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2016 DIGILAW 1130 (JHR)

Moti lal Pandit v. State of Jharkhand

2016-07-25

AMITAV K.GUPTA, D.N.PATEL

body2016
JUDGMENT : D.N.Patel, J. 1. This Letters Patent Appeal has been preferred by the original petitioner of W.P.(S) No. 2359 of 2013 against the order dated 4th March, 2014, vide which, the writ petition preferred by this Appellant was dismissed by the learned Single Judge. Factual Matrix 2. This appellant (original petitioner) was appointed as a Para Teacher in the Upgraded Middle School, Koylabhasha, Fatehpur, Jamtara by the Am Sabha of the said village held on 7th December, 2007 and as submitted by the counsel for the appellant, services of the appellant were duly approved by the authorities with effect from 29th March, 2010. He worked till 17th January, 2013 as the respondent-State stopped taking work from the petitioner with effect from 17th January, 2013 (Annexure 10 to the Memo of the L.P.A.). The writ petition was preferred by the appellant seeking direction upon the respondents for his salary/honorarium. Arguments canvassed by the counsel for the appellant 3. It is submitted by the counsel for the appellant that the appellant was appointed as a Para Teacher in the Upgraded Middle School, Koylabhasha, Fatehpur, Jamtara as per recommendation of the Am Sabha of Village Koylabhasa, Fatehpur, District Jamtara held on 7th December, 2007. He worked as such in the said school and his services have also been duly approved by the Respondent-State. These aspects of the matter were not appreciated by the learned Single Judge while dismissing W.P.(S) No.2359 of 2013, hence, order dated 4th March, 2014 deserves to be quashed and set aside. Arguments canvassed by the counsel for the State 4. Counsel for the State submitted that this appellant (original petitioner) was appointed as a para-teacher, but his services were never approved by the respondent-State. Moreover, this appellant has stopped coming to the place of employment since 28th March, 2009. Thereafter, time and again, enquiry was made by the State authorities and it was found that this appellant was not remaining present at all. He has gone on strike also. Enquiry Report is at Annexure A to the supplementary counter affidavit filed by Respondent No.2 to this Letters patent appeal. As per the said report, even though this appellant was absent, illegally a lump sum amount of Rs. 55,000/- was paid to this appellant. In fact, this appellant has continuously remained absent and therefore, he is not entitled to be reinstated as a Para-Teacher. As per the said report, even though this appellant was absent, illegally a lump sum amount of Rs. 55,000/- was paid to this appellant. In fact, this appellant has continuously remained absent and therefore, he is not entitled to be reinstated as a Para-Teacher. Moreover, the recommendation of Am Sabha of village Koylabhasha, Fatehpur, Jamtara has never been accepted by the respondent-State for the appointment of this appellant. Thus, in absence of an appointment letter and also looking to the fact that voluntarily this appellant has stopped coming to the place of duty from 28th March, 2009, he is not entitled to the salary/honorarium claimed by him. This aspect of the matter was appreciated by the learned Single Judge while dismissing W.P.(S) No. 2359 of 2013 and therefore, this Letters Patent Appeal may not be entertained by this court. Counsel appearing for respondent No. 7 has submitted that this appellant has never remained present in the school and he was absent for a long time. REASONS: 5. Having heard counsel for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (I) This appellant (original petitioner) was appointed as a Para Teacher in the Upgraded Middle School, Koylabhasha, Fatehpur, Jamtara by the Am Sabha of the said village held on 7 th December, 2007. Thereafter, he attended to his duties for some time and later on voluntarily stopped coming to the place of employment from 28th March, 2009 and his services were never approved by the respondent-State. It further appears from Annexure-A to the supplementary counter-affidavit filed by Respondent No.2 in this Letters Patent Appeal that this appellant (original petitioner) worked till 27th March, 2009. Moreover, he has also gone on strike as his services were not approved by the Respondent-State. This appellant voluntarily stopped coming to the school with effect from 28th March, 2009. It further appears that in collusion with the employees of the respondent State, this appellant had managed to get an illegal payment of a lump sum amount Rs. 55,000/- as honorarium. (II) Counsel appearing for the appellant submitted that the salary atleast for the period the appellant attended to his duties may be paid. It further appears that in collusion with the employees of the respondent State, this appellant had managed to get an illegal payment of a lump sum amount Rs. 55,000/- as honorarium. (II) Counsel appearing for the appellant submitted that the salary atleast for the period the appellant attended to his duties may be paid. From the arguments canvassed by counsels appearing for both sides, it appears that services of the appellant was never approved by the respondent-State and therefore, he is not a legally appointed employee and is not entitled to any salary. Once he is not entitled to any salary, at the most he can file a suit for damages and nothing beyond that. Salary can be paid to the employee only. This appellant was never approved as Para-teacher by the State. Therefore, he was not an employee at all. It has been held by the Hon'ble Supreme Court in STATE OF ORISSA AND ANOTHER vs. MAMATA MOHANTY reported in (2011) 3 Supreme Court Cases 436 in para 35 and 36 as under: “Appointment/employment without advertisement 35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in news papers having wide circulation or by announcement in raido and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution........................... 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.” (Emphasis supplied) (III) Be that as it may, but, the fact remain that services of this appellant has never been approved by the respondent-State. Secondly, appellant remained absent from 28th March, 2009. On this aspect of the matter, it is vehemently submitted by the counsel for the appellant that this contention is factually incorrect and counsel for the appellant relied upon few Annexures. Thus, it appears that it is a highly disputed question of fact as to whether the appellant has served the middle school in question nor not. When such a highly disputed fact is involved, we are not inclined to exercise power under Article 226 of the Constitution of India much less in a Letters Patent Appeal. However, in the report at Annexure-A to the supplementary Counter affidavit filed by the Respondent No.2, the Principal-in-Charge of the school has also stated that this appellant has stopped coming to the school since 28th March, 2009. 6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, no error has been committed by the learned Single Judge in dismissing W.P.(S) No. 2359 of 2013, preferred by this appellant (original petitioner) vide order dated 4th March, 2014 and we see no reason to take any other view than what has been taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is therefore dismissed. I.A. No. 5526 of 2015 7. Hence, there is no substance in this Letters Patent Appeal and the same is therefore dismissed. I.A. No. 5526 of 2015 7. In view of dismissal of this Letters Patent Appeal, this interlocutory application also stands disposed of with the liberty reserved with this applicant (Original Respondent No.7) to prefer application before the concerned police station for return of the fixed deposit receipts. I.A. No. 5513 of 2015 8. In view of dismissal of this Letters Patent Appeal, this interlocutory application also stands disposed of. Appeal dismissed.