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2014 DIGILAW 406 (JHR)

Baleshwar Prasad Yadav v. State of Jharkhand

2014-03-20

APARESH KUMAR SINGH

body2014
Judgment Heard learned counsel for the parties. 2. The petitioner is aggrieved by the office order contained in Memo No. 1000 dated 01.04.2004 issued by the Additional Secretary, Water Resources Department, Government of Jharkhand, Annexure-5 to the writ petition whereunder his services on the post of Mapak have been terminated after having remained as such on the same post since his appointment vide office order dated 21.03.1989, Annexure-7. 3. The petitioner claims to have been appointed in the category of displaced persons in view of the decision of the Government of Bihar contained in Memo letter no. 156 dated 02.04.1987, Annexure-1/B issued for the purpose of rehabilitation of such displaced persons, who were displaced under the Kosi Project. As per the said decision, the affected/displaced persons falling within the embankment of river kosi would be eligible for appointment to Class-III and IV posts as per certain reservation in the respective categories for such appointment. Pursuant to the said decision, vide Memo No. 335 dated 13.01.1989 office order of the Water Resources Development Department, three Establishment Committees were constituted comprising of officers such as Chief Engineer, In-Charge Superintending Engineer, Executive Engineer and the Rehabilitation Officer as also a committee comprising of Director, Land Acquisition and Rehabilitation, Water Resources Department, Special Land Acquisition Officer, Shaharsa, Executive Magistrate and Rehabilitation Officer, Supaul. 4. According to the petitioner, being displaced person of the Kosi Project, he applied as per notice inviting application pasted on the notice board, which was a special procedure laid down for seeking application from such displaced persons falling under the Kosi Embankment. Vide office order dated 21.03.1989 issued under the signature of Director, Land Acquisition and Rehabilitation, Water Resources Development Department, Government of Bihar he was appointed on the post of Mapak and posted under the Special Land Acquisition Office at Sakri in the scale of Rs.535-785/-on purely temporary basis. 5. The petitioner's service book was opened indicating his date of birth as 13.10.1953 belonging to the Backward Category and the petitioner thereafter served at different places, lastly at the office of Special Land Acquisition Office, Medium Irrigation Project, Deoghar when a show cause dated 13.02.2004, Annexure-3 was issued upon him asking him to show cause as to why his appointment be not revoked as being irregular/illegal. 6. 6. According to the petitioner, the grounds indicated in the show cause notice inter alia were i.e. that order has been issued by the Director, Land Acquisition and Rehabilitation, who has denied issuance of such letter; the said letter has been issued from the confidential section of the office of Director, which is not normal phenomenon. There has been violation of administrative instruction dated 11.06.1986 whereunder such appointments were prohibited; the appointment has been made without issuance of any advertisement or calling their names from the employment exchange and without following the Rules of reservation; such continued irregular engagement cannot be said to have acquired a legal force. The petitioner was asked to reply to the same. Vide Annexure-4 dated 04.03.2004, the petitioner made categorical reply on each of the grounds inter alia stating that the same Director in course of enquiry before the vigilance has accepted issuance of the appointment letter under his signature; the details of the petitioner's father, full address and his displacement certificate etc. were produced before the Establishment Committee before his appointment; in view of the letter dated 02.04.1987 conveying the decision of the Government of Bihar, the administrative instruction dated 11.06.1986 did not have force in respect of appointment of displaced persons falling under the kosi embankment made through recommendation from the establishment committee. The petitioner had submitted his application on being invited to do so through notice pasted on the notice board, as per Government decision dated 30.01.1987 for such appointment of displaced persons. He also stated that he has remained for more than several years and his appointment was earlier enquired and found to be proper by the Secretary, Water Resources Department. Learned counsel for the petitioner submits that in course of enquiry in respect of the genuineness of the persons like the petitioner, the rehabilitation officer, Kosi Project, Supoul has also confirmed vide Annexure-1/A dated 13.01.2001 that 24 persons named therein were in the category of displaced persons with the names of villages and khatiyans also shown as their names. He submits that the another person at serial no. 20 under the same letter namely Baidnath Prasad Yadav, who was also show caused has been reinstated in service vide Annexure-6, office order dated 21.03.2001 after accepting his reply. He submits that the another person at serial no. 20 under the same letter namely Baidnath Prasad Yadav, who was also show caused has been reinstated in service vide Annexure-6, office order dated 21.03.2001 after accepting his reply. However, the petitioner has strangely been discriminated and punished without resorting to any disciplinary proceeding initiated against him in terms of the Civil Services (Classification, Control and Appeal) Rules, 1935. 