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Jharkhand High Court · body

2010 DIGILAW 66 (JHR)

Jalsu Khalkho v. State of Jharkhand

2010-01-11

D.N.PATEL

body2010
ORDER : D.N. Patel, J. Learned Counsel for the petitioner has submitted that the petitioner was initially working as a Chain Man, and thereafter, he was appointed as Truck Khalasi, and from 1978, the work of the Driver was taken from the present petitioner, and the salary for the post of Driver was never paid, and therefore, the writ petition bearing C.W.J.C. No. 4324 of 2000 was instituted before the High Court of Patna, Bench at Ranchi, and this writ petition was disposed of by order dated 21.12.2000, whereby a direction was given as under: “Having regard to the facts of the case as stated in the writ petition, I dispose of the same by directing the petitioner to file fresh representation before the Chief Engineer, Minor Irrigation Department, Jharkhand with a copy to the Executive Engineer, Gumla within two weeks from today. If such representation is filed, respondent No. 3 Chief Engineer, Minor Irrigation Department, Jharkhand, Ranchi shall consider and dispose of the same by passing a reasoned order as expeditiously as possible and preferably within a period of two months from the date of filing of representation. 2. Despite the aforesaid direction, no salary was paid for the post of Driver, and therefore, a Cont. (Civil) Case No. 25 of 2004, was instituted. In contempt application, reply given by the respondent that for the post of driver, a license presented by the writ petitioner. Some enquiry was going on about his license, and therefore, the contempt application was disposed of, but, no enquiry has been ended with an enquiry report, and then once again, despite the direction, no salary is being paid, and the representation preferred by the petitioner has been brushed aside by the respondents. 3. The order dated 26th September, 2007, at annexure-14, wherein it has been stated that for giving promotion to the post of Driver, vacancy, seniority, roster, etc. has to be considered and the petitioner has given consent to work as Driver, and therefore, the petitioner's case has been discarded. It is vehemently submitted by the learned Counsel for the petitioner that when the High Court gives a direction to consider the case of the petitioner; meaning thereby to keep in mind all the legalities and the procedure, the case of the petitioner ought to be considered. 4. It is vehemently submitted by the learned Counsel for the petitioner that when the High Court gives a direction to consider the case of the petitioner; meaning thereby to keep in mind all the legalities and the procedure, the case of the petitioner ought to be considered. 4. Looking to the impugned order at Annexure-14, nothing has been considered at all by the Chief Engineer, Minor Irrigation, Ranchi, and by sheer non-application of mind, the petitioner's case has been brushed aside, and therefore, the matter may be remanded for afresh decision in accordance of law, including the vacancy, seniority, roster, rules and regulations and the length of service as rendered by the present petitioner as a Driver. 5. I have heard the learned Counsel appearing on behalf of the respondents, who has submitted that since the petitioner gives a consent to render service voluntarily as a Driver, he is not entitled for the post of driver and the impugned order has been passed by the Chief Engineer at Annexure-14 Dated 26th September, 2007 that Driver is a very high post, and therefore, vacancy, seniority, roster, etc. has to be considered, and therefore, the petitioner has not been given promotion or appointment on the post of the Driver. 6. Having heard the learned Counsels of both the sides, and also looking to the facts and circumstances of the case, I, hereby, quash and set aside the order passed by the Chief Engineer, Minor Irrigation, Ranchi dated 26th September, 2007 at Annexure-14 to the memo of petition merely for the following facts and reasons: (i) The present petitioner was initially working as Chain Man, and thereafter, was appointed as a Truck Khalasi, and thereafter, since 1978, as alleged by the petitioner, he Is working as a Driver. (ii) It appears that thereafter, the writ petition bearing C.W.J.C. No. 4324 of 2000 was instituted by the petitioner before this Court, which was disposed of vide order dated 21st December, 2000, and the relevant portion thereof has been incorporated herein above, and a direction was given that the representation filed by the petitioner be disposed of as expeditiously as possible by the respondents within a period of two months from the date of filing of the representation. Decision has been taken in Sept., 2007 and looking to the impugned order at Annexure-14 dated 26th September, 2007, whereby the Chief Engineer, Minor Irrigation, Ranchi, has brushed aside the claim of the present petitioner mainly on following two rounds: (a) appointing anybody on the post of Driver, vacancy, seniority, roster, etc. has to be considered; (b) as the petitioner has given a consent to work as a Driver, the petitioner cannot be appointed on the post of Driver. 7. The aforesaid two reasons (a) and (b) are no reasons in the eye of law at all. It reflects nothing but the non-application of mind by the Chief Engineer, Minor Irrigation, Ranchi. As vacancy, seniority, roster, etc. are to be considered, is no reason for brushing aside the claim of the present petitioner. Considering all these aspects of the case of the petitioner, Chief Engineer should have decided claim of petition. There is a direction in the earlier writ petition, perhaps the Chief Engineer, Minor Irrigation has failed to read properly the order passed by this Court. 8. I, therefore, quash and set aside the aforesaid order at Annexure-14 passed by the Chief Engineer, Minor Irrigation, Ranchi, and direct the respondent No. 2 to decide the case of the present petitioner mainly on the ground that he is working on the post of Driver since long, efficiently and to the satisfaction of the respondents and never any objection has been raised by the respondents for his work as a Driver. 9. Secondly, keeping in mind the vacancy, seniority, roster, etc. the case of the petitioner will be considered afresh without being influenced by the earlier order passed by the Chief Engineer as well as without being influenced by the order passed by this Court today. 10. Thirdly, the consent given by a Class-IV type of employee will not tantamount to waiving his right of his promotion. Promotion is a right vested in the petitioner and it cannot be brushed aside only on the ground that he is voluntarily working since long on the post of Driver. Voluntary work rendered by the petitioner will, on the contrary, be appreciated by the Secretary that he is an obedient employee, and he is ready to work even without promotion. Such voluntariness should not be equated with the waiver of a fundamental right of an employee. Voluntary work rendered by the petitioner will, on the contrary, be appreciated by the Secretary that he is an obedient employee, and he is ready to work even without promotion. Such voluntariness should not be equated with the waiver of a fundamental right of an employee. Keeping in mind this aspect of the matter, I, hereby, direct the high ranking officer, now to decide the case of the present petitioner for promotion on the post of Driver. Nobody can waive the fundamental right vested in him. Right to be considered on a promotional post is a fundamental right guaranteed by the Constitution. 11. Learned Counsel for the petitioner vehemently argued that it is a fundamental right vested in the petitioner that he has to be treated equally like others for promotion on the post of Driver, and there is a direct violation of this fundamental right vested in the petitioner under Article 14 to be read with Article 16 of the Constitution of India, and therefore, it cannot be waived even if it has been waived in writing. This aspect of the matter shall be considered properly by the Secretary. 12. This writ petition is, hereby, disposed of by quashing the order at Annexure-14 for its fresh decision by the Respondent No. 2, within a period of two months from the date of receipt of the copy of order of this Court.