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2014 DIGILAW 1161 (JHR)

Basant Kumar Yadav v. State of Jharkhand

2014-11-27

SUJIT NARAYAN PRASAD

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ORDER 1. The petitioner has preferred the instant writ petition for following reliefs:- (i) For quashing the order dated 15.1.2011 whereby and where under the services of the petitioner has been terminated declaring the compassionate appointment of the petitioner as an illegal appointment. The petitioner has been terminated from service after more than 23 years of services in the post of "Male Warden" (Class-IV) without affording any opportunity of hearing, which is against the Rule of Natural Justice. (ii) For payment of salary of the petitioner since November, 1994 to October, 2009, when the petitioner has continuously worked against Class-IV post at Mohanpur Primary Health Centre at Deoghar. But, in spite of the direction of this Hon'ble Court in CWJC No. 12685 of 1999 (Patna) vide order dated 16.4.2002, whereby it has been directed to the Secretary, Health Department, Government of Jharkhand, Ranchi to enquire the matter and take decision relating to payment of salary of the petitioner within 2 months. But in spite of filing of Contempt application vide No. 505 of 2010 and issuance of notice in contempt matter to the Secretary, Health Department, Government of Jharkhand, Ranchi on 10.12.2010, till date not a single penny has been paid to the petitioner, when an amount of Rs. 9,31,859/- has been sanctioned by the In-charge, Medical Officer, Primary Health Centre, Mohanpur (Deoghar). 2. The learned counsel for the petitioner has submitted that with respect to prayer No. 2 which relates to payment of salary, part salary has been released by virtue of Annexure-B annexed to the counter affidavit and for non-payment of the remaining amount, the petitioner has preferred another writ petition before this Court and as such he is not taking relief sought by him in prayer No. 2. It has been argued by the learned counsel for the petitioner that the petitioner was appointed on 9.1.1986 by the order of the Civil Surgeon-cum-Chief Medical Officer, Dumka. He continued in his service, but his salary was stopped in the month of November, 1994 against which he had preferred a writ petition before this Court in CWJC No. 12685 of 1999 and the same was disposed of vide order dated 16.4.2002 (Annexure-1 to the writ petition). The said order is quoted herein-below:- "The counsel for the petitioner informed that the father of the petitioner died in harness in the year 1973. The said order is quoted herein-below:- "The counsel for the petitioner informed that the father of the petitioner died in harness in the year 1973. If that be so, the guidelines for compassionate appointment having issued for the first time in the year 1977, there was no occasion to appoint the petitioner on compassionate ground. Further, the order of appointment being provisional and temporary, in nature and subject to approval of Deputy Commissioner, Deoghar, the petitioner cannot derive any advantage to continue against the post. However, in view of the fact that the petitioner claims to be working and the respondents having not finalised the matter, the case is remitted to the competent authority for decision. In view of reorganisation of State, the petitioner is given liberty to approach the Secretary, Health Department, Government of Jharkhand, who will enquire the matter from the Civil Surgeon-cum-Chief Medical Officer and will take decision relating to payment of salary within two months from the date of receipt of representation. It will be open to the Respondents to raise the question of legality and propriety of appointment, if found to be illegal. The writ petition stands disposed of." 3. It has been submitted on behalf of the petitioner that in terms of the order dated 16.4.2002, he had preferred a representation before the concerned authority for releasing arrears of salary and the said representations has been filed by the petitioner way back in the year 2002 but no decision was taken by the authorities concerned for payment of arrears of salary. 4. The decision has been taken on 15.1.2011 by which the petitioner's appointment has been held to be illegal and against the law and as such the same has been cancelled but however the direction has been given to release the arrears of salary for the period for which the petitioner had actually performed his duty. 5. The learned counsel for the petitioner submitted that the petitioner has since been appointed on compassionate ground, this Court vide order dated 16.4.2002 had given liberty to the respondents to raise the question of legality and propriety of appointment, if found to be illegal. 5. The learned counsel for the petitioner submitted that the petitioner has since been appointed on compassionate ground, this Court vide order dated 16.4.2002 had given liberty to the respondents to raise the question of legality and propriety of appointment, if found to be illegal. By quoting this observation of this Court, it has been submitted on behalf of the counsel for the petitioner that before declaring the appointment of the petitioner has been held to be illegal and against law, no proper notice has been given to the petitioner to explain as to on what basis the appointment of the petitioner has been declared illegal and against law. It has further been submitted that the petitioner has since been terminated from his duty since the date of removal i.e. on 15.1.2011 as such he has been terminated from service after more than 23 years of service and as such the minimum requirement of principle of natural justice have not been followed by the authorities concerned. 