7. Learned counsel for the petitioner submits that in similar circumstances, the persons appointment on the post of Mapak as also other post by order of Director, Land Acquisition and Rehabilitation as also by Special Land Acquisition Officer pursuant to the same cabinet decision of the Government of Bihar were terminated from the service by several orders some of which were also of the common date to that of the petitioner i.e. 1st April, 2004. These petitioners approached this Court in Batch of writ petitions lead by Nand Kishore Pandey & Others Vrs. The State of Jharkhand along with analogous cases which have been decided in their favour by the judgment rendered by the learned Single Judge reported in 2005 (2) JCR 560 (Jhr.). He has also relied in the case of Gopal Singh Vs. State of Jharkhand & Others reported in 2005(2) JCR 588 (Jhr.) in whose cases also order of termination of the same date i.e. 01.04.2004 issued by the same authority has been quashed. 8. Learned counsel for the petitioner has also referred to the decision rendered by the Patna High Court in the case of Ram Bujhan Yadav and Others Vs. the State of Bihar and Ors. being C.W.J.C. No. 14075 of 2003, upheld in L.P.A. No. 13 of 2005 vide judgment dated 09.11.2006. Thereafter, the matter was remanded to Patna High Court by the Apex Court in Civil Appeal No. 2155 of 2007 whereafter again the impugned order passed against the petitioner in the said case have been quashed by the learned Single Bench of the Patna High Court in C.W.J.C. No. 14075 of 2003 vide judgment dated 14.12.2007 and confirmed in LPA No. 272 of 2008 once again vide judgment dated 12.07.2011. In such circumstances, learned counsel for the petitioner submits that the termination of the petitioner's services is wholly bad in law and the petitioner also deserves parity of treatment with other similarly situated employees whose termination in similar circumstances by the similar impugned order, some are of the same date have been quashed by this Court and also by the Patna High Court. 9. Learned counsel for the respondent-State, however, has opposed the prayer of the petitioner. He submits that the very basis of the appointment of the petitioner i.e. issuance of the appointment letter by the authority i.e. the Director, Land Acquisition has been questioned to which the petitioner had failed to furnish satisfactory reply. It is submitted that the said appointments were made in an irregular and illegal manner from back door in violation of principles of natural justice and no sanctity can be attached to the said appointment, even though the petitioner may have continued for certain length of time. According to the respondents, the author of the impugned order has also been facing prosecution. However, learned counsel for the respondent has not been able to distinguish the judgment, which has been relied by the petitioner specially in the case of Nand Kishore Pandey & Ors. (Supra) in which a number of writ petitions were decided. 10. I have heard learned counsel for the parties and have gone through the relevant materials on record. The facts of the present case have striking resemblance to the facts of the writ petitions being W.P.(S) No. 2333 of 2004 and 2223 of 2004 in the case of Narendra Nath Sharma and Bhubneshwar Mishra respectively, which were together decided in the batch of the writ petitions lead by the Nand Kishore Pandey & Ors reported in 2005(2) JCR 560 (Jhr.) by the learned Single Bench of this Court. In the case of W. P. (S) No. 2333 of 2004, the said person was appointed on 29.03.1989 like the petitioner on the post of Mapak issued by the Director, Land Acquisition and Rehabilitation on the ground of he being the displaced persons in the Kosi Project on the recommendation of the duly establishment committee. The petitioner's service book was also opened and he served at various places till he has served with a show cause notice earlier in 1994 and subsequently a public notice in the year 1998. The petitioner's service book was also opened and he served at various places till he has served with a show cause notice earlier in 1994 and subsequently a public notice in the year 1998. The appointment of the said petitioner was also terminated vide