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2009 DIGILAW 1138 (JHR)

Himanshu Prasad Sinha v. State of Jharkhand

2009-08-18

D.G.R.PATNAIK

body2009
JUDGMENT In compliance with the order passed on 03.08.2009, the Respondent No. 6, who is the Civil Surgeon-cum-Chief Medical Officer has appeared in person today and has filed his counter affidavit. 2. From the counter affidavit, it appears that although the Respondents have acknowledged the fact that earlier a judgment was passed by this Court vide C.W.J.C. No. 2624 of 2000 in which a direction was issued to the State Government “to treat the petitioners on the same footing to that of Arun Kumar Rout and 19 others in pursuance of the order of the Supreme Court and give the same benefit to the petitioner, therein, which has been given to Arun Kumar Rout and 19 others”. Against this order a legal opinion was sought for by the Respondents and as per the legal opinion, a proposal was given for filing L.P.A. against the judgment passed in C.W.J.C. No. 2624 of 2000. It is informed by the learned counsel for the petitioner that no L.P.A. was filed and directions as contained in the aforesaid writ application continued to stand for compliance by the Respondents. 3. It is also brought to the knowledge of this Court that earlier in writ application, C.W.J.C. No. 10554 of 1998, the Patna High Court vide its order dated 08.02.2000, had issued a similar direction to the Respondents to grant appointment to the petitioners, therein, who were earlier retrenched, in the same manner as directed by the Supreme Court in the Arun Kumar Rout’s case. 4. When the direction was not complied with a contempt petition was filed by the petitioners therein. The Respondents-authorities had filed their show-cause replies stating therein that in compliance with the orders of the Supreme Court, all the seven petitioners have been given appointment. Thereafter, the contempt application was dropped. 5. Such appointment was however, unilaterally cancelled by the Respondents-authorities vide the impugned order dated-11.09.2004` (Annexure-16) on the ground that the appointment was contrary to the guidelines and directions contained in the case of Arun Kumar Rout & Others. 6. From perusal of Annexure-16, it appears that the ground for cancellation as declared therein, is that the appointments made, were declared contrary to the directives contained in the case of Arun Kumar Rout and others and also in C.W.J.C. No. 10554 of 1998. 7. 6. From perusal of Annexure-16, it appears that the ground for cancellation as declared therein, is that the appointments made, were declared contrary to the directives contained in the case of Arun Kumar Rout and others and also in C.W.J.C. No. 10554 of 1998. 7. Learned counsel for the petitioners submits that no such declaration by any competent authority was made and neither have the judgments passed in C.W.J.C. No. 10554 of 1998 or the judgment passed in C.W.J.C. No. 2624 of 2000, been set aside. 8. Learned counsel for the Respondent-State would want to explain by reference to Annexure-15, which is a communication/directive, issued by the Deputy Secretary, Department of Health to the Civil Surgeon (Respondent No. 6), stating that the appointment was declared as contrary to the directives of the Patna High Court and that of the Supreme Court. Learned counsel however, is not able to inform as to who has declared such appointment to be illegal or contrary to the directions contained in the judgment passed by the Supreme Court and by the High Court. 9. In absence of any proper explanation, it is deemed that the stand taken by the Respondents, that the appointments were declared illegal and contrary to the earlier directions contained in the earlier judgments, is a misleading statement and a misleading ground for cancellation of the appointment of the petitioners. 10. It also appears that admittedly, before cancelling the appointment of the petitioners, neither was any notice served upon them nor were they given any opportunity of being heard. 11. Such unilateral action of the petitioners without issuing any prior notice against the proposed cancellation, is contrary to the principles of equity and natural justice and cannot possibly be sustained in law. 12. For the above reasons, I find merit in this writ application. The impugned order dated-11.09.2004 (Annexure-16), passed by the Civil Surgeon-cum-Chief Medical Officer, Dumka (Respondent No. 6) is hereby quashed. The petitioners are entitled for their reinstatement in service together with full back wages from the date of termination of their services. 13. However, if the Respondents-authorities have any reservation regarding the propriety of the appointment of the petitioners, they would be at liberty to take proper action, subject, however to the condition that the petitioners should be given prior notice and adequate opportunity of being heard. 14. 13. However, if the Respondents-authorities have any reservation regarding the propriety of the appointment of the petitioners, they would be at liberty to take proper action, subject, however to the condition that the petitioners should be given prior notice and adequate opportunity of being heard. 14. The personal appearance of the Civil Surgeon-cum-Chief Medical Officer, Dumka (Respondent No. 6) is hereby dispensed with. 15. With these observations, this writ application is disposed of. 16. Let a copy of this order be given to counsel for the Respondents.