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2014 DIGILAW 798 (JHR)

Deep Chandra Verma v. State of Jharkhand

2014-07-30

AMITAV K.GUPTA, R.BANUMATHI

body2014
Order This Letters Patent Appeal is filed against the order dated 03.04.2007 passed in W.P.(S) No. 5416 of 2003 whereby the learned Single Judge dismissed the writ petition and declined to quash the order of termination issued in Memo No.152 dated 06.08.2003. 2. Brief facts :- The name of the appellant and two others were sponsored by the Employment Exchange, district Dumka and the appellant and two others were issued the interview letters and they appeared for interview on 13.05.1990. Vide Memo No.70 dated 23.05.1990, the appellant was appointed on ad-hoc basis as Ayurvedic Compounder against vacant post in the Government Ayurvedic Dispensary Jama, Dumka in the scale of Rs.950-1500/-. He was regularized by order issued vide Memo No. 149 dated 25.10.1991. On the recommendation of the Establishment Committee, the appellant was transferred from Ayurvedic Dispensary, Jama to Ayurvedic Dispensary, Kathikund vide order issued under Memo No.222 dated 09.12.1992. The appellant was given revised scale of pay with effect from 01.01.1996 as is evident from pay fixation statement dated 16.07.1999. Later on, the appellant was transferred to the Government Ayurvedic Dispensary, Putulbona by an order issued under Memo No.155 dated 06.10.2001 and the appellant joined the post on 15.10.2001 and continued in the said post. 3. In connection with the enquiry, the Secretary, Health and Family Welfare Department, Jharkhand, vide his letter No.144 dated 17.07.2002, directed 18 Class III and Class IV employees of Deshi Chikitsa of Dumka district including the appellant to appear before him with all the documents relating to their appointment on 22.07.2002. According to the respondents, inspite of above letter issued, the appellant did not appear before the Secretary, Health and Family Welfare Department and therefore, an order was issued under Memo No.152 dated 06.08.2003 by the Secretary, Health and Family Welfare Department, Jharkhand terminating the services of the appellant and four others holding that their appointment was illegal. The appellant and three others (Birendra Ram Das, Narayan Paswan and Manoj Kumar Verma) have filed writ petitions (the writ petition of the appellant being W.P.(S) No.5416 of 2003) for quashing the order of termination dated 06.08.2003. The appellant and three others (Birendra Ram Das, Narayan Paswan and Manoj Kumar Verma) have filed writ petitions (the writ petition of the appellant being W.P.(S) No.5416 of 2003) for quashing the order of termination dated 06.08.2003. Vide common judgment dated 03.04.2007 the learned Single Judge dismissed all the four writ petitions by referring to Uma Devi Case reported in (2006) 4 SCC 1 and held that the appointment of the appellant and others were illegal appointment and in view of the judgment in Uma Devi’s case the order of termination cannot be said to be illegal. Being aggrieved by the dismissal of the writ petition, the appellant has preferred this Letters Patent Appeal. 4. Heard Mrs. Ritu Kumar the learned counsel appearing for the appellant and Mr. Rakesh Kumar Shahi, J.C. to G.A. appearing for the State. 5. The learned counsel for the appellant has drawn our attention to the judgment passed in the Letters Patent Appeal filed by Narayan Paswan and submitted that as against the common judgment dated 03.04.2007 passed in W.P.(S) No. 5517 of 2004, the Division Bench has allowed the appeal and set aside the judgment passed by the learned Single Judge by holding that before 1996, appointments were generally made and interview letters were issued to those candidates, whose names were registered in the employment exchange and/or sponsored by the employment exchange under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. It was further submitted that the case of the appellant is similarly situated as that of Narayan Paswan and therefore, the learned counsel prayed for allowing of this appeal. 6. The learned counsel for the State of Jharkhand submitted that in spite of several opportunities, the appellant did not choose to appear before the Secretary, Health and Family Welfare Department, Jharkhand along with relevant documents to place his case relating to his appointment and that the appellant knowingly avoided appearance and therefore, the Secretary, Health and Family Welfare Department has rightly passed the order terminating the services of the appellant and the learned Single Judge rightly dismissed the writ petition. It is further submitted that the appointment of the appellant was never approved by the competent authority i.e. State Government in Health Department of Director, Indigenous Medicines and when the initial appointment of the appellant was illegal, the Secretary, Health and Family Welfare Department has rightly terminated the services of the appellant and the same cannot be challenged. 7. As rightly contended by the learned counsel for the appellant, the appellant is similarly situated as that of Narayan Paswan, the appellant in L.P.A. No. 267 of 2007 which was preferred against the same common judgment dated 03.04.2007 passed in W.P.