Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 1055 (JHR)

Vinod Kumar Pathak v. State of Bihar

2014-10-17

APARESH KUMAR SINGH

body2014
JUDGMENT APARESH KUMAR SINGH, J. 1. It appears that the cause of action of the petitioners falls within the State of Jharkhand, though the impugned order has been passed before bifurcation of State by the Secretary, Primary, Secondary and Adult Education, Government of erstwhile Bihar. The matter has been defended by the State of Jharkhand through their counsel G.P.-V. It appears that the State of Jharkhand, Human Resources Development Department was not earlier impleaded as a party respondent in the present writ application though the prayer made in the writ petition has been contested on the part of the Government of Jharkhand. Therefore, the Human Resources Development Department through its Secretary, Government of Jharkhand is allowed to be impleaded as respondent no. 5 in the instant writ petition, for which necessary correction be carried out by learned counsel appearing on behalf of the petitioners during the course of the day in red ink at the relevant place in the main writ petition. 2. Heard learned counsel for the parties. 3. The issues involved in the present writ application has a pretty long chequered history with several events that have taken place since the petitioners were appointed in the year 1982. Presently, they are aggrieved with an office order contained in Memo dated 6th July, 2000 passed by the Secretary, Secondary, Primary and Adult Education Department, Government of Bihar, Annexure-30. Incidentally it is to be indicated herein itself that the order impugned was passed during the pendency of the Contempt Petition being M.J.C. No. 2352 of 1999 before the Patna High Court and pursuant to opportunity granted to the said Secretary (opposite party therein) vide order dated 04.04.2000 to show compliance of the Court's order in its letter and spirit. The Learned Single Judge was not satisfied that earlier order bearing Memo no. 782 dated 27.03.2000 passed by the same Secretary was in compliance of the judgment as he had chosen not to consider the evidences filed by the petitioners along with their representations in support of their claim that they had filed application in time in the year 1991. 4. In order to determine the present issues, the relevant facts are being noticed herein-below:- 5. The petitioners were appointed in the Elementary Schools by the orders at Annexure-1 series issued by the District Superintendent of Education, Santhal Paraganas, Dumka on different dates such as on 22.05.1982 and on 31.05.1982. 4. In order to determine the present issues, the relevant facts are being noticed herein-below:- 5. The petitioners were appointed in the Elementary Schools by the orders at Annexure-1 series issued by the District Superintendent of Education, Santhal Paraganas, Dumka on different dates such as on 22.05.1982 and on 31.05.1982. Annexure-2 series are documents to show that they had submitted joining in the respective middle schools where they were posted. The appointment of the petitioners and several others were made by the then District Superintendent of Education, Dumka, namely, Hari Narayan Jha. Thereafter, the services of the petitioners were terminated on 22nd December, 1982. The services of other several persons, who were appointed by the same District Superintendent of Education, Dumka, namely, Hari Narain Jha, were also terminated by the Respondent-State. The order of termination of these petitioners was quashed by a judgment dated 16th March, 1983, Annexure-3 with a direction to Director, Primary Education, Bihar to give notices to the petitioners to show cause clearly stating therein the allegation upon which their appointments were sought to be cancelled and fixing time limit for making representations and to decide whether there was any infirmity in their appointments or not? The petitioners' services were again terminated by order dated 30th November, 1987, which was again challenged before Patna High Court. The batch of writ petitions were decided by Division Bench of the Patna High Court through judgment dated 11th August, 1989 at Annexure-5. The operative portion of the judgment rendered by learned Division Bench at paragraphs 9 and 10 are being quoted hereunder for better appreciation: “9. In our view two course are open to this Court, to set aside the orders and to remit the case for a fresh hearing in accordance with law or to adopt the course indicated by the Supreme Court in Special Leave to Appeal (Civil) No. 4746-50 of 1976 in connection with similarly appointed persons as teachers in the Government Basic Schools. 10. On the facts of this case, we observe that persons who are qualified for appointments deserve a consideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified. 