letter dated 01.04.2004 i.e. of the same date that of the present petitioner issued by the respondent department. It further appears that similar pleas have been taken by the respondents while issuing the show cause notice while terminating the services of such persons and others on the ground that the appointments were made through back door without following due procedure of appointment and reservation policy was not followed. It was also contested on their part that the person issuing the appointment letter have no power to appoint and there was bar to appointment in the department. Learned Single Judge of this Court in the said case after considering the submission of the rival parties held as follows:- Para-6 and 7 are quoted hereinbelow:- “6. After hearing the learned counsel for the parties and perusing the relevant records, I find that in all the impugned orders of termination of the petitioner's services, common grounds have been taken that at the relevant time there was bar on such appointment in the department and that the person who issued appointment letters had no authority and that their appointments were made in violation of the prescribed rules and reservation policy. However, there is nothing on record to show that the petitioner's appointments at the relevant time were made against any unsanctioned post or by an authority who had no power. It has been mentioned that at the time of issuance of the appointment letters to the petitioners, the power to make such appointments was withdrawn from the Director of the department. However, no such document withdrawing the power has been brought on record by the respondents. It is also amazing that the appointments made in numbers were not questioned at the initial stage by any authority rather their service books were opened and the petitioners were transferred from one place to other within the State of Bihar. They were paid their salary regularly for more than a decade without any demur. It is also amazing that the appointments made in numbers were not questioned at the initial stage by any authority rather their service books were opened and the petitioners were transferred from one place to other within the State of Bihar. They were paid their salary regularly for more than a decade without any demur. From perusal of the counter affidavit filed in different writ applications, it appears that the respondents were well aware of the nature of the initial appointment of the petitioners but they allowed the petitioners to continuously work for more than a decade. It does not appear to the reason that the question of irregularity in the appointment can be raised at any point of time without any limitation. In the case of Roshni Devi and others, reported in 1998 (8) SCC 59 , the Supreme Court of India applied equity in favour of the persons who were in the service for more than nine years. The Supreme Court of India, invoked equity in case of an irregular appointment and directed not to annul the appointments. In the instant case after about 15-20 years the respondents have sought to terminate the services of the petitioners on the plea that their initial entry was made when there was a bar on appointments. However, it has not been denied that the petitioners have otherwise eligibility and required educational qualification and that they were appointed against the sanctioned vacant post. No such order has been produced to show that there was a stop page on the appointment during the relevant period. It has been held earlier by this Court that the Special Land Acquisition Officer was delegated with the power to make appointment of class III & IV posts. 7. The petitioners were thus retained in the service for along period. They were given their salary fixing their pay scale. Their services were extended by the competent authority including the Director of the department. Their service books were opened. The government even collected their required particulars for the purpose of regularization. The petitioners were transferred from one place to other and in that view after having allowed to remain in service for a considerable length of time, the respondents are estopped from raising the ground of the alleged irregularity after the passage of such a long time. The government even collected their required particulars for the purpose of regularization. The petitioners were transferred from one place to other and in that view after having allowed to remain in service for a considerable length of time, the respondents are estopped from raising the ground of the alleged irregularity after the passage of such a long time. Those irregularities in the initial appointments of the petitioners can be deemed to have been waived by allowing the petitioners to continue in service for such a long time by the competent authority with due notice and knowledge of the nature of their appointments. A valuable right has