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2019 DIGILAW 1405 (JHR)

State of Jharkhand v. Umesh Kumar Singh

2019-08-08

DEEPAK ROSHAN, H.C.MISHRA

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ORDER : 1. Heard learned counsel for the appellant State and learned counsel for the private respondent. 2. The appellant State is aggrieved by the impugned order dated 16.07.2008, passed by the Hon'ble Single Judge, in W.P. (S) No. 1322 of 2003, whereby the writ application filed by the respondent petitioner was allowed by the Writ Court, directing the State authorities to reinstate the writ petitioner at his original post on regular vacancy within the period of three months from the date of order. 3. The writ petitioner was working on the post of Clerk at J.K.R.R. High School, Chirkunda, whose service was terminated along with 23 other similarly situated persons, vide letter No. 327 dated 23rd July 1992. In all, by three letters issued on the same day, the services of 83 persons, similarly situated, were terminated on the ground that they were illegally appointed, on the basis of a forged letter of the Director, Secondary Education, Bihar. 4. On the last occasion, when this matter was taken up on 20.6.2019, it was pointed out that several such persons, who were terminated along with the private respondent, have been taken back in service, and they are still continuing in service. In that view of the matter, this Court directed the appellant State to bring on affidavit, whether other similarly situated persons, who were also terminated along with the writ petitioner, have been reinstated in service or not, and pursuant to the said order, a supplementary affidavit has been filed on 23.07.2019, in which, it is stated in paragraphs 6, 7, 8 and 9 as follows:- “6. That it is stated that altogether 83 candidates were wrongly and illegally appointed by the then District Education Officer, Dhanbad and after bifurcation of Dhanbad district into Dhanbad and Bokaro District service of 76 illegal appointees came under the Jurisdiction of Dhanbad and 07 in the district of Bokaro respectively. 7. That the appointments were made by the then District Education officer, Dhanbad namely Tete Bendict in her personal capacity had not been made in accordance in law and had been made without following the due process as mentioned in circular no. 16440 dated 03.12.1980 by taking advantage of forged Letter of Director, Secondary Education, Bihar, Patna vide no. 1649 which was detected as forged and fabricated. 16440 dated 03.12.1980 by taking advantage of forged Letter of Director, Secondary Education, Bihar, Patna vide no. 1649 which was detected as forged and fabricated. Including these appointments and other illegal appointments totally 83 made by the then District Education Officer, Dhanbad were cancelled by the order of Director, Secondary Education, Bihar, Patna vide letter no. 11/A13-07/91 Maa/325 dated 23.07.1992, 327 dated 23.07.1992 and 328 dated 23.07.1992 respectively. 8. That it is stated that in view of the order passed by the Hon'ble High Court service of 20 candidates were reinstated out of which 17 candidates are still working. Detail chart of the candidate are stated as under:- (Chart given) 9. That it is stated that Hon'ble High Court has passed the several conflicting order whereby the Hon'ble High Court has rejected/dismissed the claim of 11 writ petitioners. In this peculiar situation both type of conflicting orders have get finality. Hence there are two sets of employees-one set got reinstatement and another set denied reinstatement.” In the chart attached to paragraph 8 of the supplementary affidavit, the details of the reinstated candidates have been given, which shows that in cases of at least five such candidates, the matters were taken even to the Hon'ble Supreme Court, by filing S.L.Ps/ S.L.A. against the orders of the High Court, and such candidates have been reinstated back in service, after the orders of the Hon'ble Apex Court in such S.L.Ps/S.L.A. 5. So far as the writ petitioner respondent is concerned, it is admitted fact that pursuant to the order passed by the Writ Court, he has also since been reinstated in service, with the condition that his reinstatement would be guided by the result of this L.P.A. 6. In the backdrop of these admitted facts, learned counsel for the appellant State has challenged the order passed by the Writ Court, submitting that the very initial appointment of the writ petitioner was illegal and based on a forged letter of Director, Secondary Education, Bihar, and accordingly, the services of the writ petitioner and the similarly situated other persons were rightly cancelled. Some of the candidates got reinstatement in view of the fact that their writ application were allowed by the High Court and the L.P.A. and the subsequent S.L.P. have also been dismissed, and the order of the High Court attained finality. Some of the candidates got reinstatement in view of the fact that their writ application were allowed by the High Court and the L.P.A. and the subsequent S.L.P. have also been