10. On the facts of this case, we observe that persons who are qualified for appointments deserve a consideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified. We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools of Santhal Parganas and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of Education and select if they satisfy the eligibility conditions and appoint them. In doing so the Respondent State must relax the age limit in case of any of the petitioners are found to have become over age during the period of service on stipend and removed. The petitioners and/or any other candidate who may be appointed in the vacancy so created on account of removal of the petitioners and other persons appointed by the District Superintendent of Education shall however not claim any benefit of the appointment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law. With the directions as above, these applications are disposed of.” 6. Similar matters went up to Hon'ble Apex Court and in Special Leave to Appeal (Civil) No. 11699 of 1990 vide judgment dated 7th November, 1991, the following order was passed: “Heard Mr. Shanti Bhushan and Mr. P.P. Rai for different sets of petitioners in this group of cases. We have also heard Mr. Singh. Learned Standing Counsel for the State of Bihar-Respondent herein. Petitioners were working as Primary School Teachers in the State of Bihar. The services of many of them have been terminated while some appear to be still working under Court's orders. The High Court has accepted the position that services were terminated on account of improper recruitment but has recorded a positive finding that the petitioners had no responsibility for the situation. In the concluding paragraph there is a direction that the petitioners' case should be screened appropriately and those of them who satisfy the requirements should be recruited. Mr. Shanti Bhusan has relied on an order of this Court in Civil Appeal Nos. In the concluding paragraph there is a direction that the petitioners' case should be screened appropriately and those of them who satisfy the requirements should be recruited. Mr. Shanti Bhusan has relied on an order of this Court in Civil Appeal Nos. 4748-4752/1986 wherein this court stated that the teachers should go back to employment and on the basis of fresh selection the selected teachers should be given full benefit of service. Learned Standing Counsel has relied upon the facts of dismissal of SLP 9611/88 where it is claimed the facts were similar. In these circumstances instead of taking into account the contradictory conclusions reached in these cases we have heard counsel for the parties. We notice that the High Court's direction to the State to hold a fresh selection has become final against the state inasmuch as the State has not challenged that order. We direct that within three months and in any case not beyond 30th June, 1991 the section process contemplated in the High Court's order shall be worked out. In considering the suitability for selection the Rules which were in force at the time the Teachers were recruited should be taken into account and disqualification shall not be imposed on the basis of any altered Rule. It will also be open to the State to consider the claim of Teachers who came after the altered Rules in terms of the Rules in force. The bar of age, we reiterate the direction of the High Court, shall not be used against the Teachers for their selection. Those of the teachers who have served in the past but there has been a break in service on account of termination shall have the credit of past service both in regard to the payment of salary as also seniority and other service benefits. The Education Secretary of the State of Bihar is directed to report compliance of this direction to the Registry of this Court within two weeks of the outer limit. The cases are disposed of accordingly.” 7. As would appear from the directions passed, quoted hereinabove, the Hon'ble Apex Court directed the State Respondent to complete the process of selection contemplated by the High Court's order within a period of 3 months in any case not beyond 30th June, 1991. The cases are disposed of accordingly.” 7. As would appear from the directions passed, quoted hereinabove, the Hon'ble Apex Court directed the State Respondent to complete the process of selection contemplated by the High Court's order within a period of 3 months in any case not beyond 30th June, 1991. The Human Resources Development Department, Government of Bihar issued an advertisement (Annexure-7) asking for applications from such persons who were appointed as teachers in the years 1981-82 and whose services were terminated in a prescribed proforma. The petitioners have enclosed postal receipts as Annexure-8 series to show that they have made application under registered post and also Annexure-25 series being the acknowledgment due received by the petitioners after the envelope was received at the office of the respondents. The respondents also claimed to have obtained copies of the register of the postal department which showed delivery of such envelope containing petitioners' applications. The claim of the petitioners were however rejected on the grounds that no applications were received from them. The petitioners and others preferred a writ petition being CWJC No. 2836 of 1995 being aggrieved by the rejection of their claim on the grounds that they had not applied for appointment in the year 1991. The said writ petition was allowed by giving one more opportunity to the petitioners to make a detailed representation before the Director, Primary Education along with all materials to show that they had applied in terms of the Supreme Court's order in 1991, pursuant to the advertisement. The respondent-Director was directed to consider the representations of the petitioners if made within a period of 1 month, and pass appropriate order keeping in view the Supreme Court's order within a period of 4 months from the date of filing of such representations. With the aforesaid observations and directions, the writ petition was allowed to the extent as indicated above vide judgment dated 26th November, 1998, Annexure-27. Thereafter, the reasoned order was passed by the Secretary, Secondary, Primary and Adult Education, Bihar on 27th March, 2000, which has been referred to in the earlier part of the judgment. 