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2015 DIGILAW 1517 (JHR)

Kritya Nand Mandal v. State of Jharkhand

2015-12-07

RONGON MUKHOPADHYAY

body2015
JUDGMENT : In this writ application, the original prayer of the petitioner was for a direction upon the respondents to reinstate/reappoint the petitioner in service and to give him all consequential benefits by taking into account the fact that the service of the petitioner as assistant is similar to respondent no. 6, who was also terminated for the same and similar charges and has subsequently been appointed. 2. An amendment application bearing I.A. No. 3076 of 2010 was preferred by the petitioner seeking amendment in the writ application, which was allowed vide order dated 7.11.2012 and consequent to the same, the further prayer, which has been incorporated in the amended writ application, is for a direction upon the respondents to quash the order dated 7.12.1993 as contained in Annexure-2, by which the services of the petitioner was terminated. 3. The fact in brief is that the petitioner was appointed as office assistant in Sahebganj District in terms of an advertisement and was posted and transferred to different place in the said district. The appointment of the petitioner and others was cancelled by the Director of Education, Bihar, Patna as contained in Memo No. 1398/Patna dated 7.12.1993 as being irregular and illegal since the due process of such appointment was not followed. The petitioner along with Om Prakash Mandal and Jai Prakash Singh, who were similarly situated to the petitioner, had challenged the order of termination dated 7.12.1993 in CWJC No. 4278 of 1994, in which considering the specific statements made in paragraphs 5 and 8 of the second supplementary counter affidavit, the writ application was disposed of. However, it was indicated in the said order that if the persons mentioned in paragraphs 24 to 26 of the writ application, have been allowed to draw their salary, it will be open for the petitioner to bring this fact to the notice of the Court. After the order dated 11.10.1996 was passed in CWJC No. 4278 of 1994, the services of respondent no. 6 was terminated vide order dated 27.05.2000 as contained in Memo No. 437. Against the said order of termination, the respondent no. 6 preferred a writ application being CWJC No. 1752 of 2011, which was disposed of on 10.03.2003 by quashing the order of termination. 6 was terminated vide order dated 27.05.2000 as contained in Memo No. 437. Against the said order of termination, the respondent no. 6 preferred a writ application being CWJC No. 1752 of 2011, which was disposed of on 10.03.2003 by quashing the order of termination. A letters patent appeal was preferred by the State being L.P.A. No.397 of 2003, which was, however, disposed of with a direction that the order of reinstatement of respondent no. 6 be passed within two weeks. Special Leave Petition being S.L.P. No. 18356 of 2005 was preferred before the Hon'ble Supreme Court by the State, which was, however, dismissed on 12.09.2005. The writ petitioner had again moved this Court in WPS No. 4738 of 2002, in which an order was passed on 18.07.2003 giving a direction to the respondents to take appropriate steps for filling up the vacant post. A contempt application followed, which was, however, dismissed vide order dated 22.03.2010. 4. Heard Mr. Rajiv Ranjan, learned senior counsel for the petitioner and Mr. Arbind Kumar, learned J.C. to G.P. II. 5. It has been submitted by the learned senior counsel for the petitioner that the case of the petitioner and respondent no. 6 is identical and since the respondent no. 6 has already been reinstated pursuant to the order passed by this Court in CWJC No. 1752 of 2001, the petitioner also deserves equal treatment of reinstatement. It has further been submitted that the services of several assistants similarly situated to that of the petitioner, was terminated vide Memo No. 2020-2029 dated 15.04.1997 and whereas several persons have been reinstated but the petitioner has been deprived from continuing in service. Referring to the supplementary affidavit filed by the petitioner, learned senior counsel has submitted that in similar circumstances considering the order passed in the case of respondent no. 6, another employee being Uma Shankar Singh had preferred a writ application being CWJC No. 5199 of 1996 P, which was dismissed on 1.5.2008 but in LPA No. 255 of 2008 preferred by the said employee, the order of termination dated 7.12.1993 was quashed and set aside. It has, therefore, been submitted that the case of the petitioner being similar to that of respondent no. 6 as well as Uma Shankar Singh deserves the same treatment and the respondents be directed to reinstate the petitioner in service. 6. It has, therefore, been submitted that the case of the petitioner being similar to that of respondent no. 6 as well as Uma Shankar Singh deserves the same treatment and the respondents be directed to reinstate the petitioner in service. 6. Countering the arguments advanced by the learned senior counsel for the petitioner, Mr.Arbind Kumar, learned J.C. to G.P. II, has stated that the petitioner cannot equate his case with that of Sadanand Thakur (respondent no. 6) since respondent no. 6 was appointed in the district of Deoghar, whereas the writ petitioner was appointed in Sahebganj-Pakur district, where no vacancy exists. 7. It has been submitted that after the order was passed in WPS No. 4738 of 2002, no regular appointment has been made but only compassionate appointment has been made after considering the recommendation of the District Compassionate Committee. It has further been submitted that the petitioner has approached this Court after a considerable delay and no reasonable explanation has been given in challenging the order of termination dated 7.12.1993 after 17 years. Learned counsel further submits that since the appointment of the petitioner was itself illegal, the same cannot be regularized, as no right would be conferred upon the petitioner only on account of his continuing with such appointment for a long duration. 