6. It has further been submitted by the learned counsel for the petitioner that the court had given liberty to raise the question of legality and propriety of appointment and since the authorities has reached to the conclusion of appointment of the petitioner, was found to be illegal then the same ought to have been done by way of proper Enquiry. Hence, it has been submitted that the authority has not followed the specific observation in the order passed in CWJC No. 12685 of 1999. 7. On the other hand, learned counsel for the respondents-State has submitted that in the order dated 16.4.2002, this Court had made an observation which is quoted herein-below:- "It will be open to the Respondents to raise the question of legality and propriety of appointment, if found to be illegal." In the light of the said observation, the learned counsel for the respondents-State has submitted that in view of said observation, the appointment of the petitioner since been found to be illegal and as such the impugned order has rightly been passed against the petitioner. Hence, there is no need to interfere in this case. 8. Heard the learned counsel for the parties. 9. The petitioner admittedly was appointed in the year 1986 on compassionate ground. Hence, there is no need to interfere in this case. 8. Heard the learned counsel for the parties. 9. The petitioner admittedly was appointed in the year 1986 on compassionate ground. This Court in the order dated 16.4.2002, observed that the father of the petitioner had died in harness in the year 1973 and the guidelines for compassionate appointment was issued for the first time in the year 1977 as such there was no occasion to appoint the petitioner on compassionate ground. Further, the order of appointment was provisional and temporary, in nature and subject to approval of Deputy Commissioner, Deoghar. But this observation, in my view ought to have been read out by the respondents-State along with the other part of the order i.e. it will be open to the respondents to raise the question of legality and propriety of appointment, if found to be illegal. 10. It is the fact that this Court had made certain observation with respect to the legality/ illegality and propriety of appointment. But, this Court has taken into consideration the fact giving respondents to raise the question of legality/illegality of appointment of the petitioner, if found to be illegal. 11. Hence, in view of the fact that when the authorities reached to the conclusion that the appointment has been found to be illegal then certainly an issue ought to have been raised by the respondents by issuing a show-cause to the petitioner before removing him from his service. But from perusal of the impugned order dated 15.1.2011, no show cause notice has been issued to the petitioner. 12. Further in the impugned order dated 15.1.2011, although the same has been decided in terms of the order dated 16.4.2002 for payment of the arrears of salary, directing to release the arrears of salary for the period for which petitioner has performed his duty. But it was not correct on the part of the respondents to take decision of the cancellation of appointment of the petitioner because of the reason that before cancelling the appointment even show-cause notice was not issued to the petitioner. Hence, minimum requirement of the principle of natural justice ought to have been followed. 13. But it was not correct on the part of the respondents to take decision of the cancellation of appointment of the petitioner because of the reason that before cancelling the appointment even show-cause notice was not issued to the petitioner. Hence, minimum requirement of the principle of natural justice ought to have been followed. 13. In this regard, the judgment delivered by the Apex Court in case of Biecco Lawrie Limited & Another vs. State of West Bengal and Another, (2009) 10 SCC 32 in worth quoting wherein Apex Court held that the principles of natural justice are attracted whenever a person suffers a civil consequences or a prejudice is caused to him by an administrative action. At Para 18 Apex Court held as follows:- "The principle of natural justice is attracted whenever a person suffers a civil consequence or a prejudice is caused to him by an administrative action. In other words principle of natural justice is attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation." 14. In the instant case the respondents took the service of the petitioner and after 23 years, the petitioner was terminated from his service without providing an opportunity of being heard. 15. Hence, the impugned order by which the appointment of the petitioner has been cancelled, is not sustainable in the eyes of law and the same is hereby quashed. 16. The matter is remitted to the competent authority i.e. Principal Secretary, Department of Health, Education and Family Welfare, Government of Jharkhand to take decision after providing an opportunity of being heard to the petitioner within a reasonable period preferably within a period of six months from the date of receipt of the copy of the order and communicate the same to the petitioner. 17. Hence, the instant writ petition stands disposed of.