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Jharkhand High Court · body

2018 DIGILAW 227 (JHR)

Vinita Prakash v. State of Jharkhand

2018-01-29

S.N.PATHAK

body2018
ORDER : The petitioner has approached this Hon'ble Court with a prayer for issuance of writ in the nature of certiorari for quashing the order dated 30.3.2016 as contained in Annexure-5 to the writ application by which one Dr. Smt. Priyashri Sunita (respondent No.5) has been given additional charge of the Principal, Government Pharmacy Institute, Bariatu, Ranchi in place of petitioner. 2. On 18.4.2016 when the case was taken up by this Hon'ble Court, notices were issued to respondent No. 5 after hearing Counsel for the parties. As per the office report notice on Respondent No. 5 has been validly served as reported by Judge Incharge but no counter-affidavit has been filed on behalf of respondent No. 5. It seems that she has no interest in the case and as such no one has represented on her behalf either by any Advocate or any person. 3. It is the case of the petitioner that petitioner and respondent No. 5 were selected for the post of Lecturer through Jharkhand Public Service Commission and in the merit list name of petitioner stands at Serial No. 23 whereas name of respondent No. 5 is at serial No. 32 and as such admittedly respondent No. 5 is junior to petitioner as per merit list. 4. The petitioner and respondent No.5 were appointed as Lecturer on 12.7.2008 and posted in Government Pharmacy Institute, Bariatu. In the order of appointment also the name of petitioner is at SI. No. 3 whereas the name of respondent No. 5 is at SI. No. 4. This also shows that the petitioner is senior to respondent No. 5. Pursuant to said appointment, the petitioner joined her post on 16.7.2008. 5. It is stated that since the petitioner was senior, she was given additional charge of the Principal of Government Pharmacy Institute, Bariatu vide order dated 10.10.2014 and pursuant thereto the petitioner assumed the charge of the post of Principal on 10.10.2014. 6. It is specific case of the petitioner that since the date of appointment as I/C Principal, the petitioner was discharging her duty efficiently, diligently and to the full satisfaction of all superior authority. There was no complaint whatsoever against the petitioner from any corner. 7. 6. It is specific case of the petitioner that since the date of appointment as I/C Principal, the petitioner was discharging her duty efficiently, diligently and to the full satisfaction of all superior authority. There was no complaint whatsoever against the petitioner from any corner. 7. It is further stated that due to sad demise of her husband on 25.3.2016 at Gurgaon, the petitioner filed an application before the respondent No. 3 for grant of leave from 28.3.2016 to 7.4.2016 along with her application, she had also annexed death certificate of her husband. 8. It is specific case of the petitioner that without considering her representation and appreciating the facts in right perspective, respondent No. 2 has issued an order dated 30.3.2015 (Annexure-5) by which one Dr. Smt. Priyashri Sunita (respondent No. 5) was given additional charge of the Principal, Government Pharmacy Institute, Bariatu, Ranchi in place of petitioner, who was discharging her duties as a Principal, ignoring the fact that she was appointed and made Incharge Principal vide Annexure-3 as per notification dated 10.10.2014. As she was the senior-most Lecturer of that College, the petitioner has knocked the door of this Court challenging the said order of appointment of respondent No. 5 as Incharge Principal. 9. Mr. Kumar Harsh, learned Counsel appearing for the petitioner argues that the appointment of respondent No. 5 is de hors the Rules and against the settled principle of law. 10. Mr. Harsh argues that no ad hoc appointment can be replaced by another ad hoc appointment. In the instant case no ground has been mentioned in appointment of respondent No. 5 as to why she was appointed when the petitioner was already working and appointed as per Rules. 11. Mr. Kumar Harsh further argued that even in case of ad hoc appointment it is not the sweet-will of the respondent authority to appoint anybody as Incharge Principal. In the case of ad hoc appointment also Rules and Guidelines have to be followed. 12. Mr. Harsh further argued that it was only due to death of her husband she was away for a week and in this regard information was given to the respondent authorities and as such without affording her any opportunity they could not have appointed any other person in place of her. 13. To buttress his argument, Mr. Kumar placed heavy reliance in case of "Jaibir Mishra Vs. 13. To buttress his argument, Mr. Kumar placed heavy reliance in case of "Jaibir Mishra Vs. L.N. Mithila University & Ors., reported in 1987 PLJR page 838 and argues that this case is fully covered by the ratio laid down in the instant case. 14. Per contra counter-affidavit has been filed. 15. Learned J.C. to S.C. IV vehemently opposes the contention of the learned Counsel for the respondents and argues that since complaint was received against petitioner by the students of the said College and as such she was rightly removed and some other person i.e. respondent No. 5 was appointed. Learned Counsel further argued that it is not a regular appointment and as such the respondents were free to appoint any person and there is no illegality in the order of appointment of respondent No.5. Learned Counsel further argued that seniority cannot be a ground for appointment by way of ad hoc arrangement to the post of Incharge Principal. 16. Learned J.C. to S.C. IV draws the attention of the Court towards several paragraphs of the counter-affidavit. Learned Counsel justifies the impugned order and argues that there is no illegality in the order of appointment and as such this writ petition is fit to be dismissed. 17. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that case of the petitioner needs consideration. From perusal of Annexure-3 dated 10.10.2014 it is crystal clear that vide clause (3) it has been specifically mentioned that at the time of regular appointment this notification will come to an end. This notification itself goes to rescue of the petitioner. The respondents are not relying on their own notification. The notification is very clear on the point that it will come to an end or it will not be in existence when any regular appointment is made, the appointment of respondent No.3 comes to an end but in the instant case no regular appointment has been made rather on the sweet-will of the respondents ad hoc appointment of respondent No.5 to the post of Incharge Principal of the said College has been made which is not permissible in the eyes of law. No ad hoc appointee can be replaced by another ad hoc appointee. No ad hoc appointee can be replaced by another ad hoc appointee. In case of "Jaibir Mishra vs. L.N. Mithila University & Ors., the Hon'ble Court held : Person appointed earlier in point of time must rank senior. 18. Even if an ad hoc appointment is to be made, senior-most candidate must get an opportunity to be appointed. Admittedly, the petitioner was senior to respondent No. 5. The contention of the learned Counsel for the respondents that petitioner arid respondent No. 5 were appointed on the same date and as such the petitioner cannot be said to be senior is not acceptable to this Court rather said contention is misconceived. From perusal of the records also it is apparent that petitioner is senior to respondent No. 5. There is no justification for appointment of respondent No. 5 in place of petitioner. It is apparent from appointment letter of the petitioner (Annexure-3) that notification dated 10.10.2014 regarding appointment of petitioner shall be automatically repealed once a regular appointment is made. Whereas the notification dated 10.10.2014 was repealed vide notification dated 30.3.2016 (Annexure-5) without making regular appointment and by virtue of notification dated 30.3.2016, respondent No. 5 was appointed on ad hoc basis replacing the petitioner which is not sustainable in the eyes of law. 19. Resultantly, the order at Annexure-5 dated 30.3.2016 is quashed and set aside. 20. The respondents are directed to continue the petitioner till any regular appointment is made as per the Rules.