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2018 DIGILAW 882 (JHR)

Birendra Kumar v. State Of Jharkhand

2018-04-18

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT Anubha Rawat Choudhary, J. - Heard Mr. Rajiv Nandan Prasad, learned counsel appearing on behalf of the petitioners. 2. Heard Mr. L.C.N Sahdeo (G.P-IV) and Mr. Sandip Verma, learned counsel appearing on behalf of the respondents. 3. This writ petition was originally filed for the following reliefs: "For issuance of a writ in the nature of mandamus commanding the respondents to regularise and count the services rendered by the petitioners from the date of their initial appointment between 1988 to 1992 till November 2005 on the post of Technical Assistant as pensionable service in terms of order dated 10.04.2006 passed by the Hon''ble Supreme Court in Civil Appeal No.2018 of 2006 read with directions contained in order dated 23.07.2003 passed in Civil Appeal No.5342-5343 of 2003 and the order dated 29.11.2012 passed by the Hon''ble Supreme Court of India in I.A. No.17 of 2012 filed in Civil Appeal No.2018 of 2006 and also for grant of other consequential relief for which the petitioners are entitled in accordance with law." 4. During pendency of this case, the order as contained in memo dated 18.03.2015 was passed, rejecting the claim of the petitioners as contained in various representations filed before the Secretary, Department of Animal Husbandry, Govt. of Jharkhand, Ranchi including representation filed on 18.12.2012 as contained in Annexure-8 series to the writ petition. Accordingly, the petitioners filed I.A No.5485 of 2015, challenging the said order dated 18.03.2015 and the petition for amendment was allowed vide order dated 26.10.2015. Thereafter, the petitioners filed amended writ petition which is on record. 5. of Jharkhand, Ranchi including representation filed on 18.12.2012 as contained in Annexure-8 series to the writ petition. Accordingly, the petitioners filed I.A No.5485 of 2015, challenging the said order dated 18.03.2015 and the petition for amendment was allowed vide order dated 26.10.2015. Thereafter, the petitioners filed amended writ petition which is on record. 5. The prayer made in the amended writ petition, reads as under: "For issuance of a writ in the nature of mandamus commanding the respondents to regularise and count the services rendered by the petitioners from the date of their initial appointment between 1988 to 1992 till November 2005 on the post of Technical Assistant as pensionable service in terms of order dated 10.04.2006 passed by the Hon''ble Supreme Court in Civil Appeal No.2018 of 2006 read with directions contained in order dated 23.07.2003 passed in Civil Appeal No.5342-5343 of 2003 and the order dated 29.11.2012 passed by the Hon''ble Supreme Court in I.A. No.17 of 2012 filed in Civil Appeal No.2018 of 2006 and further for issuance of a writ in the nature of writ of certiorari quashing the order passed by the Respondent no.3 vide memo no.262 dated 18.03.2015 whereby the representation filed by the petitioners in pursuance of the order dated 29.11.2012 passed by the Hon''ble Supreme Court in I.A. No.17 of 2012 in Civil Appeal No.2018 of 2006 for counting the service rendered prior to date of termination for computation of their pensionary benefit has been rejected in a most illegal and arbitrary manner and also for grant of other consequential relief for which the petitioners are entitled in accordance with law." 6. Counsel for the petitioners submits as under: A. The petitioners in this case were appointed as Technical Assistant in the Frozen Semen Bank Project of the Animal Husbandry Department by the then State of Bihar between the period from 1988 to 1992 by the Regional Director, Animal husbandry, South Chhotanagpur Range and the appointment was on ad hoc basis. However, vide order as contained in letter no.5530 dated 23.10.1998, the appointment of such Technical Assistants by the Regional Officers were made invalid and they were to be terminated after issuance of show cause. B. Being aggrieved by the said notification dated 23.10.1998, the petitioners along with others filed writ petition before the Hon''ble Patna High Court being C.W.J.C. No.11456 of 1998. B. Being aggrieved by the said notification dated 23.10.1998, the petitioners along with others filed writ petition before the Hon''ble Patna High Court being C.W.J.C. No.11456 of 1998. Other cases were also filed being C.W.J.C. No.879 of 1999 and C. W.J.C. No.3639 of 2000(R). The two cases being C.W.J.C. No.11456 of 1998 and C.W.J.C. No.879 of 1999 were initially filed before the Hon''ble Patna High Court at Patna, but after the creation of the State of Jharkhand, those two writ petitions were transferred to the Jharkhand High Court Ranchi and were numbered as C.W.J.C. No.11456 of 1998(P) and C.W.J.C. No.879 of 1999(P) respectively and was clubbed with C.W.J.C. No.3639 of 2000(R). Counsel for the petitioners submits that many Civil Writ Petitions were filed by various persons including one filed by Mr. Uma Kant Sinha and Others vs. State of Bihar being C.W.J.C. No.3503 of 1998 , which was dismissed with other analogous cases by the High Court vide judgment dated 18.07.2001. The counsel for the petitioners submits that in judgment dated 18.07.2001 this Hon''ble Court held that the Regional Director had power to make appointment on the post of Technical Assistant till 21.02.1992. He submits that in spite of this, the writ petitions were dismissed, against which, letters patent appeal was filed before Hon''ble Division Bench and the same was also dismissed vide judgment dated 07.08.2001. C. Thereafter, said Uma Kant Sinha & Ors. moved before the Hon''ble Supreme Court by filing S.L.P.