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Patna High Court · body

2007 DIGILAW 615 (PAT)

Jata Shankar Jha v. Madhubani Municipality

2007-03-26

AJAY KUMAR TRIPATHI

body2007
Judgment 1. The petitioner is aggrieved by Memo No. 3164 dated 26.9.2005 issued by the Deputy Secretary, Urban Development Department, Government of Bihar which is contained in annexure-13 of the writ application. By virtue of this order appointment of the petitioner on the post of Junior Engineer, Madhubani Municipality has been cancelled. The petitioner also assails the order dated 9.12.2005 annexure-15 issued bv the Executive Officer, Madhubani Municipality which is a follow up letter based on annexure-13. 2. The case of the petitioner is that he was engaged as a Junior Engineer on daily wages against sanctioned vacant post for initial period of one month in the year, 1988. The private respondent no. 6 was also engaged in the same manner under the Municipality. On 15.9.1989 an advertisement was issued by the Municipality to make regular appointment to the said post of Junior Engineer. Many persons applied in response to the said advertisement which included the petitioner as well respondent no. 6. But this advertisement was not acted upon. On 30.9.1989 respondent no. 6 was removed from his post of Junior Engineer. 3. This action of the respondent Municipality provoked respondent no.6 to file C.W.J.C. 2263 of 1990. The matter was heard and the High Court vide order dated 13.9.1993 disposed of the matter with a direction upon the respondent Municipality that it should take steps for regular appointment on the post of Junior Engineer. Since the petitioner was continuing in his post he was allowed to continue as such, till a final decision with regard to regular appointment was taken. The Municipality therefore issued another advertisement on 11.11.1993 for filling of the post of Junior Engineer on a regular basis. On 17.11.1993 an interview was held and several persons participated in the same. The petitioner was selected and appointed to the post of Junior Engineer on regular basis vide order dated 18.12.1993. This order is annexure-3 to the writ application. 4. After the order dated 18.12.1993 was issued respondent no. 6 filed C.W.J.C. No. 12899 of 1993 challenging the said order and the appointment of the petitioner. The matter was heard by the High Court and order dated 28.7.1997 came to be passed. The High Court quashed the appointment of the petitioner. The petitioner therefore filed an appeal namely L,.P.A. No. 1011 of 1997. 6 filed C.W.J.C. No. 12899 of 1993 challenging the said order and the appointment of the petitioner. The matter was heard by the High Court and order dated 28.7.1997 came to be passed. The High Court quashed the appointment of the petitioner. The petitioner therefore filed an appeal namely L,.P.A. No. 1011 of 1997. The Division Bench on 17.9.1997 passed an interim order staying the operation of the order of the learned Single Judge and the matter was accepted for hearing. The petitioner, therefore, continued to work on the post of Junior Engineer from the date of his initial appointment in the year, 1988. 5. L.P.A. No. 1011 of 1997 finally came to be heard on 13.1.2004 and the Division Bench was pleased to dismiss the said L.P.A. directing that the matter be considered afresh and the parties were relegated to the position operating on the date of judgment passed in the writ application. As a follow up action the Executive Officer of the Municipality issued Memo dated 13.2.2004 removing the petitioner from his post but the Chairman of the Municipality intervened and set aside the order of removal on the ground that the power of removal of any employee under the Municipality was vested in the Board of Municipality and the Executive Officer could not take a decision of his own. 6. On 21.4.2004 the full Board meeting of the Municipality was held to consider the order passed by the High Court in L.P.A. No. 1011 of 1997. The Board decided to constitute a selection committee for fresh appointment. A committee consisting of four Ward Commissioners was constituted and power was vested in them to make the selection. The committee therefore decided to issue letters to the petitioner as well respondent no. 6 to appear before the committee on 11.5.2004. On 11.5.2004 the petitioner appeared but respondent no. 6 chose not to appear. The selection committee therefore selected the petitioner and recommended for appointment on the post. Office order dated 11.5.2004 was issued by the Executive Officer informing the Deputy Secretary of the decision of the Municipality. This letter is contained in annexure-11 to the writ application. 7. Strangely enough after five months of the appointment of the petitioner a Board meeting of the Municipality was convened on 27.10.2004. This according to the petitioner was managed by respondent no. This letter is contained in annexure-11 to the writ application. 7. Strangely enough after five months of the appointment of the petitioner a Board meeting of the Municipality was convened on 27.10.2004. This according to the petitioner was managed by respondent no. 6 through his wife who happened to be a Ward Commissioner in the said Municipality. A case was made out that since respondent no. 6 did not get any notice for the selection which was made on 11.5.2004 therefore the matter required fresh consideration. The Board resolved to cancel the earlier proceeding by virtue of which decision was taken for permanent appointment of the petitioner. This was done without any notice or show cause to the petitioner. Further the appointment of the petitioner also came to be cancelled. Soon after this meeting of the Board a meeting on 8.11.2004 came to be held and in that meeting it was unanimously decided that respondent no. 6 should be appointed on the post of Junior Engineer in place of the petitioner. The Municipality also