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2014 DIGILAW 3 (JHR)

Basistha Narayan Singh v. State of Jharkhand

2014-01-02

SHREE CHANDRASHEKHAR

body2014
JUDGMENT : By Court Aggrieved by the order of dismissal dated 04.09.2004, the petitioner has approached this Court. 2. The brief facts of the case as disclosed in the writ petition are that, pursuant to an advertisement, tests were conducted on 25.01.1990 and the petitioner being a successful candidate, was appointed by order dated 30.01.1990 on the post of Constable. By an office order dated 25.02.1997, the Superintendent of Police of different districts in the State were requested to initiate proceeding for termination of services of the petitioner and other seven persons. Pursuant to order dated 25.02.1997, an order was issued on 08.05.1997 for terminating the services of the petitioner and other seven persons. This was challenged in C.W.J.C. No. 811 of 1997 (R) and by order dated 06.05.1998, the order dated 08.05.1997 was quashed by this Court. Again by the office order dated 23.10.2003, a direction was issued for terminating the service of the petitioner and others after issuing show-cause notice. This was again challenged by the petitioner and others in W.P. (S) No. 5299 of 2003, which was disposed of by order dated 07.11.2003. Thereafter, a show-cause notice was issued to the petitioner on 08.07.2004. The petitioner submitted his reply on 14.07.2004 however, it was not found satisfactory and the service of the petitioner was terminated by order dated 04.09.2004. The order of dismissal was communicated vide letter dated 08.09.2004. 3. A counter affidavit has been filed on behalf of Respondent no.6 stating as under: 7. “That it is humbly stated and submitted that the petitioner was appointed in the post of Constable vide office order no. 28/1990 contained in memo no. 158/G.S. dated 29.01.1990 issued by the then Inspector General of Police, Chhotanagpur Zone, Ranchi on temporary basis, which is evident from Annexure1 itself. As per settled rule, the Superintendent of Police is the appointing authority of Constables, but the Inspector General of Police appointed the petitioner. 8. That it is humbly stated and submitted that based on few complaints with regard to irregular appointments in the post of Constables, the Home (Special) Department, Government of Bihar conducted an enquiry and thereupon it was found that certainly some appointments were made without following the norms and provisions of appointment prescribed in the Police Manual or the general rules of appointment by some of the officers. As such, the Director General of Police, Bihar, Patna was directed vide letter no. 4/Aa-100/98 Gri. Aa. 10589 dated 04.09.2000 of the Home (Special) Department, Government of Bihar to cancel those irregular and illegal appointments in accordance with law. In the meantime, the State of Bihar had been bifurcated and the State of Jharkhand came into existence. However, in continuation of the above direction, the Inspector General of Police (Administration), Bihar, Patna vide his letter no. 1046/P2 dated 07.03.2002 informed the Director General of Police, Jharkhand about such irregular and illegal appointments of Constables and requested him to take suitable and appropriate steps against the same at his level. Pursuant thereto, the Deputy Inspector General of Police (Human Rights), Jharkhand, Ranchi directed all the superintendent of Police under the State of Jharkhand to take suitable steps in accordance with law against all such illegally appointed Constables. It is further stated that the appointment of the petitioner was also found irregular and illegal and accordingly, the petitioner was called up on to show cause against his irregular and illegal appointment vide memo no.1709/Sa.Sha. dated 08.07.2004 (Annexure9). Incompliance thereto, the petitioner submitted his show-cause on 14.07.2004 (Annexure10) mentioning inter-alia that he was earlier dismissed from service vide order dated 25.02.1997 against which he preferred CWJC No. 811 of 1997 (R), which was allowed vide order dated 06.05.1998 of this Hon'ble Court and the impugned order was quashed. The petitioner further stated in his show-cause that thereafter he was again removed from service vide order contained in memo no. 1389 dated 23.10.2003 of the Deputy Inspector General of Police (Personnel), Jharkhand, Ranchi and ultimately, filed W.P.(S) No. 5299 of 2003 along with Haridwar Singh and others. The said writ petition was disposed of vide order dated 7.11.2003 (Annexure7) with some directions to the authorities. 9. That it is pertinent to mention herein that the Hon'ble Court disposed of few other similar writ petitions by different orders with some observations. As such, keeping in view the directions of the Hon'ble Court, a fresh notice was given to the Hon'ble Court by the above memo no. 1709/Sa. Sha. dated 8.07.2004 (Annexure9), but the petitioner failed to satisfy the authority because he did not assign any valid or genuine ground for his appointment. As such, keeping in view the directions of the Hon'ble Court, a fresh notice was given to the Hon'ble Court by the above memo no. 1709/Sa. Sha. dated 8.07.2004 (Annexure9), but the petitioner failed to satisfy the authority because he did not assign any valid or genuine ground for his appointment. It is necessary to mention herein that since all the relevant documents of the appointment of the petitioner were available at Ranchi and therefore, no paper or document was required to be called for from the State of Bihar in this regard. The competent authority, thereafter, considered the case of the petitioner cautiously and found that the appointment of the petitioner to the post of Constable irregular and illegal on the following grounds: a) Neither any vacancy for the post of Constable was advertised nor the competent authority called for any application, which is contrary to the rules of Police Manual as well as general rules of appointment. b) Selection Committee was not formed for the selection of the petitioner, which is mandatory for appointment to the post of Constable. On the other hand, he was appointed only on the basis of the recommendation of the then Inspector General of Police, Chhotanagpur Zone, Ranchi. c) Roster and reservation policy of the State government was not followed in his appointment. d) The mandatory physical test (such as run, jump, throw etc.) was not organized for his selection, rather only physical measurement was taken at the instance of the then Inspector General of Police, Chhotanagpur Zone, Ranchi and he was declared selected, which is a violation of prescribed rules. 