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2004 DIGILAW 985 (JHR)

Ajay Kant Jha v. State Of Bihar

2004-09-23

TAPEN SEN

body2004
ORDER Tapan Sen, J. 1. Heard Mr. M.K. Habib. learned counsel appearing for the petitioner and Mr. M.J. Rahman, learned J.C. to the J.P. II for the State-respondents. Although the State of Jharkhand has not been made a party, but since the District Superintendent of Education, Dhanbad is the respondent No. 3 Mr. M.J. Rahman submits that he has necessary instructions to appear in this case. 2. The facts pleaded in this writ petition paints a somewhat dismal picture,, in relation to the status to which the petitioner has been subjected. He was empanelled in the year 1986, but he was not given employment only because he did not belong to the district of Dhanbad. This Court can take judicial notice of the fact that the criteria that people of a particular district should only be appointed has been hit by a number of judgments being violative of Articles 14 and 16 of the Constitution of India because it discriminates the residents of other districts without any rationale and these judgments are reported in 1987 PUR 846, Anil Kumar v. State of Bihar; 1990 PUR 226, Priti Biswas v. State of Bihar: and (1991) 1 PLJR 33. Devanand Roy v. State of Bihar. 3. From the pleadings, it appears that the process of appointment from the 1986 panel started in 1987 itself and others were appointed. Since the respondents chose not to appoint the petitioner on the aforementioned criteria, the petitioner filed CWJC No. 527 of 1989(R).That writ petition was disposed- off on 18.3.1999. Mr. M.K. Habib, learned counsel for the petitioner produced for perusal of this Court a photocopy of that order and the same is. therefore, being reproduced below. The said order reads as follows : "2.8.1989 No body appears on behalf of the petitioner. Heard the learned Government Pleader No. 2 and perused the writ petition. Respondents could not have refused to appoint the petitioner as Assistant Teacher in Science on the ground that he was not a permanent resident of the district of Dhanbad. In the circumstances, we direct the respondents to issue appointment letter to the petitioner, if he is otherwise fit to be so appointed." 4. It further appears that even after the aforementioned order, the respondents chose not to appoint the petitioner. This compelled him to file a contempt application which was registered as MJC No. 1-77 of 1990 (R). In the circumstances, we direct the respondents to issue appointment letter to the petitioner, if he is otherwise fit to be so appointed." 4. It further appears that even after the aforementioned order, the respondents chose not to appoint the petitioner. This compelled him to file a contempt application which was registered as MJC No. 1-77 of 1990 (R). It is, thereafter, that the petitioner seems to have-been appointed on 26.3.1991, but when his seniority list was prepared his seniority was given from the actual dale of appointment. 5. No doubt the universal law of seniority is I hat the same should be reckoned from the date of appointment in a substantive capacity, but it appears that lor no fault on his part, the appointment of the petitioner was unnecessarily delayed. It would have been another thing if the respondents had acted immediately after, at least, the first order had been passed in CWJC No. 527 of 1999, but they did not do so. 6. This is. therefore, one of those cases where this Court is prima facie of the opinion that injustice has been caused to the petitioner. However, this Court cannot grant him the relief sought for in the writ petition to the extent that he should be treated to be at par with the other persons who had been appointed from the same panel or. that his position should be restored amongst them with effect from 1987 with all consequential benefits. Such an order would amount to going contrary to the well known principle and law of seniority. 7. This Court notices that in relation to other similarly situated persons such as one Girish Chandra Singh (Annexure 5 appended to the supplementary affidavit) who was a contender for the post of a teacher in the Middle School, Baliapur, Amtal, the respondents did not appoint him in the year 1987 out of the 1985 panel as he was treated to be an outsider. However, on the basis of an order passed by the then Ranchi Bench of the Patna High Court, he was given appointment subsequently on 10.10.1988 and was also given seniority in the matrio trained scale retrospectively with effect from 13.2.1987 with a condition that during the inteiregnum, i.e., 13.2.1987 to 10.10.1988 he would not be entitled to any salary but his pay would be fixed with effect from 13.2.1987. 8. 8. The aforementioned fact in relation to Girish Chandra Singh has been stated in paragraph 2 of the supplementary affidavit filed by the petitioner at Tunning page 41 of this writ petition and Annexure 5 is at running page 43. This Court, therefore, observes that whatever relief has been given to Girish Chandra Singh, should, in the facts and circumstances of this case, be also given to the petitioner. In that view of the matter and taking into consideration that there was no fault on the part of the petitioner, the respondents should act in the same manner with the petitioner as they had acted with Girish Chandra Singh. 9. The petitioner, therefore, will not be entitled to any salary from 1987 but for the period 1987 to 26.3.1991, his pay fixation should be with effect from 1987, i.e. in the same manner as was done to Girish Chandra Singh. With the aforementioned observations and directions, this writ petition is disposed off. However, there shall be no order as to costs.