(C) No.16958-16959 of 2001, which was subsequently converted into Civil Appeal No.5342-5343 of 2003 and was disposed of vide judgment and order dated 23.07.2003. Counsel for the petitioners refers to the operative portion of the judgment passed by the Hon''ble Supreme Court in the case of Uma Kant Sinha & Ors. vs. State of Jharkhand & Ors. , which is quoted hereinbelow: "We make it clear that ad hoc appointees have no right to claim regularization in the service but because of erroneous procedure adopted by the concerned authority in appointing such persons and thereafter continuing them for years together, on occasions, relief is required to be moulded in favour of such employees. In the present case, undisputedly, the appellants were appointed as early as in the year 1988-89 and have continued to work on the posts for years together. In the present case, undisputedly, the appellants were appointed as early as in the year 1988-89 and have continued to work on the posts for years together. Further, considering the fact that appointments of the appellants were made on the basis of orders passed by the State Government and that too on recommendation by the Selection Board and after taking into consideration the requirement of the project, which is still continuing, we accept the submission made by the learned senior counsel for the appellants. In this view of the matter, we direct the State of Jharkhand to consider at the earlier for recruiting Technical Assistant for the Semen Bank project and to fill up the existing vacancies within a period of three months from today. For that purpose the respondent-State is directed to constitute a Selection Committee as per the existing Rules within a period of three months from today. (ii) The appellants whose services are terminated may apply to the Secretary of the Animal Husbandry Department within a period of one month for being re-appointed or for regularisation of their services. The Committee shall consider the eligibility, suitability, past record as well as the educational qualifications of the appellants as per the rules as on today; (iii) The Committee shall give relaxation of age and weightage over outsiders as directed by the High Court. However, if the appellants are found unsuitable for some reasons, it would be open to the committee to reject their applications." D. Subsequently, the case of the petitioners was taken up by this Hon''ble Court and the case was decided vide judgment dated 26.10.2005. The operative portion of the said judgment is contained in para-9, 10 and 11 of the said judgment, which is quoted hereinbelow: "9. Learned counsel for the petitioners submitted that the petitioners should also be allowed similar benefit, as has been allowed by the Supreme Court. However, such submission cannot be accepted, the appellants before the Supreme Court having worked for about ten years certain observations and directions were made, as quoted above. 10. So far as these petitioners are concerned, they were appointed in between 1988-91 and their services were ordered to be terminated vide order dated 23rd October, 1998. However, such submission cannot be accepted, the appellants before the Supreme Court having worked for about ten years certain observations and directions were made, as quoted above. 10. So far as these petitioners are concerned, they were appointed in between 1988-91 and their services were ordered to be terminated vide order dated 23rd October, 1998. The Supreme Court while passed certain directions to give weightage to the appellants before the Court, made it clear that the order passed in those appeals should not be treated as precedent, the Court having decided the issue purely on facts and in the peculiar circumstances of those cases. 