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2009 DIGILAW 450 (JHR)

Renu Kumari No. 1 v. State of Jharkhand

2009-03-25

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for the following reliefs:- (i) For issuance of an appropriate writ/order/direction in the nature of Certiorari or any other appropriate writ for quashing the letter dated 5.5.2003, vide Memo No. 2308 issued by respondent NO.3, whereby the services of the petitioner has been terminated. (ii) For quashing of letter No. 76 dated 23.5.2003 issued by the respondent NO.2 whereby the petitioner has been directed to handover the charge in pursuance of letter dated 5.5.2003. (iii) For a direction upon the respondents to reinstate the petitioner in service from the date of termination. 2. The main contention raised by the counsel for the petitioner is, as to whether in absence of any letter/circular the services of the petitioner could have been terminated. 3. It appears that the petitioner has also filed a writ petition being W.P.(S) No. 2362 of 2003 for direction upon the respondent to pay her salary w.e.f. April 2001. The petitioner has further submitted that the petitioner is working in the territorial jurisdiction of Jharkhand and this Court has jurisdiction to decide it. 4. The counsel for the respondent submits that as many as 53 illegal appointments were made who were terminated from service. According to the learned counsel for the respondent the illegal appointment was made by Smt. Hemlata Yadav on 6.10.1994 without following the due process of appointment selection viz. without advertisement, interview, constitution of Selection Committee, roster clearance etc. and as per the Rule only the Board was made competent to make appointment, subject to availability of vacancy. 5. It has also been contended that the issue of illegal appointment was raised in Vidhan Parishad and thereafter the Commissioner of Welfare Department was authorized to investigate into the matter which led to constitution of a four men committee to investigate into the matter. 6. The committee in its meeting held on 4.1.1999 took decision and authorized the Administrator of the Board to seek explanation from the persons related to illegal appointments after giving opportunity of personal hearing and a show-cause notice was issued. After investigation and thorough verification of papers and explanation and the reply to the show-cause it was found that the appointment of such petitioner and others were illegal and accordingly a second show-cause notice was issued on 29.3.1999, asking for their reply/explanation as to why their appointment be not cancelled. After investigation and thorough verification of papers and explanation and the reply to the show-cause it was found that the appointment of such petitioner and others were illegal and accordingly a second show-cause notice was issued on 29.3.1999, asking for their reply/explanation as to why their appointment be not cancelled. The reply upon scrutiny was not found to be satisfactory and a report was accordingly issued by the Secretary of the State Board before the Chairperson on 17.5.1999 and the petitioners were terminated from service vide impugned order dated 5.5.2003. 7. The law in this regard is well settled that any appointment which has been made by an incompetent authority without any jurisdiction and without following the due process and procedure established by law is ab initio illegal and unsustainable in the eyes of law. 8. The appointment in the instant case was without any advertisement, interview and neither any procedure established by law or the applicable rules were followed. Even otherwise the appointment was made by a person who was not even a competent authority, since only the Board was authorized for such appointment. 9. The Hon'ble Supreme Court has time and again held that all such appointments without following the due process of law is against the constitutional mandate of Articles 14 & 16 of the Constitution of India and the same has to be declared illegal and unsustainable. In any event the petitioners were given full opportunity by issuance of 1st show-cause notice followed by second show-cause notice and thus there was full compliance of the principles of natural justice. 10. Considering the aforesaid facts and circumstance of the case, I find no merit in this writ petition and the same is accordingly dismissed.