside. However, taking into consideration that the decision to appoint the petitioner was taken in the year 1991, it is now desirable that the respondents should pass a final order strictly in accordance with law after taking into consideration the order dated 27.8.1991 passed by the Sub Divisional Officer. 14. However, taking into consideration that the matter is of 1991 and also taking into consideration the subsequent developments that have taken place including the creation of the new State of Jharkhand, this order should not be considered as if it is a mandate to appoint the petitioner. This order should be considered to be an order for purposes of consideration of the case of the petitioner keeping in mind the order dated 27.8.1991. The respondent authorities, while taking these things into consideration, shall also have due regard to the aspect of the position of vacancy in this respect. However, while dealing with the case of the petitioner, they shall not insist on his age. The writ petition stands disposed off. There shall however be no order as to costs.