8. With the aforesaid observations and directions, the writ petition was allowed to the extent as indicated above vide judgment dated 26th November, 1998, Annexure-27. Thereafter, the reasoned order was passed by the Secretary, Secondary, Primary and Adult Education, Bihar on 27th March, 2000, which has been referred to in the earlier part of the judgment. 8. The learned Single Judge during the pendency of the contempt case being M.J.C. No. 2352 of 1999 was not satisfied with the said reasoned order and gave opportunity to the Secretary, Human Resources Development Department to pass a fresh order in compliance of the court's order in its letter and spirit, whereafter the impugned order has been passed. 9. Perusal of the impugned order shows that the petitioners had filed 21 documents being Annexures-1 to 21. Annexure-9 was the receipt of postal registration and the certificate of the postal department indicating that the application of petitioner no. 1, namely, Vinod Kumar Pathak was delivered on 27th March, 1991, letter of petitioner no. 3, namely, Suresh Prasad Choudhary was delivered 3rd April, 1991and letter of petitioner no. 4, namely, Ramdeo Prasad Choudhary was delivered on 3rd April, 1991, while there was no mention in respect of petitioner no. 5, namely, Vinay Kumar Mishra. 10. The Secretary, Secondary, Primary and Adult Education, Bihar on perusal of the receipt register found the name of petitioner no. 5 at serial no. 585. It is also recorded that all the petitioners were called for interview vide advertisement published in Newspaper. It was also found that the attendance register of the interview showed the presence of all these petitioners as recorded in different volumes and showing their serial numbers. The name of the petitioners also appeared in the relevant register which recorded their presence for interview and which rendered a finding that their applications were not received on due date in the year 1991. The Respondent-Secretary, Human Resources Development Department, Government of Bihar after considering the aforesaid evidence and the register containing the reasons for rejection of the claim of the petitioners being non-receipt of their applications, found no reason to doubt the correctness of the reasons recorded in the said register by the then Director at the relevant point of time. The Respondent-Secretary, Human Resources Development Department, Government of Bihar after considering the aforesaid evidence and the register containing the reasons for rejection of the claim of the petitioners being non-receipt of their applications, found no reason to doubt the correctness of the reasons recorded in the said register by the then Director at the relevant point of time. In sum and substance, the Respondent-Secretary did not find any reason to disbelieve the findings or reasons recorded in the order of rejection i.e. application of the petitioners were not received in time. At the same time, he did not find any reason to believe the documents which were produced in support of the claim of the petitioners that they had duly made application in time and had also appeared for interview. 11. Learned counsel for the petitioners while assailing the impugned order has also referred to the letter dated 18th January, 1992 at Annexure-10 issued by the Director, Primary Education to the District Superintendent of Education of Dumka/Deoghar/ Sahebganj and Godda, whereunder it was indicated that the candidates who had been called for interview be asked to appear with their relevant documents by issuing individual letters upon them. The documents at Annexure-11 series are such individual letters issued upon the petitioners herein to appear with all relevant certificates of their educational career, their appointment letter, joining letter, claim for any certificate of reserved category etc. It is submitted that when the petitioners had duly appeared for interview admittedly and again were called for with all relevant certificates and documents, the ground for rejection by the Respondent-Secretary is wholly perverse and amounts to overlooking all relevant materials which were produced before him for taking a decision on their representations. Learned counsel for the petitioners has submitted that even though the candidature of another person namely Sitaram Prasad Verma for the district of Sahibganj was also rejected on the same ground of having not made the application within the time as per Annexure-25 at page 227 but the said person has been subsequently appointed by the respondents as would appear from the appointment letter bearing No. 1605 dated 5th July, 1997, Annexure-26 issued by the Deputy Secretary, Department of Secondary, Primary and Adult Education, Government of Bihar. The impugned order, therefore, suffers from non-application of mind and at the same time refusing to consider all relevant materials on record. The impugned order, therefore, suffers from non-application of mind and at the same time refusing to consider all relevant materials on record. Therefore, the claim of the petitioners has been wrongly rejected in an arbitrary and illegal manner which requires to be interfered with. 12. Learned counsel for the State has argued in defence of the impugned order and referred to Annexure-23 i.e. extracts of the register which recorded the reasons for rejection of the claim of the present petitioners on the ground that their applications were not received within time and the petitioners had not made any application as per the advertisement. It has been submitted that impugned order has been passed after due consideration of all the materials produced by the petitioners. 