10. That it is humbly stated and submitted that it is necessary to mention herein that the provisions related to the appointment of a Constable are well defined in Rules 661 (a), (b), (c), 662, 663 (a), (b), (c),(d), 664, Clause 4 Appendix 72 of the Police Manual read with Police Order no. 202/88, but none of them were followed in the case of the petitioner. Due to these irregular and illegal appointments, a number of genuine candidates had suffered. More so, in the present case a fresh notice, was issued to the petitioner pursuant to the direction of this Hon'ble Court and therefore, the petitioner has been rightly dismissed vide Ranchi District Order No. 2144/2004 followed by Training District Order No. 157/2004.” 4. Due to these irregular and illegal appointments, a number of genuine candidates had suffered. More so, in the present case a fresh notice, was issued to the petitioner pursuant to the direction of this Hon'ble Court and therefore, the petitioner has been rightly dismissed vide Ranchi District Order No. 2144/2004 followed by Training District Order No. 157/2004.” 4. Heard counsel for both the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that, though the letter dated 25.02.1997 contains the name of the petitioner, the case of the petitioner is different from others particularly, one Nagendra Chandra. The order passed by the Division Bench of this Court in L.P.A. Nos. 885/2003, 669/2003 and 54/2005 have though been affirmed by the Hon'ble Supreme Court by order dated 28.11.2007, the order passed on 07.11.2003 in respect of the petitioner was not challenged and thus, the order passed in favour of the petitioner on 07.11.2003 has not been interfered with by the Hon'ble Supreme Court. Therefore, the case of the petitioner is different from others, in whose case, the order of dismissal has been affirmed by the Hon'ble Supreme Court. 6. As against the above, Ms. Nehala Shermin, the learned counsel appearing for the respondent State of Jharkhand has contended that the order of appointment of the petitioner was itself illegal, as neither any vacancy was advertised nor any selection committee was constituted. The mandatory physical tests were never conducted in case of the petitioner and therefore, no interference is required by this Court in the order of dismissal dated 04.09.2004. She has also raised a preliminary objection of maintainability of the writ petition on the ground of the alternative remedy of statutory appeal as provided under Rule 851 of the Jharkhand Police Manual. 7. A perusal of order dated 25.02.1997 would disclose that the appointment of the petitioner and other seven persons were directed to be terminated. The case of the petitioner is identically situated with the case of other seven persons, one of them namely, Nagendra Chandra had gone to Supreme Court and the order passed by the Division Bench of this Court has been affirmed by the Hon'ble Supreme Court. The case of the petitioner is identically situated with the case of other seven persons, one of them namely, Nagendra Chandra had gone to Supreme Court and the order passed by the Division Bench of this Court has been affirmed by the Hon'ble Supreme Court. The petitioner was issued a showcause notice on 08.07.2004 and submitted his reply in which, he failed to submit or even indicate that any advertisement was issued calling for applications for appointment on the post of Constable. Admittedly, no physical test was conducted nor any selection committee was constituted and therefore, by order dated 04.09.2004, the service of the petitioner has been terminated. 8. Adverting to the contention raised by the learned counsel appearing for the petitioner that no departmental proceeding was initiated before terminating the service of the petitioner vide order dated 04.09.2004, I am of the opinion that in case of illegal appointment in which the candidate has failed to bring on record any evidence of validity of his appointment, no regular departmental proceeding is required to be conducted by the departmental authorities. The petitioner had been given showcause notice on 08.07.2004 and therefore, this is not a case in which principles of natural justice had not been followed. In “State of Orissa and Anr. Vs. Mamata Mohanty”, reported in (2011) 3 SCC 436 , the Hon'ble Supreme Court has held as under: 37. “It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. 38. The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour.” 9. A right in law exists only and only when it has a lawful origin. 38. The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour.” 9. It is thus well settled that illegal appointments cannot even be regularized. Long duration of holding of post would also not confer any right on the employee. The initial appointment of the petitioner itself has been found illegal. Referring to the judgments referred by the learned counsel appearing for the petitioner reported in (2009) 1 JCR 582 (Jhr) and (2007) 1 JCR 412 (Jhr), I find that those are not the cases of illegal appointment rather, the issues involved in those cases were that the recruitment rules were not followed and therefore, in those cases this Court held that regular departmental proceeding was required to be conducted so as to give a proper opportunity to the delinquent employee. Present is a case in which the appointment of the petitioner itself has been found illegal and therefore, the facts of the present case are entirely different from the facts referred in the judgments noticed hereinbefore. Moreover, the order of termination of other persons has been affirmed by the Hon'ble Supreme Court. 10. In view of the aforesaid, I find no merit in this writ petition. Accordingly, this writ petition is dismissed.