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2015 DIGILAW 831 (JHR)

Archana Kumari v. State of Jharkhand

2015-07-22

APARESH KUMAR SINGH

body2015
ORDER : Heard learned counsel for the parties. 2. The petitioner is a compassionate appointee in place of her mother dying in harness on 1.8.1998 while working on the post of Assistant Teacher in Project High School, Mahuadand, Palamau. The appointment letter was issued on 31.1.2001 in favour of the petitioner as Assistant Teacher, Middle School, Nawatoli, Medninagar, Annexure 2 by the DSE Palamau. A question arose on the legality of appointment of the petitioner on compassionate ground on certain complaints made that the father of the petitioner, namely, Birendra Prasad was also working as an Assistant Engineer in PWD, Daltonganj when the mother of the petitioner died. Therefore, in presence of one working spouse alive petitioner's appointment on compassionate ground was not proper in the eye of law in view of the departmental circular. 3. The petitioner had approached this Court in WP(S) No.478/2007 after an inquiry was initiated by the Deputy Commissioner, Palamau vide Memo No.2880 dated 1.9.2006. During pendency of the said writ petition the District Superintendent of Education, Palamau filed a counter affidavit, which is also enclosed as Annexure 5 to the writ petition. In the said counter affidavit the following sand was taken,which is quoted herein-below: “4. That the instant writ petition has been filed by petitioner for quashing of:- (a) the order issued vide memo No. 2880 dated 01.09.2006 by the Deputy Commissioner, Palamau, by which it was directed to terminate the petitioner from service, alleging that she has been wrongly appointed to the post of Assistant Teacher on compassionate ground, and (b) for direction upon the Respondents to take serious action against private Respondent No.6 as he is working to the post of Assistant Teacher as well as he is also enrolled as an Advocate in Bar Council. Palamau, at Medni Nagar. 5. That the petitioner was appointed to the post of Assistant Teacher on compassionate ground after the death of her mother, namely, Sheela Srivastava, Assistant Teacher, who died in brain hemorrhage, on 01.08.1998. 6. That as per the Certificate issued by the Circle Officer, Mahuadand, Palamu on 13.12.1995 and Sub-Divisional-Officer, on 04.09.1999, petitioner and her another brother and sister were living separately with her mother after the separation of her mother from Late Birendra Prasad, Assistant Engineer, Public Works Department, Daltonganj, Birendra Prasad is the husband of deceased Sheela Srivastava, Assistant Teacher. 7. 6. That as per the Certificate issued by the Circle Officer, Mahuadand, Palamu on 13.12.1995 and Sub-Divisional-Officer, on 04.09.1999, petitioner and her another brother and sister were living separately with her mother after the separation of her mother from Late Birendra Prasad, Assistant Engineer, Public Works Department, Daltonganj, Birendra Prasad is the husband of deceased Sheela Srivastava, Assistant Teacher. 7. That on complaint from the Respondent No. 6 the then Deputy Commissioner, Palamau, has referred the matter to the Government Pleader, Palamau, for legal opinion and after receipt of the legal opinion the impugned order was issued. But on the other hand the Deputy Commissioner, Palamau had also ordered the Additional Collector, Palamau, to make a detailed enquiry in this matter vide letter Non 889(GO) dated 10.04.2007. 8. That in reply to the letter No. 889(GO) dated 10.04.2007 issued by the Deputy Commissioner, Palamau, the Additional Collector, Palamau, has sent an enquiry report to the Deputy Commissioner, Palamau vide letter Non 39 dated 18.01.2008 stating therein that the petitioner has been legally appointed on compassionate ground. 9. That the Officer on Special Duty confidential section of Deputy Commissioner, Palamau has sent a letter to the office of the answering Respondent with the enquiry report of Additional Collector, Palamau and directed to act accordingly. 10. That the petitioner is working to the post of Assistant Teacher in Middle School, Nawatoli, Medini Nagar, Palamau, and on the basis of passing of Teachers Training Examination, she has also been granted the pay scale of Matric trained by order of the answering Respondent issued vide memo No. 2309 dated 18.10.2008. 11. That from the above mentioned facts and circumstances of the case the present writ petition has become infructuous as the confidential Section of the office of Deputy Commissioner, Palamau has accepted that the appointment of the petitioner on compassionate ground is genuine and no any termination letter was issued.” 4. Based upon the aforesaid stand taken by the respondents, the petitioner sought permission to withdraw the writ petition, which was accorded vide judgment dated 17.10.2011, Annexure 6, passed in the said writ petition. Now once again the question relating to legality of appointment on the same ground is opened by the respondent-District Superintendent of Education, Palamau through letter no.219 dated 21.1.2013, which is impugned in the present writ petition as Annexure 8. 5. A counter affidavit has been filed in the matter. Now once again the question relating to legality of appointment on the same ground is opened by the respondent-District Superintendent of Education, Palamau through letter no.219 dated 21.1.2013, which is impugned in the present writ petition as Annexure 8. 5. A counter affidavit has been filed in the matter. The respondents have taken a plea that the petitioner has only been asked to produce the order/decree of any court which would show that the marriage of the petitioner's mother late sheela Srivastava with her father late Birendra Prasad had come to an end at the time she sought compassionate appointment. It is submitted that instead of supplying the relevant documents, she is agitating the issue where only notice has been issued upon her. 6. Counsel for the petitioner submits that the issue has attained finality in view of the specific stand of the respondent-DSE, Palamau brought on record through his counter affidavit in WP(S) No.478/2007, therefore, opening of the same issue again is not legally permissible and proper. 7. I have considered the rival submissions of the parties, in the light of the aforesaid facts of the case. From perusal of the relevant material documents on records including the impugned letter dated 21.1.2013, it appears that the DSE Palamau has also referred to the letter bearing memo no.2880 dated 1.9.2006 as also the inquiry report dated 18.1.2008 and the letter no.889(Go) dated 10.4.2007 of the Additional Collector, Palamau and the Deputy Commissioner Palamau, which were also referred to in the counter affidavit filed on their behalf while taking a legal stand that petitioner has been found to be legally appointed on compassionate ground. It fails to reason as to why such an issue once again have been opened after the respondents had inquired the said matter and given a quietus to the same on the basis of inquiry report and other documents available before them at the relevant point of time. Once the same cause of action ended on account of a specific stand of the respondents themselves based upon which the writ petition was permitted to be withdrawn, it was no longer open to the respondents to rake up the same issue without leave of the Court on the pretext that the earlier stand of the DSE, Palamau was not proper. Therefore, such a course does not appear to be legally sustainable based upon the reasons and discussions made herein-above. Therefore, the impugned letter Annexure 8 bearing memo no.219 dated 21.1.2013 issued by the same respondent-District Superintendent of Education,Palamau cannot be sustained in the eye of law or in fact. Accordingly, it is quashed. 8. This writ petition is allowed in the manner to the extent indicated hereinabove.