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2012 DIGILAW 300 (JHR)

State of Jharkhand v. Anil Kumar

2012-02-29

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
Judgment Heard learned counsel for the parties. 2. The appellant-State is aggrieved against the order passed by the learned Single Judge in W.P (S) No.879/2010 dated 13th July, 2011, by which order of termination of service of the petitioner-respondent dated 23rd July, 1992 had been quashed and respondents-appellants had been directed to reinstate the petitioner in service forthwith (within six weeks from the date of receipt/production of a copy of that order obviously by the writ petitioner before the respondents-appellants). 3. Learned counsel for the appellants submitted that total 83 persons were given appointment on 14th September, 1990 but without following the rules and therefore, their services were terminated, vide order dated 23rd July, 1992. Similar writ petitions were filed before this Court, challenging the order of termination dated 23rd July, 1992, one of which was CWJC No.3740/1993R, which was disposed off by the High Court with permission to writ petitioners to file their representation to the authority concerned. Petitioners of that writ petition submitted their representation, which was rejected. Said rejection order dated 29.4.2003 was challenged in W.P (S) No.1332/2003. Said writ petition, W.P (S) No.1332/2003, was allowed, vide order dated 16.7.2008. A few more were; one contempt petition, M.J.C No.409/1994R, was dismissed by the Division Bench of Patna High Court, vide order dated 21st March, 1995, CWJC No.934/1998R and CWJC No.942/1998R, both of which were dismissed along with CWJC No.945/1998R, vide order date 17th August, 1999 and another CWJC No.1128/1998R was dismissed, vide order dated 5th May, 1999. Against dismissal of one of the writ petitions of similar nature, CWJC No.3818/1999R, L.P.A No.589/2001 was preferred by Santosh Kumar Mandal & Ors., which was dismissed by the Division Bench of this Court, vide order dated 30th June, 2003. Yet another writ petition, W.P (S) No.750/2005 (Dayal Prabhu Mandal Vs. The State of Jharkhand & Ors.) was dismissed on 9th March, 2005. It is submitted that it is true that the appellant-State could not bring this fact to the knowledge of the learned Single Judge and therefore, the learned Single Judge, following the other decision rendered by the Single Benches of this Court, allowed the writ petition of the petitioner-respondent even after a delay of 18 years in filing the writ petition challenging the order of termination of service. 4. 4. Learned counsel for the writ petitioner-respondent submitted that in fact, it is wrong to say that the petitioner was appointed without following the rules but only contention of the State was that sanction of the competent authority was not obtained. It is also submitted that total 83 persons were appointed and services of all persons were terminated by the order dated 23rd July, 1992 and the present status is that out of 83 persons, 40 persons are in service – they may be by virtue of the order passed by the Officers themselves or by virtue of the order passed by this Court or Patna High Court; however, according to the counsel for the State, only 20 persons have been reinstated. Learned counsel for the writ petitioner-respondent further submitted that the learned Single Judge relied upon the binding judgment of this Court delivered in the writ petitions, W.P (S) No.1332/2003 and W.P (S) No.1621/2003. The petitioner-respondent had also placed on record several orders, wherein such applicants-petitioners were granted relief not by only Single Bench but that order was upheld by Division Bench and against the Division Bench order, S.L.P also had been dismissed. The petitioner-respondent placed on record the copies of these orders along with the counter-affidavit. It is submitted that it is a clear case of discrimination for the plain and simple reason that out of the persons, who were appointed by the same method and by the same order and whose services were terminated illegally, 40 persons have been reinstated and are in service and petitioner is being denied the reinstatement. It is also submitted that persons, who approached this Court late, had been denied back-wages and therefore, on account of delay in approaching this Court, at the most back-wages can be denied to the writ petitioner, but reinstatement cannot be denied. It is further submitted that in view of the Division Bench judgment upheld by the Supreme Court also, this Court may not interfere with the impugned order passed by the learned Single Judge. 5. We considered the submissions of the learned counsel for the parties and perused the orders/judgments referred above including the order passed in W.P (S) No.879/2010 dated 13th July, 2011, allowing the writ petition of the writ petitioner, whereby the order of termination had been set aside. 5. We considered the submissions of the learned counsel for the parties and perused the orders/judgments referred above including the order passed in W.P (S) No.879/2010 dated 13th July, 2011, allowing the writ petition of the writ petitioner, whereby the order of termination had been set aside. We also perused the orders/judgments placed on record by the learned counsel for the petitioner-respondent delivered in CWJC No.520/1996R dated 3rd March, 1998; in M.J.C No.560/1998R dated 13th January, 2000, wherein undertaking was given that the respondents would comply with the order of the Court and representation of the employees would be considered, subject to the decision of L.P.A No.439/1998R; in M.J.C No.42/2000R dated 14th March, 2001; judgment passed in W.P (S) No.1332/2003 dated 16th July, 2008, wherein also the writ petition was allowed in a case where the order rejecting the representation of the writ petitioner by the respondents was set aside. The petitioner-respondent also has placed on record the copies of the order dated 27th March, 1995 passed in CWJC No.1846/1993R, allowing the writ petition of the writ petitioner and order passed in L.P.A No.258/1998R dated 4th July, 2002 dismissing the appeal preferred by the State of Bihar; order dated 7th August, 2007 passed in L.P.A No.11/2004, wherein order allowing the writ petition of the writ petitioner was upheld; and order passed by the Supreme Court in S.L.P (C) No.25164/2007 on th January, 2008, whereby special leave to appeal against the order dated 7th August, 2007 passed in L.P.A No.11/2004 was dismissed by the Supreme Court. 