11. In the circumstances, no relief can be granted to the petitioners, though it will be open to them to apply for regular appointment, as and when the State Government notifies any vacancy for which they are eligible. In such case, they may ask for and the State Government may grant suitable age relaxation, including preference over outsiders, in the matter of direct recruitment." E. Counsel for the petitioners further submits that the petitioners filed Special Leave Petition before Hon''ble Supreme Court which was converted into Civil Appeal No.2018 of 2006 and prayed for similar orders as has been passed in the case of Uma Kant Sinha and Others. However, the Hon''ble Supreme Court passed the final order dated 10.04.2006. The operative portion of the order reads as under: "We are of the view that the issue should be resolved finally and should not be kept pending. The earlier order of this Court was passed on 23.07.2003. The right to be selected thereunder cannot continue indefinitely. Therefore, we direct: (1) that the respondent-Authority shall advertise in the local newspapers having wide circulation of the holding of selections for the purpose of filling of those vacancies which, according to the Rules, are to be filled by direct appointment. (2) Applications should be asked for from those ad hoc employees who were appointed in the Frozen Semen Bank Project between 1988 to 1992 and whose services were terminated in 1998. No such employee who has already been considered by the Selection Committee under the order dated 23.07.2003 shall apply. (2) Applications should be asked for from those ad hoc employees who were appointed in the Frozen Semen Bank Project between 1988 to 1992 and whose services were terminated in 1998. No such employee who has already been considered by the Selection Committee under the order dated 23.07.2003 shall apply. (3) No appointment already made either in the normal course or pursuant to the earlier order of this Court shall be disturbed; (4) the advertisement shall specify the last date with which the candidate concerned shall apply for consideration including thereon proof that the candidate had served with the respondents. (5) The selection shall be made by the Selection Committee only against the available vacancies. Preference shall be given to those who have longer tenure of service over those who have shorter tenure of service, other things being equal. (6) All other conditions in the order dated 23.07.2003 shall be operative as far as the procedure to be followed by the Selection Committee to be set up pursuant to this order is concerned." F. Subsequently, the petitioners applied for fresh appointment pursuant to the advertisement issued by the respondents and the petitioner nos.1 to 6 were appointed vide Memo no.1885 dated 19.08.2010 and the petitioner nos.7 to 18 were appointed vide Memo no.883 dated 15.07.2011. Since this particular appointment was fresh appointment, the petitioners filed interlocutory application being I.A. No.17 of 2011 in Civil Appeal No.2018 of 2006 raising grievance that as petitioners are continuing in service from 1992 onwards, their service period should be considered at least for the purpose of pensionary benefits. The Said interlocutory application being I.A. No.17 of 2011 in Civil Appeal No.2018 of 2006 was disposed of by the Hon''ble Supreme Court vide order dated 29.11.2012 and the Hon''ble Supreme Court refused to entertain the interlocutory application and observed that the applicants, if so advised, may raise their grievance before the competent authority of the State of Jharkhand. It was also observed that if any such representation is made, the competent authority will consider and dispose it of in accordance with law. It was also observed that if any such representation is made, the competent authority will consider and dispose it of in accordance with law. G. Thereafter, the petitioners filed representation before the Director, Animal Husbandry, Jharkhand, Ranchi with a request to clear the service of period from 1992 onwards till the date of termination dated 09.11.2005 for the purpose of getting pensionary benefits and the said representation was rejected by the Director, Animal Husbandry Department vide impugned memo no.262 dated 18.03.2015 which has been challenged by the writ petitioners by filing petition for amendment, which has already been allowed by this Court. H. Counsel for the petitioners submits that this Hon''ble Court while disposing of the writ petition filed by Uma Kant Sinha and Ors. Being C.W.J.C No.3503 of 1998(R) had held that the Regional Director, Animal Husbandry Department had jurisdiction to make the appointment by way of ad hoc arrangement against Class-III post of Technical Assistants between the period 18.03.1988 to 21.02.1992 and he refers to para 13 of the said judgment, and accordingly, he submits that this Hon''ble Court has already held that the Regional Director, Animal Husbandry Department had jurisdiction to make appointment, therefore, past services which was rendered by the petitioners cannot be treated as illegal, and accordingly, the petitioners should be granted the benefit of past services by calculating the pensionary benefits of the petitioners. I. Counsel for the petitioners has relied upon Annexure-12, and submits that vide notification no.1348 dated 13.02.2015 in case of irregular appointment, the benefit of past services has been given and therefore, the petitioners are also entitled for similar relief. 