accrued to the petitioners and that right of livelihood which has now been equated with the right to life under Article 21 of the Constitution of India, cannot be denied and taken away in the manner it has been done. From the records it appears that there was a large number of sanctioned posts. The petitioner's services have not been sought to be terminated on the ground that they are posted against any unsanctioned posts. The case of the petitioners cannot be equated with an appointment made without testing the eligibility or made on any unsanctioned post or by any authority who had no power to appoint. This Court while disposing of similar writ applications (CWJC No. 5692/1998, dated 14.10.99, CWJC No. 6586/98 and other cases) already noticed that the Special Land Acquisition Officer at the relevant time had power to make such appointment and has quashed termination of similarly situated persons. In view of the above, the impugned orders of termination of the petitioner's services issued by the respondents are wholly arbitrary, unjust and illegal and the same are unsustainable. The impugned orders of termination of the petitioner's services i.e. Memo No. 310 dated 3.2.2004 [Annexure-21 to W.P. (S) No. 1658/2004], Memo No. 1733 dated 21.9.2001 [Annexure-8 to W.P. (S) No. 1083/2002], Letter dated 1.4.2004 [Annexure-15 to W.P. (S) No. 2333/2004] and Letter dated 1.4.2004 [Annexure-17 to W.P.(S) No. 2223/2004] are hereby quashed. Consequently, all the petitioners of the aforesaid writ applications stand reinstated on their respective posts without any break in their services with all consequential benefits.” 11. Consequently, all the petitioners of the aforesaid writ applications stand reinstated on their respective posts without any break in their services with all consequential benefits.” 11. In the case of Gopal Singh (Supra) also the order of termination of the same date 01.04.2004 issued by the Additional Secretary, Government of Jharkhand of the said petitioner, who was appointed as Mapak by the order issued by the Director, Land Acquisition and Rehabilitation on 06.01.1989 was quashed by the learned Single Judge holding that there was no legal basis for issuing impugned order of termination. In the present case, the facts, which have been noticed hereinabove shows that the petitioner has been appointed as a displaced person of the Kosi Project by the Director, Land Acquisition and Rehabilitation on the recommendation of the Establishment committee constituted vide memo no. 335 dated 13.01.1989, Annexure-1/C by the Water Resources Department and in view of the decision of the Government of Bihar contained in letter dated 02.04.1987 for the purpose of rehabilitation of such displaced persons affected by the Kosi Project. After having remained in service for almost 15 years, the petitioner has been served with a show cause notice inter alia questioning his appointment. The petitioner also categorically submitted his reply also, said to be accompanied with enclosure which showed that the Director, Land Acquisition had accepted issuance of the appointment letter under his signature. It further appears that in similar circumstances another person namely Baidnath Prasad Yadav was also served with a show cause notice and after acceptance of his reply, he was allowed to be retained in service vide order dated 21.03.2001, which is enclosed as Annexure-6. 12. Having regard to the aforesaid facts and circumstances, since this case of the petitioner does not have any distinguishing features to that of the other petitioners in the judgment rendered in the case of Nand Kishore Pandey & Ors. (Supra), therefore the impugned order passed in the case of the petitioner deserves to be quashed being issued on similar grounds as that of the other persons referred to hereinabove. The instant writ petition also relates to the year 2004 like that of other persons referred to hereinabove. However, it was admitted for hearing on 11.08.2005 itself and has now been heard and decided. The instant writ petition also relates to the year 2004 like that of other persons referred to hereinabove. However, it was admitted for hearing on 11.08.2005 itself and has now been heard and decided. Since the petitioner is able to make out a case as of similarly situated persons, whose termination orders have been quashed earlier by this Court in the judgment referred to hereinabove, the petitioner also deserves parity in treatment. Accordingly, while quashing the impugned order dated 01.04.2004, the petitioner is directed to be reinstated in service. 13. However, since the petitioner has remained out of work since issuance of the impugned order of termination, he would only be entitled to 25% of the back wages for the said period apart from continuity in service for the purpose of seniority, promotion and post retiral benefits. 14. Accordingly, the writ petition is allowed in the aforesaid manner.