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2018 DIGILAW 1650 (JHR)

Anil Kumar Jha v. State of Jharkhand

2018-07-27

S.N.PATHAK

body2018
ORDER : The petitioner has approached this Court for quashing the order dated 02.02.2018 passed by respondent No.4, the Deputy Commissioner, Deoghar, whereby, all the benefits which have been given to the petitioner since 2003 on account of passing of Hindi Noting and Drafting Examination held on 22.06.2003 has been withdrawn on the ground that on the said date the petitioner was not in regular service. Further, prayer has been made for staying the order dated 02.02.2018, passed by respondent No.4 as contained in Annexure-6 to the writ petition. 2. The case of the petitioner lies in a narrow compass. The petitioner was appointed as a Clerk in the Collectorate Office, Deoghar on daily-wages basis on 19.01.1988. The petitioner was given equal pay for equal work till regularization of service in light of order passed by the Hon'ble Patna High Court. Thereafter, in view of notification issued by the State Government, the Hindi Noting and Drafting Examination was to be held on 22.06.2003. Pursuant thereto, the petitioner made application through proper channel for appearing in the said examination, which was forwarded by the respondents. The petitioner appeared in the said Hindi Noting and Drafting Examination, held on 22.06.2003 and was declared successful and his name appeared at Sr. No.10 in the list of successful candidates communicated vide letter dated 27.11.2003 issued by the Deputy Secretary-respondent No.3. 3. It is further the case of the petitioner that the services of the petitioner was regularized on 24.07.2007 and his services was also confirmed vide order dated 31.05.2012. As the petitioner has cleared the Hindi Noting and Drafting Examination, the benefits of annual increment and fixation of pay of the petitioner was revised and approved by the District Accounts Officer, Deoghar vide letter dated 20.05.2010. It is the specific case of the petitioner that, all of sudden all the benefits which were granted to petitioner on the ground of passing of Hindi Noting and Drafting Examination were withdrawn on account of petitioner being not in regular service as on date of passing of the said examination. Being aggrieved, the petitioner made several representation before the respondents with all details, but neither any order has been passed till date nor the same has been considered and as such, the petitioner has been constrained to move before this Court. 4. Mr. Being aggrieved, the petitioner made several representation before the respondents with all details, but neither any order has been passed till date nor the same has been considered and as such, the petitioner has been constrained to move before this Court. 4. Mr. Abhishek Sinha, learned counsel for the petitioner submits that the impugned order is not tenable in the eyes of law as the same has been issued after 13 long years without even any show-cause or without giving any opportunity of hearing. Learned counsel further argues that it was the respondents, who accepted and processed the application of the petitioner and allowed the petitioner to appear in the said examination and as such, the fault is on the part of the respondents not the petitioner. Learned counsel further argues that as on date, the services of the petitioner has been regularized and confirmed and while in service, he appeared in the said examination and there is no wrong for appearance in the examination and petitioner has been declared successful. Learned counsel further argues that the impugned order is not tenable in the eyes of law. 5. Per contra, counter-affidavit has been filed. Mr. Anup Kr. Agrawal, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that petitioner is not entitled for the benefits, which accrued to him, by way of passing the Hindi Noting and Drafting Examination. Learned counsel further argues that at the time of passing the departmental examination, the petitioner was not in regular service, the said exam was meant for the employees, who were in regular service and not for the daily-wager. Admittedly, the petitioner has been working as daily-wager at the time of said exams and as such, there is no illegality or infirmity in the impugned order. However, learned counsel submits that the respondents have not passed any order of recovery. 6. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, the services of the petitioner has been regularized in the year, 2007 and has also been confirmed in the year, 2012. The petitioner appeared in the Departmental Examination by making an application and the said application was duly recommended by the respondent-authorities. Admittedly, the services of the petitioner has been regularized in the year, 2007 and has also been confirmed in the year, 2012. The petitioner appeared in the Departmental Examination by making an application and the said application was duly recommended by the respondent-authorities. Nothing has been concealed by the petitioner and it cannot be said that petitioner appeared in the said examination, by way of fraud. The Department was fully aware about the status of the petitioner. The petitioner is still in service, the benefits accrued to the petitioner cannot be recovered or cancelled without affording any opportunity of hearing to him which is in compete violation of cardinal principles of natural justice. No order can be passed having civil or evil consequences without following the cardinal principles of natural justice. Admittedly, the petitioner has been declared successful in the departmental examination, it is not a case that the petitioner was not declared successful. As the petitioner appeared in the said examination, in the year, 2003 and it was only in the year, 2018 i.e. after 15 long years, the respondents have woke up from deep slumber and raised the objection that benefits were wrongly given, which is not acceptable to this Court. 7. The Hon'ble Apex Court in case of Kusheswar Nath Pandey Vs. State of Bihar & Ors. reported in (2013) 12 SCC 580 has held that which read as under: 9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time-bound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and accordingly to them the time-bound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination. 8. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order at Annexure-6 to the writ petition, dated 02.02.2018 is hereby quashed and set aside. 9. Resultantly, writ petition stands allowed.