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2013 DIGILAW 1272 (PAT)

Pradeep Narayan Jha v. State Of Bihar

2013-10-31

SAMARENDRA PRATAP SINGH

body2013
ORAL ORDER 1. Heard counsel for the petitioner and the State. 2. The petitioner prays for quashing of memo no.785 dated 27.4.2011 issued by the Director, Land Acquisition and Rehabilitation, Water Resources Department, respondent no.2, by which he has rejected the representation of the petitioner dated 15.3.2010 against the order of his termination. The petitioner also prays for regularization and reinstatement in service. 3. The facts of the case in brief are that initially the petitioner was appointed on 7.1.1982 on adhoc basis for six months as Chainman by the Special Land Acquisition Officer, Kosi Yojna, Darbhanga. His appointment was further extended on different dates by the Director, Land Acquisition and Rehabilitation. Thereafter, the Departmental Establishment Committee in its meeting dated 24.9.1988 and 29.11.1988 decided to consider the case of promotion of 171 Class-IV employees. The cases of petitioner and others were considered and all the 171 employees figuring in Annexure-2, were promoted as Class III employees vide different notifications. The petitioner was promoted as Typist in the pay scale of Rs.580-860 and was posted at Darbhanga vide memo no.87 (Ga) dated 20.12.1988. On 22.5.1993, a gradation list of Class III employees was published by the Director, Land Acquisition in which the name of the petitioner figured at Sl. No.187. It is the case of the petitioner that he worked continuously without break. 4. It appears that on receipt of complaint, the Land Acquisition Officer began to examine the cases of irregular and illegal appointments. On 17.1.2003, the Petitioner along with other employees were served with show cause notice and in pursuance thereof, the petitioner submitted his reply on 28.1.2003. A second show cause notice was issued to the petitioner on 12.7.2003 by the Director, Land Acquisition without meeting the earlier show cause reply dated 28.1.2003. The Director, Land Acquisition by order dated 7.10.2003 terminated the services of the petitioner. Being aggrieved, the petitioner filed C.W.J.C. No.13642 of 2003. A learned Single Judge by order dated 16.8.2004 stayed the operation of the termination order dated 7.10.2003 and the matter was directed to be placed after disposal of C.W.J.C. No. 1242 of 2003. The said case namely C.W.J.C. No.1242 of 2003 (Pramod Narayan Singh vs State of Bihar & Ors) was dismissed as infructuous. A learned Single Judge by order dated 16.8.2004 stayed the operation of the termination order dated 7.10.2003 and the matter was directed to be placed after disposal of C.W.J.C. No. 1242 of 2003. The said case namely C.W.J.C. No.1242 of 2003 (Pramod Narayan Singh vs State of Bihar & Ors) was dismissed as infructuous. The petitioner’s case namely C.W.J.C. No.13642 of 2003 which was heard along with C.W.J.C. No.1956 of 2003 and other analogous cases too was dismissed as withdrawn by order dated 11.1.2010 (Annexure-13) with liberty to pursue internal remedy. The petitioner has contended that the case of Pramod Naryan Singh was not on similar footing as that of his case as the former was appointed by the Senior Land Acquisition Officer on 26.12.1986 when he was no longer authorized to make appointment. 5. As petitioner’s case was dismissed as withdrawn on 11.1.2010, the respondents issued formal order of termination dated 19.2.2010 (Annexure-14). The petitioner made a detailed representation dated 15.3.2010 (Annexure-15, Page 69) before the Director, Land Acquisition and Rehabilitation and also challenged the order of termination dated 19.2.2010 in C.W.J.C. No.7445 of 2010. The writ was disposed of by this Court by order dated 9.2.2011 (Annexure-19, Page 99) with a direction to the Director., Land Acquisition to consider the representation of the petitioner and pass an appropriate orders. The learned Judge in his order noted the contention of the petitioner that his service history is identical to that of Amrendra Prasad Yadav. However, Respondent no.2 vide order dated 27.4.2011(Annexure-12, Page 104) rejected the representation of the petitioner observing that appointment was illegal. The order dated 27.4.2011 is in challenge in the instant writ application. 6. The petitioner has assailed the impugned order on various grounds. The petitioner submits that he was appointed by the competent authority against sanctioned post and almost all others who were similarly appointed by Special Land Acquisition Officer between 18.2.1978 to 2.12.1983 are still in service. He next states that one Amrendra Prasad Yadav was appointed in the year 1980 also by the same Special Land Acquisition Officer. His service too was terminated vide order dated 24.9.2003 which has been set aside by order dated 30.3.2010 (Annexure-18) vide C.W.J.C. No.7766 of 2003. He next states that one Amrendra Prasad Yadav was appointed in the year 1980 also by the same Special Land Acquisition Officer. His service too was terminated vide order dated 24.9.2003 which has been set aside by order dated 30.3.2010 (Annexure-18) vide C.W.J.C. No.7766 of 2003. The petitioner submits that his case is on better footing as he was appointed on the direction of the Director, Land Acquisition and Rehabilitation (Respondent no.2) and his service too was extended from time to time as that of Mr. Yadav. 