8. From the arguments, which have been advanced by both the counsel, it appears that the main plank, on which the claim of the petitioner is based, is the order passed in the case of Sadanand Thakur and the subsequent order passed in LPA No. 255 of 2008 in the case of Uma Shankar Singh. The submission of learned senior counsel for the petitioner of giving equal treatment to the petitioner since his case stands on similar footing to that of respondent no. 6 and Uma Shankar Singh has been vehemently countered by the learned J.C. to G.P. II. It appears that the petitioner had earlier approached this Court on three occasions and on being unsuccessful each time, the petitioner has preferred the present writ application. It further appears that the petitioner's approach has been in fits and starts and there is no consistency with respect to his filing writ applications immediately on arising of the cause of action. It appears that the petitioner had earlier approached this Court on three occasions and on being unsuccessful each time, the petitioner has preferred the present writ application. It further appears that the petitioner's approach has been in fits and starts and there is no consistency with respect to his filing writ applications immediately on arising of the cause of action. The petitioner as it seems after his appointment was cancelled along with 18 other persons as being illegally and irregularly appointed had preferred a writ application in the year 1994, which was disposed of on 11.10.1996 giving certain directions. Taking a sabbatical for about 8 years, the petitioner once again approached this Court in WPS No. 4738 of 2002, which was also disposed of in the following terms:- "Although at the instance of the petitioner, no mandamus can be issued to the government but the fact remains that when the regular vacancy are available in the said districts then respondents should take appropriate steps for filling of those vacant posts in accordance with the due process". 9. A contempt application, which was preferred by the petitioner was also dismissed as the direction of the Court had been substantially complied with. All these exercises would go to indicate that the order of termination dated 7.12.1993 was under consideration by this Court on several occasions. The petitioner had pursued his case with a renewed vigour after the writ application preferred by the respondent no. 6 was allowed and was affirmed up to Hon'ble Supreme Court. The writ application on behalf of respondent no. 6 was allowed on 10.03.2003 and in the year 2010, the petitioner has once again approached this Court through the present writ application. In the order dated 26.04.2012, passed in LPA No. 255 of 2008 (Uma Shankar Singh Vs. State of Jharkhand & Others), one of the important factors, which was considered by the Hon'ble Division Bench was that the petitioner had approached the Court in time. The Hon'ble Division Bench had clearly held as follows:- "It appears from the impugned order dated 1st May, 2008 that judgment of Sadanand Thakur was not brought to the knowledge of the learned Single Judge. The Hon'ble Division Bench had clearly held as follows:- "It appears from the impugned order dated 1st May, 2008 that judgment of Sadanand Thakur was not brought to the knowledge of the learned Single Judge. Be that as it may be, in the Sadanand Thakur's case, which has been challenged by the Stated but the State failed in that and question of validity of appointment of such candidates has already subject matter in earlier round of litigation. The petitioner also approached this Court in time but time was consumed in litigation and the petitioner was not fortunate as were others. The petitioner was duly selected in a process started by issuing an advertisement and therefore selected in a fair competition. He was given appointment and thereafter, his case was again considered by a competent committee i.e., Divisional Establishment Committee on 6.12.1989 and regularized, which is two years after the appointment of writ petitioner. Thereafter, admittedly his service has been terminated without enquiry and giving any opportunity of hearing to the writ petitioner. Therefore, all illegalities have been committed in passing the order dated 07.12.1993." 10. The petitioner as has been discussed above has not been very diligent in pursuing his case as after seven years from the disposal of the case of respondent no. 6, the petitioner has challenged the order of termination dated 7.12.1993. Neither can the petitioner equate his case with that of respondent no. 6 nor can he do so with the case of Uma Shankar Singh (supra) as in both the cases referred the concerned petitioner had approached this Court without any delay. In the earlier round of litigation in WPS No. 4738 of 2002, it was clearly indicated that at the instance of the petitioner, no mandamus can be issued to the government. Therefore, the contentious issue with respect to the order of termination of the petitioner was under consideration by this Court at the instance of the petitioner on earlier occasions and therefore this Court would not be inclined to interfere with the order of termination dated 7.12.1993 as the same would virtually amount to review of the earlier orders passed by this Court. Moreover, as has been indicated above, there has been an apparent delay and laches on the part of the petitioner in approaching this Court within a reasonable time, which distinguishes the case of the petitioner with that of respondent no. Moreover, as has been indicated above, there has been an apparent delay and laches on the part of the petitioner in approaching this Court within a reasonable time, which distinguishes the case of the petitioner with that of respondent no. 6 and Uma Shankar Singh as there was no delay on their part in approaching this Court with their grievance. 11. Considering the entire facets of the case, discussed above, I do not find any merit in this writ application, which is, accordingly, dismissed.