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2015 DIGILAW 1370 (JHR)

Asha Kumari v. State of Jharkhand

2015-10-30

PRAMATH PATNAIK

body2015
JUDGMENT : In the accompanied writ application the petitioner has, inter alia, prayed for issuance of writ of certiorari for quashing of the order dated 2.07.2009 passed by the Deputy Commissioner, Deoghar pertaining to termination of services on the post of lady Supervisor and for directions upon the respondents to reinstate the petitioner to the post of lady Supervisor in terms of the contract and pay the salary accordingly. 2. In pursuant to the advertisement published by the office of Deputy Commissioner, Deoghar 30 seats were meant for the post of lady supervisor. The appointment was carried out by the appointment committee and any decision regarding termination was also to be done by the appointment committee. In pursuance to the said selection, the petitioner was appointed on contractual basis to the post of lady supervisor and the contract was signed between the petitioner and the District Programme Officer and terms and conditions were also enshrined in the contract and the contract was for a period of one year and that was the subject to extension on the basis of performance. It was also stated that if the service of the petitioner will not be satisfactory she may be terminated. However, if there is any violation of terms and conditions an appeal could be filed before the Deputy Commissioner. The petitioner continued to discharge her duty to the utmost satisfaction of the authorities. She was also given three extensions but to the utter surprise and consternation the petitioner received a show cause notice from the office of Deputy Commissioner on 28.05.2009. In pursuance to the said show cause the petitioner submitted her defence. But the Deputy Commissioner did not take into consideration the reply submitted by the petitioner and passed a cryptic order dated 02.07.2009 terminating the service of the petitioner. On 25.07.2009 the petitioner filed a review application before the Deputy Commissioner, Deoghar. Being aggrieved by the impugned order of termination dated 02.07.2009, the petitioner having been left with no other efficacious, alternative remedy has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India for redressal of her grievances. 3. Per contra a counter-affidavit has been filed on behalf of the respondents 2 to 4 controverting the averments made in the writ application. 3. Per contra a counter-affidavit has been filed on behalf of the respondents 2 to 4 controverting the averments made in the writ application. In the counter-affidavit it has been submitted that as per the agreement clause if the 2nd party is found negligent in discharging her duty in accordance with the Govt. Circular, in such a case the contract as aforesaid will be come to an end. The petitioner has committed gross negligence in discharging her duty properly which fact has been detected during inspection by the respondent no. 2 and apparently the petitioner has committed such negligence who neither verified the official register of Anganbari Centre Tilouna nor ensured that Poshahar is fairly distributed among the beneficiaries of the Anganbari Centre. Even during the course of said irregularities in the official register detected and on verification it transpired that some of the villagers complained that they were not provided Poshahar and even the signatures of the beneficiaries were not found place in the official register which suggest that actually no verification was made by the writ petitioner at any point of time. The petitioner has never reported such irregularities of Anganbari Centre of Tilauna to any of the authorities which factum clearly proves the malafide move of the petitioner which is apparently the active connivance and collusion with the Anganbari Sevika. The Govt. money has been misappropriated and therefore, the petitioner cannot claim her reinstatement on the said post in any view of the matter. As per the terms of the contract dated 27.12.2005 vide clause 11 wherein it is specifically agreed that in case of violation of any term embodied vide clause no. 1 to 10 above the order passed by the respondent no. 2 will be binding effect on the petitioner. Since the petitioner has violated the terms of contract vide clause no. 10 and in such case the petitioner’s claim is absolutely not tenable. 4. Heard Mr. Prashant Pallav, learned counsel appearing for the petitioner and Md. Jalisur Rahman, learned J.C. to G.P.-III appearing for the respondents. 5. Learned counsel for the petitioner during course of arguments has referred supplementary affidavit dated 24.07.2012 wherein at paragraph 3 and 4 it has been mentioned that the respondents authorities has terminated other lady Supervisor on same and similar ground. Prashant Pallav, learned counsel appearing for the petitioner and Md. Jalisur Rahman, learned J.C. to G.P.-III appearing for the respondents. 5. Learned counsel for the petitioner during course of arguments has referred supplementary affidavit dated 24.07.2012 wherein at paragraph 3 and 4 it has been mentioned that the respondents authorities has terminated other lady Supervisor on same and similar ground. However, the respondents authorities have recalled their order and allowed the joining of one Sharmila Kumari with a warning that she should follow the rules and regulations in future vide order dated 07.05.2010. In another termination order of Snehlata Kumari was also recalled by the respondent authorities by its order dated 10.04.2012. It is also relevant to mention that the order of termination of one Gauri Kumari Choudahry was also recalled by the authority concerned by order dated 07.04.2011. The order dated 07.05.2010, 10.04.2012 and 07.04.2011 have been annexed as Annexures-13, 14 and 15 respectively. Learned counsel for the petitioner has further referred to supplementary counter affidavit dated 30.06.2015 wherein it has been mentioned that allegations against the petitioner was that she had not supervised the record maintained by Sevika wherein there was some irregularities. The petitioner was charged for not properly supervised the irregularities committed by Sevika. The then Deputy Commissioner directed the District Welfare Officer to take action against the Sevika vide letter dated 02.07.2009. and the respondent authorities had terminated the sevika from the service. Thereafter, this Hon’ble Court in W.P.(S) No. 4073 of 2009 vide order dated 17/12/2012, annexed as Annexure-17 to the supplementary counter affidavit, had allowed the petition filed by the Sevika wherein she had challenged the order of her termination. Subsequent, thereto she was also reinstated in her services. The case of the petitioner is on much better footing. It has further been submitted by the counsel for the petitioner that the post over which the petitioner was appointed is still lying vacant. The petition has been dismissed by the Deputy Commissioner, Deoghar who was not having jurisdiction to remove the petitioner and such power is vested in the selection committee, which has power to remove the employee from services. Since, the impugned order has been passed by the Appellate Authority but not by the appointing authority i.e. Selection Committee, the impugned order is also not legally sustainable. 6. Since, the impugned order has been passed by the Appellate Authority but not by the appointing authority i.e. Selection Committee, the impugned order is also not legally sustainable. 6. As against this, learned counsel for the respondents submits that there is no bar specifically contemplated in the appointment letter or advertisement that the respondent no. 2 cannot terminate the service of the lady supervisor rather on the basis of terms and conditions appended in the Contract and in the Government notification, the appointment of the petitioner is liable to be cancelled if she found in not discharging her official duty with utmost care and attention which leads cancellation. Therefore, her appointment has rightly been cancelled in the facts and circumstances. 7. After hearing the learned counsel for the respective parties and on perusal of the records the impugned order has been passed by Deputy Commissioner who had absolutely no jurisdiction to pass the impugned order and therefore the impugned cannot be sustained in the eye of law in view of the judgment dated 30.10.2008 passed in W.P.(S) No. 4568 of 2008 in Nilima Mandal vs. State of Jharkhand and others. Accordingly, the impugned order dated 1055 dated 2.07.2009 is quashed and the matter is remitted to the respondent authorities to consider the case of the petitioner for reinstatement in service in the light of the order passed in Annexure-13, 14 and 15 to the supplementary counter-affidavit dated 24.07.2012 filed by the petitioner, strictly in accordance with law within a period of three months from the date of receipt/communication of copy of this order. 7. Accordingly, with the aforesaid directions the writ petition is disposed of.