7. Counsel for the respondents on the other hand, submits that the impugned order has been rightly passed by the Director, Animal Husbandry Department and the petitioners cannot take any advantage of the past services, particularly in view of the fact that the services of the petitioners were terminated in the year 2005 by holding that the appointment of the petitioners was illegal, against which the petitioners had moved this Hon''ble Court and Hon''ble the Supreme Court and ultimately the petitioners were not granted any relief. It is submitted that, therefore, the request of the petitioners for treating the past services as part for the calculation of pensionary benefits cannot be allowed, as the appointment of the petitioners was illegal. It is submitted that, therefore, the request of the petitioners for treating the past services as part for the calculation of pensionary benefits cannot be allowed, as the appointment of the petitioners was illegal. Further, the counsel for the respondents submits that after the judgment passed by the Hon''ble Supreme Court and pursuant to advertisement issued by the State of Jharkhand, the petitioners have duly participated by making application for fresh appointment and they have already been granted fresh appointment in accordance with the directions issued by Hon''ble the Supreme court , and accordingly, past services of the petitioners cannot be counted for any purpose including for grant of pensionary benefits. 8. After hearing counsel for the petitioners as well as the respondents and on perusal of the record, this Court finds that there were two sets of petitioners aggrieved by order of termination of service. One was the instant writ petitioner with others in C.W.J.C. No.11456 of 1998(P) and other analogous cases and other was Mr.Uma Kant Sinha and Others in C.W.J.C. No.3503 of 1998(R) and other analogous cases. The case of Mr. Uma Kant Sinha and Others was decided earlier than the case of the petitioners and from perusal of the judgment passed in the case of Mr. Uma Kant Sinha and Others by this Court dated 18.07.2001, it appears that although it was held that Regional Director had the power of appointment on ad-hoc basis at the relevant point of time but still held that the appointments were illegal and ultimately this Court dismissed the writ petition by holding that all the petitioners were working for about 10 years or above and State Government was directed to give certain weightage to those petitioners as and when they filled up the post of Technical Assistant by giving relaxation in age, if so required, and also weightage over the outsiders. This particular judgment passed in the case of Mr. Uma Kant Sinha and Others was subject matter of Civil Appeal No.5342-5343 of 2003 and other analogous cases wherein the Hon''ble Supreme Court held that the ad hoc appointees has no right claim regularization in the service but because of erroneous procedure adopted in appointing such persons and, thereafter, continuing them for years together, on occasions, relief was required to be moulded in favour of such employees. In the said case it was held that the appellants of the said case was appointed as early in the year 1988-89 and have continued to work for years together. Considering these aspects the Hon''ble Supreme Court directed the State of Jharkhand to consider the recruitment of Technical Assistants for Semen Bank project and to fill up the existing vacancies within a period of three months and the appellants of the said case, whose services was terminated were to apply to the Secretary of the Animal Husbandry within a period of one month for being appointed or for relaxation of their services and the procedure was prescribed in the said judgment, as to how the appointment is to be made and how the matter of petitioners of Civil Appeal No.5342-5343 of 2003 was to be taken into consideration. 9. After the disposal of the case of Uma Kant Sinha & Ors. by Hon''ble Supreme Court, the case of the petitioners being CWJC No.11456 of 1998 (P) and other analogous cases was taken up by this Hon''ble Court and the judgment was delivered on 26.10.2005. Before this Court, the petitioners tried to draw an analogy and prayed for similar reliefs as has been given by Hon''ble Supreme Court in the case of Uma Kant Sinha and Ors. However, the said contention of writ petitioner was rejected vide para 9, 10 and 11 of the order which has already been quoted above. Further, this court has also come to a specific finding vide para 4 and 5 of the judgment in the earlier round of litigation that the appointments of the petitioners in CWJC No.11456 of 1998 (P) and other analogous cases was illegal. The said para 4 and 5 reads as follows:- "4. From the letters of appointment, as enclosed and discussed, it will be evident that the petitioners were not appointed on regular basis. Their appointments were ad-hoc in nature till the regular appointment was to be made or until final decision, as was to be taken by the Headquarters. The said para 4 and 5 reads as follows:- "4. From the letters of appointment, as enclosed and discussed, it will be evident that the petitioners were not appointed on regular basis. Their appointments were ad-hoc in nature till the regular appointment was to be made or until final decision, as was to