6. We need not narrate and give details of other orders but it would be appropriate to mention here that one L.P.A No.319/2009 preferred by the State to challenge the order passed by the learned Single Judge setting aside the order of termination of service of the writ petitioner of that writ petition was upheld by the Division Bench of this Court, vide order dated 10th May, 2010, against which S.L.P (C) No.15029/2010 was dismissed by the Supreme Court, vide order dated st October, 2010 and same thing had happened with other S.L.Ps. 7. It is not in dispute that there are conflicting final orders with respect to the same order of termination of services of various employees by which as many as services of 83 persons had been terminated. 7. It is not in dispute that there are conflicting final orders with respect to the same order of termination of services of various employees by which as many as services of 83 persons had been terminated. From the facts referred above itself, it is clear that the issue was raised forthwith in the year 1993 in the writ petition, CWJC No.3740/1993R by some of the employees before this Court and relief was granted to the employees. The order, which attained finality, was followed by the High Court in subsequent orders and even was upheld by the Division Benches; however, it resulted in endless process of approaching this Court by different employees. It appears from the orders referred and relied upon by the State, the Single Judges in various other cases rejected the challenge to same order of termination of services of such employees and the Division Bench also took the view against such employees and those orders also attained finality. Therefore, there are two sets of such orders in same matter by coordinate Benches of this Court and S.L.Ps against such orders have been dismissed by the Apex Court. 8. So far as the case of the writ petitioner-respondent is concerned, it is required to be examined in the fact backgrounds, which we have narrated above to find out whether the learned Single Judge was right in allowing the writ petition of the writ petitioner, which was filed after a delay of almost 18 years from the date of termination of service of the petitioner, who approached this Court with delay of 18 years, with the plea that similar employees had been reinstated and the plea of the writ petitioner-respondent is that if there is delay, he may not be entitled to back-wages. 9. We are of the considered opinion that the plea of equality based on the constitutional provision of Article 14 of the Constitution can be applied, not blanketly but is required to be applied according to the facts of the case. It is also a settled law that a party sitting over the sense is not entitled to take the benefit of the result of the case which was prosecuted by other parties, which applies with more force, when such person approaches the Court after inordinate delay. It is also a settled law that a party sitting over the sense is not entitled to take the benefit of the result of the case which was prosecuted by other parties, which applies with more force, when such person approaches the Court after inordinate delay. This is a peculiar situation in the present case that there are two conflicting decisions of number of Benches dealing with one issue of termination of service of the persons and both the orders attained finality; therefore, there are two sets of employees – one set got the reinstatement and other set of employees has been denied reinstatement. Now the petitioner wants to challenge the same order but after 18 years from the date of order of termination of his service. Therefore, we have to examine this case according to the facts of this case because it cannot be said that the judgment delivered in the year 1994 or 1997-98 or subsequent to that is required to be followed without noticing the fact that the petitioner's service was terminated in the year 1992 and some of the employees were reinstated by the order of the Court and the petitioner could have taken the benefit of that judgment even in reasonable time. The petitioner, in fact, accepted his termination order as he did not challenge it in reasonable time and wants to become wise because some vigilant employees assailed the same order and succeeded but by this time, i.e., after delay of 18 years when things have settled, not only because of reinstatement of some of the employees in service but by denial of reinstatement to other similarly situated employees. This Court cannot ignore the fact that by virtue of the orders passed by different Benches of this Court, that too by the Divisions Benches, other employees have been denied the same benefit by the order of the Court several years ago and therefore, it cannot be said that the petitioner is being discriminated either by the State or by the order of the Court and the petitioner, who, in fact, might have abandoned his claim under the appointment order dated 14th September, 1990, cannot be allowed to use the orders obtained by others, that too, only which are in his favour and ignore the orders which are not in his favour. Therefore, in this case, we do not find any justification by which the petitioner could have assailed the order dated 23rd July, 1992 after a delay of 18 years and could have claimed the benefit under the orders passed for other employees giving the benefit. In the matter of challenge to the order of termination, the cause of action is not a continuing cause of action as it accrues on the date of termination or of its communication. So far as the allegation of discrimination is concerned, that also cannot be entertained in the peculiar facts and circumstances of this case because large number of employees had been denied reinstatment by the order of this Court itself. Therefore, there must be end of the litigation. 10. We do not find force in the submission of the learned counsel appearing for the writ petitioner-respondent that the petitioner can be reinstated and be denied back-wages because of the plain and simple reason that this deprives a person from appointment who is eligible today to get appointment in accordance with law and the petitioner will get the appointment by virtue of only fact that some of the employees had been reinstated in service, that fact could have been relevant in reasonable time and cannot be held to be relevant after a delay of 18 years. In these peculiar facts and circumstances of this case, we are of the considered opinion that the order passed by the learned Single Judge cannot be sustained and hence, this L.P.A is allowed and the impugned order dated 13th July, 2011 is set aside and the writ petition of the writ petitioner is dismissed.