13. Having heard learned counsel for the parties and having considered the submissions, pleadings and documents annexed to the writ application and the counter affidavit filed by the respondents, it appears that the impugned order suffers from non-application of mind by failing to consider all relevant materials which were produced before the Secretary, Primary, Secondary and Adult Education Department, Government of Bihar. The petitioners were required to make applications in a prescribed format as per the advertisement issued pursuant to the directions of the Division Bench of Patna High Court and also Hon'ble Supreme Court vide judgment dated 7th February, 1991. The application form required production of their relevant certificates of educational career, the appointment letters, letters of their joining and such other certificates for making any claim for reservation apart from other usual details of name and address etc. The petitioners produced the postal receipt of making application through registered post and also receipt of acknowledgment due in return thereof. Apart from the aforesaid documents the Respondent-Secretary on perusal and examination of the documents which were part of his official records did find that these petitioners had appeared for interview and their names were reflected in the register as well. These petitioners apparently were again called by different letters contained at Annexur-11 series issued by the District Superintendent of Education, Deoghar in pursuance to the letter dated 19th February, 1992 (Annexure-10) of the Director, Primary Education in order to produce all their relevant documents as they had appeared for interview earlier. These petitioners apparently were again called by different letters contained at Annexur-11 series issued by the District Superintendent of Education, Deoghar in pursuance to the letter dated 19th February, 1992 (Annexure-10) of the Director, Primary Education in order to produce all their relevant documents as they had appeared for interview earlier. The Respondent-Secretary, however, chose to be guided only on the basis of reasons recorded in the register by Director, Primary Education at the relevant point of time, that the petitioners had failed to make any application. The Respondent-Secretary acted on surmises and presumptions while refusing to consider other relevant materials produced by the petitioners including those which were part of official record and letters issued by the department itself as have been referred to hereinabove. It therefore appears that because of such non-application of mind and failure to exercise the administrative powers in a judicious manner, the representations of the petitioners were rejected by the respondent authority on wholly unsustainable grounds. The decision of the administrative authorities are subject to judicial review on the ground available under Wednesbury Principles of reasonableness. If the relevant materials have not been properly considered while passing an order by the Administrative Authority or findings are perverse on the face of it the order so passed is amenable to the judicial review of this Court. The judgment rendered by the Hon'ble Supreme Court in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 on the aforesaid issue, more specific para 77, 80 and 81 are quoted herein-below:- “77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its power? 2. Committed an error of law. 3. Committed a breach of the rules of natural justice. 4. Reached a decision which no reasonable tribunal would have reached. 5. Abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. 5. Abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesday unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention." 80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849850, may be quoted: "4. Wednesbury principle - A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, per Lord Greene, M.R.)" 81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. vs. Bernet London Borough Council, ex p Johnson the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down.” 14. In such circumstances, the impugned order dated 6th July, 2000 cannot be sustained in the eye of law and it is accordingly quashed. The competent authority/respondent no.5, Secretary, Human Resources Development Department, Government of Jharkhand shall take a fresh decision in the matter in accordance with law. Since the issue involved has remained pending for more than 2 dacades, it would only be in fitness of things that an appropriate decision be taken in accordance with law after considering all relevant materials on record within a period of 12 weeks from the date of receipt/production of a copy of this order. Since much time has lapsed after passing of the impugned order, the petitioners are at liberty once again to file their individual representations containing the materials and the documents which were relied upon by them when the impugned order was passed. 15. Accordingly, the writ petition is allowed in the manner and to the extent indicated hereinabove.