recommended the petitioner for appointment on the second post keeping in mind the 18 years of satisfactory service. However it was resolved that the salary of the petitioner would only be paid after the said post was approved by the Urban Development Department as there was only one sanctioned post of Junior Engineer. It was in this background that the case of the petitioner came to be referred to the Urban Development Department. The Urban Development Department vide its decision dated 26.9.2005 contained in annexure-13 communicated to the Municipality that since there was only one post of Junior Engineer sanctioned for Madhubani Zila Parishad, therefore the petitioner could not be appointed to the same said post. His appointment therefore was ordered to be cancelled. Based on this decision of Urban Development Department the consequential order dated 9.12.2005 was issued by the Executive Officer which is impugned annexure-15. 8. The challenge of the petitioner to the appointment of respondent no. 6 is basically based on two grounds. First that after the Board of Municipality took a decision and accepted the recommendation of the selection committee and appointed the petitioner to the post on permanent basis on 11.5.2004, it was not open to the Municipality to review its decision without giving any opportunity of hearing. More so when the service of the petitioner had already been made permanent. First that after the Board of Municipality took a decision and accepted the recommendation of the selection committee and appointed the petitioner to the post on permanent basis on 11.5.2004, it was not open to the Municipality to review its decision without giving any opportunity of hearing. More so when the service of the petitioner had already been made permanent. The second limb of the argument of the petitioner is that the entire decision of the respondent Municipality to undo the appointment of the petitioner after five months was done to accommodate respondent no.6 who happens to be the husband of one of the Ward Commissioner, namely Punam Raut. Therefore the decision to remove the petitioner was managed by said Ward Commissioner so that her husband who is respondent no. 6 can be accommodated afresh. The fact that he chose not to participate in the selection process and interview conducted by respondent Municipality was ignored. 9. There seems to be some force in the argument of the petitioner because it is an accepted fact that when the selection was held on 11.5.2004 respondent no. 6 chose not to appear. Once having opted out and not participated in the same, it is not understood as to under what circumstances the permanent appointment of the petitioner came to be undone after five months. From perusal of record there seems to be reflection and a spacious plea has been taken that respondent no. 6 did not get any information or notice with regard to the selection which was to be held on 11.5.2004 therefore the matter needed fresh consideration. 10. This is strange because a selection already made, recommended, accepted and notified cannot be undone on the ground that one of the candidates who was otherwise well connected with the organisation did not get notice. There is nothing on record to prove this stand of respondent no. 6. Mere assertion has been acepted as a gospal truth. Based on this assertion of an interested party it is not understood as to how the Board of Directors of the Municipality could undo their earlier decision by reviewing the same. The power of review it is well established cannot be exercised at the whims and fancies of any person or individual. The power must vest in the body under a statute. The power of review it is well established cannot be exercised at the whims and fancies of any person or individual. The power must vest in the body under a statute. In absence of the same there is no suo motu right of review in anybody. 11. Another aspect which is glaring is as to how the Municipality after undoing its earlier decision came to appoint respondent no. 6 straightway. If for the sake of argument even if it is accepted that Municipality had an authority to review its earlier decision of appointing the petitioner on the post on a regular basis then a fresh exercise ought to have been taken by giving opportunity to one and all. It is strange that merely because the respondent no. 6 chose to opt out of the selection he does not get any vested right to be appointed to the post. He still had to qualify in the selection process before he could be recommended for appointment. This Court is also persuaded to accept that the wife of respondent no. 6 who is a Ward Commissioner did have a role to paly in changing the decision of the Municipality. This feeling is further strengthened by the fact that respondent no. 6 was the direct beneficiary of the illegal decision of the Municipality to review its earlier order appointing petitioner on the post of Junior Engineer. The Court gets a feeling that the petitioner was intentionally appointed on the second post and the matter was referred to the State Government for opinion so that the petitioner could be ousted if not eliminated from the race altogether after obtaining stamp of approval from the State Government. The whole proceeding therefore does prima facie seems to have been manipulated for the benefit of respondent no. 6. 12. In view of the above facts as well as the contentions, this Court does come to this conclusion that the contention of the petitioner that his removal was managed in gross violation of necessary rules and law on the issue is correct and therefore, the decision of the Executive Officer dated 9.11.2004 appointing respondent no. 6, the Government order contained in annexure-13 as well as that of the Executive Officer contained in annexure-15 deserve to be quashed. These impugned orders are accordingly set aside. 13. This writ application is accordingly allowed.