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Jharkhand High Court · body

2009 DIGILAW 1188 (JHR)

Shyama Charan Tiwary v. State of Jharkhand

2009-08-25

D.N.PATEL

body2009
Order Learned counsel for the petitioner has submitted that the petitioner was at Serial No. 14 in the seniority list, prepared and published by the respondents, for the post of "Forester". 2. Learned counsel for the petitioner has further submitted that this seniority list for the post of Forester, was finalized on the basis of circular issued by the respondents dtd. 20th of December, 2002. Neither the seniority list nor the basis of the seniority list i.e. a circular dtd. 20th of December, 2002, has been quashed by any Court of law, but, even then order and a unilateral, arbitrary decision has been taken and that too, without giving any opportunity of being heard to the petitioner whereby seniority of the petitioner in the seniority-list for the post of Forester has been reshuffled and now, the petitioner has been given Seniority No. 211, instead of Seniority No. 14. This unilateral action taken on the part of the respondents by the order dtd. 11th December, 2007, passed by Conservator of Forest (Annexure-18 to the memo of petition) is under challenge. 3. The petitioner was appointed in the Year, 1984, as a Forest Guard and upon completion of training the petitioner was appointed on the post of Forester on 30th of January, 1993, and thereafter, a circular was issued by the Government, dtd. 20th of December, 2002, whereby a policy decision has been taken by the respondents that from the date of joining as a Forest Guard, the seniority on the post of Forester ought to be fixed and finalized and, therefore, the petitioner was given seniority on the post of Forester with effect from 23rd of August, 1984. 4. It is also submitted by learned counsel for the petitioner that in W.P.(S) bearing No. 224 of 2004, which was decided on 13th of July, 2006 (Annexure-6 to the memo of petition», by this Court never this Court has quashed the seniority for the post of Forester nor the Circular, dated 20th December. 2007, has been quashed. On the contrary, the petitioner has been given seniority at Serial No. 14 on the post of Forester after the aforesaid decision i.e. on 11th of January, 2007 vide Office Order No.1. 2007, has been quashed. On the contrary, the petitioner has been given seniority at Serial No. 14 on the post of Forester after the aforesaid decision i.e. on 11th of January, 2007 vide Office Order No.1. Thus, for no valid reason the seniority of the petitioner for the post of Forester has been reshuffled and the petitioner has been reduced from the Seniority No. 14 to Seniority No. 211 and that too, without giving any opportunity of being heard to the petitioner and, therefore, the order passed by the Conservator of Forest, dated 11th of December, 2007, at Annexure-18 and also such other letters which are referred in the said annexure of the different authorities deserves to be quashed and set aside, in so far as, they affect the seniority of the present petitioner and the petitioner should be given a seniority at Serial No. 14 on the post of Forester. 5. I have heard learned counsel appearing on behalf of the respondents who has submitted that because of the afore, said Writ Petition bearing W.P.(S) No. 224 of 2004, which was decided on 13th of July, 2006, and as per this order, the seniority of the post of Forester has been reshuffled and, therefore, the petitioner's Seniority No. 14 has been reduced to 211. The circular issued by the respondents-State, dated 20th of December, 2002, has also been quashed and set aside by the same judgment. Thus, the very basis of seniority has been changed and, therefore, the seniority number of the petitioner' has also been changed for the post of Forester and, therefore, there is no substance in the writ petition. Hence, the same deserves to be dismissed. 6. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case it appears:- I. that the petitioner was initially appointed on the post of Forest Guard on 23rd of August, 1984. II. thereafter, the petitioner was given a training and upon successful completion of training, he was appointed on the post of Forester on 30th of January, 1993. III. II. thereafter, the petitioner was given a training and upon successful completion of training, he was appointed on the post of Forester on 30th of January, 1993. III. that thereafter, a policy decision has been taken by the respondents, as per circular dated 20th of December, 2002, whereby it was decided by the Government that from the date of joining on the post of Forest Guard, seniority of the post of Forester should be calculated and should be fixed and, therefore, the petitioner was given seniority on the post of Forester with effect from 23rd of August, 1984, the petitioner was placed at Serial No. 14 in this seniority-list. This seniority was given to the 'petitioner vide Office Order No.1, dated 11th of January, 2007 (Annexure-12 to the memo of petition). IV. that the Conservator of Forest has issued a Letter, dated 11th of December, 2007, at Annexure-18 to the memo of present petition whereby the seniority number of the petitioner has been reduced from 14 to 211 on the post of Forester. This is an unilateral action of the respondents: never any notice was given to the petitioner nor any opportunity of being heard was given to the petitioner. Looking to the order passed by (at Annexure-18 of the memo of petition) the Conservator of Forest it appears that he has referred three other letters, but not a single letter has been given to the petitioner. What is so secret about these letters, is not known to the petitioner nor those secret letters have been revealed to the Court, nor these letters have been annexed. V. that in the aforesaid decision given by the Court neither the seniority of the Forester prepared by the respondents has been quashed and set aside nor the basis i.e. a circular dated 20th of December, 2002, has been quashed and set aside. VI. that in the counter-affidavit, the letters referred by the Conservator of Forest at Annexure-18, has never been annexed and, therefore, what is secret direction given to the Conservator of Forest as referred in Annexure-18 is not known to the petitioner, even today. Thus, the whole order at Annexure-18, has been passed without giving any opportunity of being heard and without giving the documents to the petitioner which are relied upon by the Conservator of Forest. VII. Thus, the whole order at Annexure-18, has been passed without giving any opportunity of being heard and without giving the documents to the petitioner which are relied upon by the Conservator of Forest. VII. that no reasons have been assigned by the, Conservator of Forest for reducing the seniority of the petitioner for the post of Forester from Sr. Nos. 14 to 211. The Circular dated 20th of December, 2002, has not been, even referred in the impugned order nor there is a reference of quashing of the said circular in the impugned order, but, it is orally submitted by learned counsel for the respondents that Government Circular, dated 20th of December, 2002, has been withdrawn by the Government and, therefore, the seniority list of the Forester has been reshuffled. From the impugned order, no such reasoning has revealed. Affidavit cannot supply the reasons to a non-speaking order. If the order is non-speaking order, it shall remain a non-speaking order, even though affidavit is a speaking affidavit, otherwise, all the bad orders will be converted into a legal and valid order by filing of the affidavits, at the later stage. Such type of novice practice adopted by the respondents of giving reasons in affidavit and keeping the impugned order silent deserves to be deprecated by this Court. 7. As a cumulative effect of the aforesaid facts and reasons; f hereby, quash and set aside the decision taken by the respondents for reducing the seniority of the present petitioner from Sr. Nos. 14 to 211 in the seniority list prepared' for the post of Forester. Liberty is reserved with the respondents, if they think fit to take action they can do so, in accordance with law, and at least after giving an opportunity of being heard to the petitioner. 8. In view of the aforesaid submission, this Writ Petition is allowed to the aforesaid.