be taken by the Headquarters. In the impugned Letter No.5530 dated 23rd October, 1998 the respondents have shown the following grounds, while ordered to cancel the illegal appointments: (i) The Regional Officers had no power to appoint but the power was vested with the Director, Animal Husbandry; (ii) The appointments were made without any recommendation of the Subordinate Service Selection Board; (iii) In terms with the order dated 31st December, 1987 the promotion and appointment could have been made by the Director, Animal Husbandry, and not by the Regional Officers; (iv) There was a ban on appointments since 1st August, 1985; (v) No advertisement was issued, giving opportunity to other eligible candidates; (vi) Reservation Rules were not followed; (vii) Appointments were excess to the sanctioned strength; (viii) Appointments were made without following the procedures and guidelines; etc. 5. In none of the present cases, the petitioners have given the date of any advertisement. Neither any advertisement was issued in any Newspaper nor there is anything on the record to suggest that the petitioners were called for interview, as no letter of interview has been enclosed. The petitioners have neither disclosed the date of interview nor have disclosed the date on which the Selection Committee held its meeting. No recommendation of Selection Committee has been enclosed with the writ petition nor anything is on the record to show that Rules for reservation were followed. Therefore, the appointments of the petitioners cannot be held to be legal." Against this judgment, the petitioners filed civil appeal before Hon''ble Supreme Court being Civil Appeal No.2018 of 2006 and the Hon''ble Supreme Court passed the order which has been quoted above. 10. From perusal of the order of the Hon''ble Supreme Court, it appears that the Hon''ble Supreme Court also did not grant the same relief, which was given to the petitioners of Uma Kant Sinha & Ors. However, the Hon''ble Supreme Court granted relief to the petitioners only to the extent it relates to the procedure to be followed by the selection committee in the matter of selection. However, the Hon''ble Supreme Court granted relief to the petitioners only to the extent it relates to the procedure to be followed by the selection committee in the matter of selection. Thereafter, the petitioners duly participated in the selection process for fresh appointment and again the petitioners filed interlocutory application being I.A. No.17 of 2012 in Civil Appeal No.2018 of 2006 which was not entertained, but, liberty was given to the petitioners to approach the competent authority and raise their grievance regarding their pensionary benefits in service since 1992 onwards and for consideration of such period for the purposes of calculating the pensionary benefits. Thereafter, the petitioners filed a representation and the impugned order has been passed. Thus the finding that the appointment of the petitioners was illegal has not been disturbed by Hon''ble the Supreme Court. 11. From perusal of the impugned order, it appears that the Director, Animal Husbandry Department has held that as appointment of the petitioners was illegal, therefore, the petitioners cannot be given benefit of the past services. Counsel for the petitioners has relied upon Annexure-12, being notification no.1348 dated 13.02.2015 and has submitted before the Court that in case of irregular appointment, the benefit of past services has been given and therefore, the petitioners are also entitled for similar relief. However this court finds from the perusal of notification no.1348 dated 13.02.2015 that the same relates to irregular appointment and not to illegal appointments. The case of the petitioners being a case of illegal appointment, the petitioners cannot have any benefit of the rules made as contained in notification no.1348 dated 13.02.2015. This Court finds that the services of the petitioners was terminated on the ground that the petitioners were illegally appointed and the order terminating the illegal appointment of the petitioners was never set aside either by this Court or by the Hon''ble Supreme Court and subsequently the petitioners were granted fresh appointment after following the directions of Hon''ble the Supreme Court. Accordingly, in view of the fact that the petitioners were earlier illegal appointees, the petitioners cannot be held to be entitled for benefit of past services for the purpose of pensionary benefit or for any other purpose. In above view of the matter this court holds that the impugned order dated 18.03.2015 has been rightly passed. Accordingly, in view of the fact that the petitioners were earlier illegal appointees, the petitioners cannot be held to be entitled for benefit of past services for the purpose of pensionary benefit or for any other purpose. In above view of the matter this court holds that the impugned order dated 18.03.2015 has been rightly passed. This Court does not find any illegality or perversity in the impugned order, therefore this writ petition is dismissed.