(S) No.5517 of 2004. As pointed out earlier, the name of the appellant was sponsored by the Employment Exchange, Dumka and based on such sponsoring of his name by the employment exchange, interview letter was sent to the appellant and the appellant was initially appointed on ad-hoc basis as Ayurvedic Compounder against vacant post in the Government Ayurvedic Dispensary Jama, Dumka in the scale of Rs.950-1500/-. As pointed out by the Division Bench of this Court in L.P.A. No. 267 of 2007, before 1996, appointments were generally made and interview letters were issued to those candidates, whose names were registered in the employment exchange and/or sponsored by the employment exchange under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 and referring to the judgment of the Hon’ble Supreme Court reported in (1987) 3 SCC 308 (Union of India v. N.Hargopal), the Division Bench has held as under :- 8. From perusal of the order passed by the Secretary, it appear that the services of the appellant was terminated on the ground that the post was not advertised and the appointment was not made by the competent authority. Further reservation and roster clearance was not obtained. It has not been disputed by the respondent/State that the appellant was duly registered in the employment exchange. 9. Before 1996, appointments were generally made and interview letters were issued to those candidates, whose names were registered in the employment exchange and/or sponsored by the employment exchange under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. 10. In the case of “Union of India. Vs. 9. Before 1996, appointments were generally made and interview letters were issued to those candidates, whose names were registered in the employment exchange and/or sponsored by the employment exchange under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. 10. In the case of “Union of India. Vs. N. Hargopal” (1987) 3 SCC-308 the Supreme Court took the view that sponsorship through the medium of employment exchange would not violative of Article 14 and 16 of the Constitution of India and upheld the restriction imposed by the State and Central Government to consider the case of the candidates through medium of employment exchange. However, in the case of “Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and others”(1996) 6 SCC-216, the Supreme Court observed that in addition to the candidates who got registered in the employment exchange, application may also be invited for appointment by publication in the newspaper having wider circulation. It is, therefore, clear that merely because before making appointment applications were not invited by publication in the newspaper will not make the appointment of the appellant illegal, particularly, when the name of the appellant was registered in the employment exchange. So far other grounds are concerned that will not make the appointment of the appellant illegal. There may be some irregularities committed by the respondents in not following other conditions but the fact remains that petitioner-appellant joined in 1993 and, after, he was transferred from one place to another place and also started getting revised pay scale from 1996. It would not be proper to terminate the services of the appellant after continuing in service for more than 10 years. This aspect of the matter has not been considered by the learned Single Judge. The impugned order passed by the Secretary, Health and Family Welfare Department, Government of Jharkhand terminating the services of the appellant cannot be sustained in law. 11. For the aforesaid reasons, this appeal is allowed and the impugned judgment passed by the learned Single Judge is set aside. Consequently, the impugned order passed by the Secretary terminating the services of the appellant is set aside. Appellant is reinstated in service but it is made clear that he should not be entitled to any salary for the period he remained out of service.” We respectfully agree with the view taken by the Division Bench in L.P.A. No. 267 of 2007. Appellant is reinstated in service but it is made clear that he should not be entitled to any salary for the period he remained out of service.” We respectfully agree with the view taken by the Division Bench in L.P.A. No. 267 of 2007. The name of the appellant was also sponsored by the employment exchange and as such, the appellant is similarly situated as that of Narayan Paswan, therefore, the ratio of the above decision is squarely applicable to the case of the appellant also. 8. For the foregoing reasons, the judgment passed by the learned Single Judge in W.P.(S) No. 5416 of 2003 dated 03.04.2007 is set aside and this Letters Patent Appeal is allowed. Consequently the impugned order passed by the Secretary, Health and Family Welfare Department, State of Jharkhand terminating the services of the appellant is set aside. The appellant is ordered to be reinstated in service. It is made clear that the appellant shall not be entitled to any salary for the period he remained out of service. The respondents are directed to comply with the order at an early date, preferably within a period of two months from the date of receipt of copy of this order.