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2006 DIGILAW 649 (JHR)

Kistu Prasad Deo v. State Of Jharkhand

2006-05-16

PERMOD KOHLI

body2006
ORDER Permod Kohli, J. 1. Heard. 2. Petitioners father Late Mahadeo Prasad Deo was working as Assistant Teacher in a Secondary School, Lakhauria and died in harness on 24.12.1978. The petitioner as also his mother applied for compassionate appointment some where in the year 1986. The petitioner was engaged as a Peon on 1.2.1986. The respondents sought for no objection from the side of the petitioners mother and pursuant to that, the mother of the petitioner filed an application before the District Superintendent of Education, Deoghar conveying no objection for appointment of his son. Later on the Principal of the School made an application before the District Education Officer, Deoghar on 26.7.1986 for approval of the appointment of the petitioner. Pursuant to the letter made by the Principal of the School, District Education Officer, Deoghar vide his letter dated 31.7.1986 accorded the approval for the appointment of the petitioner as Peon. The matter was referred to the District Establishment Committee for compassionate appointment of the petitioner. It is alleged in the petition that after following the due procedure of law, the petitioner was appointed and he continued in service since 1st February, 1986. This averment made in para 9 of the petition has not been seriously disputed in the reply filed by the respondents. On the other hand it is stated that the Principal of the said school had no jurisdiction to appoint the petitioner. It was only in the year 2001 that the impugned letter No. 1002 dated 24.12.2001 came to be issued by the District Education Officer, Deoghar and communicated to the petitioner by the Principal of the School vide letter dated 25th August, 2002 and on the basis of the impugned letter vide order dated 31st of December, 2001 the petitioner has been removed from service by the Headmaster on 5th September, 2002. Both these letters are under challenge in the present petition. 3. Respondents in the reply have defended their action as also the impugned letters on the ground that initial appointment of the petitioner in the year 1986 was not by a competent person as the Headmaster had no jurisdiction to make appointment. It is accordingly, stated that in view of the Government circular No. 398 issued on 9th of June, 1983 the appointment of the petitioner is liable to be cancelled. 4. It is accordingly, stated that in view of the Government circular No. 398 issued on 9th of June, 1983 the appointment of the petitioner is liable to be cancelled. 4. Admittedly, the petitioner continued in service for a period of about 16 years. Even the circular relied upon by the respondents was in operation during this period but no action whatever was initiated against the petitioner. The petitioner is now seeking quashment of the impugned order dated 31st December, 2001 having been passed without holding any enquiry and even without putting him to notice or seeking his explanation or for that matter deciding the issue in consonance with the principle of natural justice in any manner. 5. It is not the case of the respondents that the petitioner has secured employment by any mis-representation or by applying fraud in any manner. It is also not in dispute that the Principal of the School was the appointing authority in the case of the petitioner and application of the appointment was also on compassionate ground. Even if it is assumed that initial appointment of the petitioner was not in accordance with the procedure prescribed, yet the impugned orders and action of the respondents removing the petitioner from the service is not sustainable in law for gross violation of principle of natural justice. It is settled law that when any order or action of an authority prejudicially affects the rights of a person, principle of natural justice, are required to be observed. Similar issue came for consideration before the Apex Court in Basydei Tiwari v. Sido Canhu University and Ors. . In the case before Honble Supreme Court also service of an employee of Sido Kanhu University was sought to be dispensed with on the ground that the initial appointment was not by a competent person. There was a specific provision i.e., Section 35(3), where any appointment made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner was required to be terminated at any time without notice. The Apex Court while considering the validity of the action held as under: The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of state action governed by Article 14. The Apex Court while considering the validity of the action held as under: The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of state action governed by Article 14. It has come to be established, as a further corollary, that the Audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation V.D.T.C. Mazdoor Congress. 6. Apart from the fact that impugned action/order of the respondents is in gross violation of the principle of natural justice, equity also is on the side of the petitioner who served the respondents for a period of 16 long years and now at this juncture his ouster from service will not only render him jobless but he is also prevented him from seeking employment elsewhere on account of his advance age. 7. In Brijendra Prasad Singh v. State of Jharkhand and Ors. 2002(2) JLJR 229 : 2002 (2) JCR 118 (Jhr), this Court in similar circumstances protected the appointment sought to be cancelled after 21 years of service on the grounds that employee was over aged at the time of initial appointment and his appointment was made without following procedure. 8. In view of the above legal position and the fact that the petitioner cannot be accused of securing appointment by misrepresentation or fraud, the impugned action is not sustainable in law. 9. Accordingly, this application is allowed and the impugned order/letter No. 1002 dated 24.12.2001 issued by the respondent No. 4 is hereby quashed and consequently the petitioner is deemed to be in service, he shall be entitled to all the consequential benefits during the period he remained out of service. Respondents are directed to reinstate the petitioner forthwith and to allow him to continue in service till he attains age of superannuation.