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2017 DIGILAW 356 (JHR)

Chandradeo Singh v. The State Of Jharkhand

2017-02-17

S.N.PATHAK

body2017
ORDER Dr. S.N. Pathak, J. – Heard the parties. 2. Though the petitioner has made several prayer but after some arguments, he confined his prayer to the payment of salary for the intervening period from 04.08.2005 to 17.04.2007. Factual Matrix of the case – 3. The petitioner was appointed provisionally as night guard in the pay scale of Rs. 701/280 vide letter No. 178 dated 21.12.1971 issued under the signature of the District Family Planning Officer, District Family Planning Bureau, West Singhbhum, Chaibasa. In pursuant to the advertisement, the petitioner applied for the post of night guard and he was appointed as a night guard on contract basis vide letter No. 7 dated 01.01.1973 issued under the signature of District Family Planning Officer, Chaibasa. It has been stated that the petitioner was promoted as Family Planning Worker from the date of his joining vide office order as contained in Memo No. 20 dated 03.03.1987 issued under the signature of the Civil Surgeon-cum-chief Medical Officer, Hazaribagh. Thereafter, the petitioner served in the department and he is having unblemished service record. It has further been stated that some irregularities were detected in the appointment of the incumbent in the Health Department and as such the Chief Secretary, Bihar Patna vide his letter dated 19.06.1999 directed for an enquiry to be conducted regarding the illegal appointments. Pursuant to the directions, the petitioner''s salary was stopped. The In-charge, Medical Officer, Primary Health Centre, Markacho vide his letter No. 51 dated 05.02.2004 informed the Civil Surgeon-cum-Chief Medical Officer regarding appointment of the petitioner, whereby it was brought to the notice of the Civil Surgeon-cum-Chief Medical Officer that the appointment of the petitioner has been made prior to 01.01.1973. Since the appointment of the petitioner has been made prior to 01.01.1980, the petitioner does not come within the purview of letter No. 696 (22) dated 19.06.1999 issued under the signature of Chief Secretary, Bihar Patna, whereby a full-fledged enquiry was directed to be conducted. Though, his appointment was prior to 01.01.1980 but the petitioner was served with an office order vide Memo No. 27 dated 06.12.2003 under the signature of Chief Surgeon-cum-Chief Medical Officer, Koderma, whereby he has directed that in the light of illegal appointment made on or after 01.01.1980 though out the State Level, Divisional Level and District Level. Though, his appointment was prior to 01.01.1980 but the petitioner was served with an office order vide Memo No. 27 dated 06.12.2003 under the signature of Chief Surgeon-cum-Chief Medical Officer, Koderma, whereby he has directed that in the light of illegal appointment made on or after 01.01.1980 though out the State Level, Divisional Level and District Level. The Enquiry Committee has found the petitioner''s appointment to be illegal, hence, the petitioner was directed to submit an explanation within ten days of the receipt of letter. The petitioner has filed detailed explanation on 12.01.2004 stating therein that the petitioner''s services cannot be terminated on the ground that he was appointed on 21.12.1971 and as such he does not fall within the category of appointment made subsequent to 01.01.1980. In pursuance to the enquiry, the petitioner along with others were terminated from service vide order dated 16.03.2005 as contained in Memo No. 257. The other similarly situated persons challenged the order of termination in WPS Nos. 1561 of 2005 and 1801 of 2005 respectively in the Hon''ble High Court and the Hon''ble Court vide its order dated 15.07.2005 was pleased to quash the office order No. 1257 dated 16.03.2005 with a direction and observation that "in view of the above discussion, these writ applications are allowed; the impugned part of order by which the petitioners'' salary have been stopped and they have been prevented from discharging their duties are quashed. Since the petitioners were illegally and without any reasonable cause prevented from discharging their duties, they are held entitled to get full salary of the intervening period." It is the case of the petitioner that though the joining of similarly situated persons were accepted, the petitioner was prevented from joining and as such, he could not work after the order of termination was quashed by this Hon''ble Court. The petitioner approached several times before the respondents-authorities for payment of salary for the period 16.05.2005 to 03.08.2005 and payment of the said period was allowed by the respondents-authorities. After the aforesaid period, the petitioner was not allowed to join the department. Aggrieved by non-joining in the department, the petitioner made several representations but no order were passed on those representations. Hence, this writ application has been filed in this Court. 4. Mr. After the aforesaid period, the petitioner was not allowed to join the department. Aggrieved by non-joining in the department, the petitioner made several representations but no order were passed on those representations. Hence, this writ application has been filed in this Court. 4. Mr. Kumar Vaibhav, learned counsel appearing on behalf of the petitioner argues that as the termination order of the other similarly situated persons were quashed and they were entitled for joining the post and full salary of the intervening period, the petitioner was also entitled to join the post and full salary of the intervening period. Learned counsel further argues that though the petitioner wanted to work, it was the respondents-authorities, who prevented him from joining the post and as such, he could not work during that period and is entitled for the salary of the intervening period i.e. 04.08.2005 to 17.04.2007. 5. On the other hand, counter-affidavit has been filed by the respondents. Mr. V.K. Rai, learned J.C to S.C.-IV vehemently opposes the prayer of the petitioner and argues that as the petitioner has not worked for the intervening period hence, he is not entitled for any salary of the said period and his case is not similar to the persons, whose termination order was quashed, as after quashing the termination order, they joined the post, whereas the petitioner did not join and filed several writ petitions before this Court and as such, he is not entitled for the salary. Hence, this petition is liable to be dismissed. 6. Having considered the rival submissions of the parties and having gone through the records of the case and the documents annexed in the writ applications, this Court on 23.01.2017 passed an specific order and directing the respondent No. 4 (Civil Surgeon-cum-Chief Medical Officer, Koderma) to explain as to why the Show Cause Notice was issued and under what prevailing circumstances, the orders for payment were passed and subsequently, the respondents have denied the same. It was also stated in the said order that Respondent No. 4 is directed to file specific affidavit, explaining the aforesaid circumstances and the affidavit was to be sworn and filed by the respondent No. 4 and it was stated that if, the averments are found to be false, the Court will be constrained in passing appropriate order against the Officer responsible for filing false affidavit. Today, when the case was taken up, learned counsel for the respondents draws the attention of this Court to the Supplementary Counter Affidavit filed by him, in which it has been stated that the petitioner is not entitled for salary of the said period and directed to Medical Primary Officer to comply the same. A vague reply has been given in the supplementary affidavit rather, instead of complying the order of this Hon''ble Court passed vide order dated 23.01.2017, the respondents have chosen to dupe the court by bringing wrong facts and placing wrong averments in the counter-affidavit. It is very clear from the Annexures-4 and 5 issued that the Civil Surgeon has passed the orders of releasing the salary of the petitioner for the aforesaid period and the said orders were never recalled. 7. This Court is of the view that the petitioner was prevented from joining the aforesaid post and in view of the fact that the termination order of similarly situated persons were quashed and taking into consideration that there was an specific order of the Civil Surgeon for making payment of the salary of the aforesaid period, I hereby direct the respondent No. 4 to immediately release the salary of the aforesaid period i.e. from 04.08.2005 to 17.04.2007 to the petitioner, preferably within a period of 15 days from the date of receipt of a copy of this order, failing which, it will be open to the petitioner to bring to the knowledge of this Court for initiation of contempt proceeding against the erring officials. 8. With the aforesaid observation, this writ petition stands allowed.