7. On the other hand, counsel for the respondents submits that the petitioner was appointed without following the due procedure of law. The case of the petitioner is different from that of Amrendra Prasad Yadav. The petitioner was wrongly given promotion in the year 1988 vide Annexure-3. In any view of the matter, the so-called promotion of the petitioner on the post of Typist was in the nature of a fresh appointment. 8. I have heard counsel for the parties. 9. The Director, Land Acquisition and Rehabilitation, Respondent no.2, in his impugned order (Annexure-21) has admitted that the Special Land Acquisition Officer was competent to make appointment on Class IV posts between 18.2.1978 and 2.12.1983. It is the case of the petitioner that large number of employees in Class IV was appointed by the Special Land Acquisition Officer, Bhagalpur. However, after 2.12.1983, the power of appointment vested solely with the Director, Land Acquisition and Rehabilitation. 10. It appears that the Government vide its notification dated 11.6.1986 took a decision to take step for termination of illegal and irregular appointments made after 1.8.1985 and simultaneously for actions against those officers who made such appointments The petitioner was appointed in the year 1982 much prior to cut off dated of 1.8.1985 and on this count too his case clearly fell beyond the purview of scrutiny. It is petitioner’s case that the government’s decision for institution of Vigilance case was against the person responsible for making such irregular/illegal appointments after 1.8.1985. 11. The contention of the State counsel is that the petitioner cannot claim parity with the case of Amrendra Prasad Yadav as his service was extended from time to time by the Director, Land Acquisition & Rehabilitation and he was subsequently appointed as Junior Accounts Clerk. 12. 11. The contention of the State counsel is that the petitioner cannot claim parity with the case of Amrendra Prasad Yadav as his service was extended from time to time by the Director, Land Acquisition & Rehabilitation and he was subsequently appointed as Junior Accounts Clerk. 12. Counsel for the State next argued that the promotion of the petitioner to the post of Class III too was irregular and in fact it was a fresh appointment. The petitioner would state that all other 8 appointees who were promoted to the Class III post in same transactions by following the same procedure who are all still working. It would appear from perusal of the promotion order (Annexure-3) that it was not a case of fresh appointment rather the service of the petitioner was reckoned from 1982. It is further evident that the petitioner was appointed on the direction of the Director, Land Acquisition & Rehabilitation. The reference of Division Bench order of this Court and Hon’ble Apex Court’s order mentioned in the counter affidavit relates to the employees who were appointed post 1985. 13. It is difficult to agree with the submissions of State counsel. It is not in dispute that the petitioner was appointed on 7.1.1982 on ad hoc basis by the competent authority against the vacant post and that too on the direction of the Director, Land Acquisition & Rehabilitation. The assertion that his services too was extended from time to time is not controverted. In the year 1988, he was promoted on the post of Typist i.e. Class III post along with other employees by the Establishment Committee all other 171 employees who were appointed between 1978 and 1982 are continuing in service except the petitioner. The service of Amrendra Prasad Yadav too was terminated on 24.9.2003 against which he moved this court in C.W.J.C. No.7766 of 2003 which was allowed by this Court by order dated 30.3.2010 (Annexure-18, Page 83). The learned Single Judge in his order noticed that the writ petitioner was appointed on adhoc basis for three months on 9.12.1980 and his service was extended by the Director, Land Acquisition & Rehabilitation from time to time from 9.3.1981 to 31.12.1981 and by order dated 19.4.1993 it was extended till further orders by the Director, Land Acquisition & Rehabilitation and the District Establishment Committee on 20.12.1988 promoted him to the post of Senior Accounts Clerk. Thus, I find that the case of the petitioner is on similar footing as that of Mr. Yadav. 14. Further more, I find that all others appointed similarly between 18.2.1978 to 21.2.1983 by Special Land Acquisition Officer have been retained, whereas petitioner has been subjected to discrimination. To reiterate, at the relevant time, the Special Land Acquisition Officer was vested with power to make appointment. The petitioner was appointed against sanctioned and vacant post. The action of the respondents in adopting a different yard stick in maters of petitioner is violative of equality clause enshrined in Article 14 and 16 of the Constitution of India. In the result, this writ application is allowed and the impugned order dated 27.4.2011 contained in memo no.785 issued by the Director, Land Acquisition and Rehabilitation, respondent no.2 is set aside. The petitioner would be reinstated in service forthwith.