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2009 DIGILAW 632 (JHR)

Chandra Shushan Singh v. Central Coalfields Ltd.

2009-04-28

D.N.PATEL

body2009
Order This writ petition has been preferred mainly against the order passed by Personnel Manager of the respondents dated 31st of January, 2009 (Armexure-4) whereby the selection order of the petitioners dated 31st of March, 2008 (Annexure-3) has been kept in abeyance for no valid reason and an arbitrary order has been passed at Annexure-4 dated 31st of January, 2009. 2. I have heard learned counsel for the petitioners who has submitted that petitioners were selected on the post of Pitman/Dumpman with effect from 31st of March, 2008. It is also submitted by the learned counsel for the) petitioners that they were selected for the first time on 31st of March, 2008, but, a wrong phraseology was used by the Personnel Manager of Sirsa Project while giving appointment letters dated 31st of March, 2008 (Annexure-3) that the petitioners are hereby regularised as Pitman/Dumpman, Grade III. In fact petitioners were appointed on the post of Pitman/Dumpman, but, they have used the word in the appointment letter "petitioners are regularised as Pitman Dumpman Grade-III". This wrong phraseology used in appointment letters has lead to another order dated 31st of January, 2009 (Annexure-4) that as there was no selection an the past of Pitman/Dumpman Grade-III, the order passed at Annexure- 3 was kept in abeyance. 3. Dispute of the present petitioners is that, in fact, the earlier order at Annexure-3 dated 31st of March, 2008 was never a regularization, but, it was a selection of the petitioners on the past of Pitman/Dumpman Grade-III and therefore, the order passed at Annexure-4, dated 31st of January, 2008 deserves to be quashed and set aside. The said order had passed under misconception of fact and it was never a regularisation on 31st of March, 2008, but, there was a selection itself. It is also. submitted by the learned counsel far the petitioners that selection of the present petitioners has not been cancelled because of mistaken selection or illegal selection or unautharized selection, but, as the ward used in the selection order now petitioners are regularised as Pitman/Dumpman" in order dated 31st of March, 2008 (Annexure-3), has led to another order' at Annexure-4 (which is impugned order). Thus, an order at Annexure-4 deserves to be quashed and set aside. 4. I have heard learned counsel far the respondents who has submitted that he has gat instructions to. Thus, an order at Annexure-4 deserves to be quashed and set aside. 4. I have heard learned counsel far the respondents who has submitted that he has gat instructions to. the effect that there was never a selection of the present petitioners an the past of Pitman/Dumpman Grade-III and therefore, they can never be regularised on the said post and therefore, the order at Annexure-3, dated 31st March, 2008 was kept in abeyance and the order dated 31st of January, 2009 (Annexure-4) is not illegal and no error has been committed by the respondents and therefore, the petition deserves to be dismissed. 5. Having heard learned counsel far bath sides and looking to the facts and circumstances of the case, it appears that:- (I) the present petitioners were firstly appointed on the post of Pitman/Dumpman vide office order dated 31st of March, 2008 (Annexure-3) issued by the concerned respondents. (ii) there is a mistaken phraseology used by the Personnel Manager, Birsa Project though the petitioners were selected for the first time an 31st March, 2008 an the past of Pitman/ Dumpman. The ward used in the office order at Annexure-3 is "petitioners are regularised as Pitman/Dumpman Grade- III", but, in fact they were selected far the first time on 31st March, 2008. This aspect of the matter has not been properly appreciated while passing the impugned order dated 31st January, 2009 at (Annexure-4 to. the memo. of the present petition). (iii) while passing an order at Annexure-4, the reason given by the Personnel Manager, Birsa Project that as there was no. selection of the petitioners, there cannot be a regularization. Learned counsel far the petitioners submitted that this is an error, committed in drafting an appointment letters of the petitioners, but, looking to the order of selection at Annexure-3 instead of ward 'regularised' the Personnel Manager aught to have used the ward 'selection' as Pitman/Dumpman. Thus, because of a word 'regularised' in the appointment letters, the impugned order has been passed at Annexure-4. The petitioners were first appointed on 31st of March, 2008 as Pitman/Dumpman Grade-III. They were selected by the Selection' Committee as stated by the learned counsel far the petitioners. This aspect of the matter has not been appreciated while passing the impugned order at Annexure-4 to the memo of the petition. The petitioners were first appointed on 31st of March, 2008 as Pitman/Dumpman Grade-III. They were selected by the Selection' Committee as stated by the learned counsel far the petitioners. This aspect of the matter has not been appreciated while passing the impugned order at Annexure-4 to the memo of the petition. (iv) it is not a case of the re span dents that the selection of the present petitioners was de hors the procedure established by law. It is not a case of the respondents that petitioners were wrongly selected. It is not an allegation of the respondents that the petitioners are not properly working an the post of Pitman/Dumpman Grade-III. There is no allegation so far as their selection process is concerned and so far as their work is concerned. In fact the order passed at Annexure-4 is a non-speaking order. No reason has been assigned in order at Annexure-4. By counter affidavit of respondents, no reasons can be supplied to an impugned order. Bad order remains bad, otherwise, every non-speaking or unreasoned order will become speaking order or reasoned order as it gets older, by subsequent affidavits. In other words, reasons cannot be supplied by counter affidavit, to a non-speaking order affidavit-reasons, given subsequently cannot make a bad order, better. The petitioners have worked after 31st March, 2008 for several months and it is submitted by the learned counsel for the petitioners that even today, they are working on the said post. An arbitrary and a non-speaking order has been passed at Annexure-4, It is the learned counsel for the respondents who is giving the reasons for passing an order at Annexure-4, upon instructions given by the Personnel Manager, Birsa Project, but, it ought to have been kept in mind the fact that non-speaking order or unreasoned order or a mistaken order cannot be rectified by any affidavit nor can be rectified by the arguments of the learned counsel for the respondents. The order remains as it is. By affidavit no reason can be supplied to a non-speaking order. 6. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside an order at Annexure-4 dated 31st of January, 2009. Accordingly, the petition is allowed to the aforesaid extent with no order as to costs.