dismissed, and the order of the High Court attained finality. The other candidates were not so fortunate, whose writ applications were dismissed by the High Court. One such order has also been brought on record by way of supplementary affidavit and it is submitted that since the very initial appointment of the respondent petitioner was absolutely illegal, the illegality could not be allowed to be perpetuated, and the impugned order passed by the Writ Court cannot be sustained in the eyes of law. 7. Learned counsel for the State has further submitted that the respondent writ petitioner had earlier moved this Court twice, firstly in C.W.J.C. No. 1670 of 1992 (R), which was filed by Ravindra Kumar Jha and others, including the respondent writ petitioner. That writ application was disposed of on 26.2.1993, in which the High Court did not interfere in the termination order, but directed the payment of the salary of the petitioners from the month of March 1992 to 23rd July 1992. In the said writ application, though the order of termination was also challenged, but that prayer was allowed to be withdrawn by the petitioners therein. The respondent petitioner again filed C.W.J.C. No. 3740 of 1993(R) in the High Court, challenging his termination order, which was disposed of by order dated 25.01.1995, in which again the High Court refused to give any relief to the respondent petitioner and had also directed the Director, Secondary Education, to look into the matter, and to see that the illegally appointed other candidates also be not allowed to continue in service. However, this direction could not be given effect to, in view of the fact that some of the candidates could get separate orders in their favour by the High Court, and in some cases also affirmed by the Hon'ble Supreme Court, and they had to be reinstated back in service. Thereafter the respondent petitioner again moved this Court in W.P. (S) No. 1332 of 2003, in which, the Writ Court quashed the order of terminating the service of the respondent, directing for his reinstatement in service. Thereafter the respondent petitioner again moved this Court in W.P. (S) No. 1332 of 2003, in which, the Writ Court quashed the order of terminating the service of the respondent, directing for his reinstatement in service. It is submitted by learned counsel for the appellant State, that this order was illegally passed by the Writ Court, ignoring the fact that this writ application was barred by the principle of res-judicata. 8. Learned counsel for the appellant State has placed reliance upon the decision of a Division Bench of this Court in Sunil Dutt Mishra and Another vs. State of Jharkhand and Others, L.P.A. No. 104 of 2017, decided on 11.08.2017, wherein, this Court has taken note of the settled principle of law by the Apex Court in State of Bihar vs. Upender Narayan Singh and Others, (2009) 5 SCC 65 and in Renu and Others vs. District and Sessions Judge Tis Hazari Courts, Delhi and Another, (2014) 14 SCC 50 , wherein the law has been settled that any appointment made in violation of Articles 14 and 16 of the Constitution of India, is not only irregular, but also illegal and cannot be sustained. In the said order, the Division Bench has further directed that in such type of cases, the amount, which have been payable to the illegal appointees, must be recovered from the officer or the authority, who had given appointment, either from his salary or from his pension or from his property. Learned counsel placing reliance upon the aforesaid decision, submitted that the State Government has already undertaken the disciplinary action against the erring appointing authority in the present case as well. 9. Learned counsel for the appellant State has also reiterated the plea of res-judicata, in view of the fact that two earlier writ applications filed for the same relief, had already been disposed of without granting any relief to the respondent. It is further submitted by learned counsel that no mandamus could be issued in favour of the illegally appointed persons. Learned counsel accordingly, submitted that the impugned order passed by the Writ Court, cannot be sustained in the eyes of law. 10. It is further submitted by learned counsel that no mandamus could be issued in favour of the illegally appointed persons. Learned counsel accordingly, submitted that the impugned order passed by the Writ Court, cannot be sustained in the eyes of law. 10. Learned counsel for the respondent writ petitioner, on the other hand, has opposed the prayer, and has submitted that it is an admitted fact in the supplementary affidavit filed on behalf of the State, that there are two sets of persons and in favour of one set of persons, favourable orders had been passed by the Court and they have been reinstated in service and they are still continuing in service, and the other set of persons are those, whose writ applications have been dismissed. Learned counsel for the respondent writ petitioner has also pointed out that in the first writ application filed by the writ petitioner, i.e. C.W.J.C. No. 1670 of 1992 (R), the first petitioner Ravindar Kumar Jha's name finds place at serial 9 in the chart given in paragraph 8 of the supplementary affidavit, giving the names of the persons, who have been reinstated in service, and are working. His matter had gone up to the Supreme Court, and only after dismissal of the S.L.P. by the Supreme Court, he has been reinstated back in service. In fact, there are several other such reinstated persons as detailed in the supplementary affidavit, whose matters had gone up to the Apex Court, and after the order of the Apex Court in their favour, they are continuing in service. Leaned counsel submitted that the case of the petitioner falls within the first set of persons and there is favourable order in favour of this respondent also, by the Writ Court, and in view of the fact that other similarly situated persons are continuing in service, there is no reason as to why, the same benefit be not given to the respondent as well. 11. Having heard learned counsels for both the sides and upon going through the record, we find that this case is having a peculiar history. By same set of orders, the services of 83 persons were terminated on the ground that they were illegally appointed, on the basis of a forged letter of the Director, Secondary Education, Bihar. 11. Having heard learned counsels for both the sides and upon going through the record, we find that this case is having a peculiar history. By same set of orders, the services of 83 persons were terminated on the ground that they were illegally appointed, on the basis of a forged letter of the Director, Secondary Education, Bihar. They filed the separate writ applications, but the writ applications of some of the candidates were allowed and it is an admitted position that in some such writ applications, the matter also went up to the Supreme Court, and the S.L.Ps/S.L.A. were dismissed. The other set of persons are those, whose writ applications were dismissed by the High Court. Accordingly, now this is a case, in which, there are two classes between the same class of persons, who were similarly appointed and similarly terminated from service. It is an admitted position that some of the persons similarly situated to the present respondent, who were also removed from service, have been reinstated back in service with all benefits and they are continuing in their service, which fact is also admitted in the supplementary affidavit filed on behalf of the State. In the case of the respondent writ petitioner, we also find that the first petitioner in his first writ application, i.e. Ravindar Kumar Jha in CWJC No. 1670 of 1992 (R), who is admittedly similarly situated to the respondent writ petitioner, has already been reinstated back in service, after the order of the Hon'ble Supreme Court in his favour. There are other set of persons, who were not that fortunate, and could not get any relief from any Court, and they are out of service. 12. The respondent petitioner, belongs to the first set of fortunate persons, who has also been granted similar relief, by the impugned order passed in W.P. (S) No. 1332 of 2003, in which, the Writ Court quashed the order, terminating the service of the respondent, directing for his reinstatement in service, taking note of the earlier orders passed in the writ applications filed by the respondent earlier, and also taking note of different orders passed by the High Court in the cases of different persons. The plea of the State counsel that this writ application was barred by the principle of res-judicata, was also considered and negated by the Writ Court. The plea of the State counsel that this writ application was barred by the principle of res-judicata, was also considered and negated by the Writ Court. As it was found that the appointment of the respondent writ petitioner was held to be illegal for the reason that sanction for his appointment was not obtained from the competent authority, and other such persons whose services were also terminated on the same ground, were given the relief by the High Court, holding such ground to be not tenable, the respondent writ petitioner also was held entitled to be reinstated in service and accordingly, the order of terminating his service, as also the order rejecting the representation of the respondent writ petitioner, were quashed by the Writ Court and direction was passed for his reinstatement in service. Pursuant to that order, the respondent writ petitioner has also been reinstated in service, subject to the result of this appeal. The fact thus, remains that in case of the respondent writ petitioner also, there is an order passed by this Court, quashing the order of his termination and directing for his reinstatement. 13. In the peculiar facts of this case, particularly in view of the fact that similarly situated other persons have been reinstated back in service pursuant to the order passed by the High Court and also affirmed by the Hon'ble Apex Court, and they are continuing in service, we see no reason as to why, the respondent writ petitioner be deprived of the same relief, in whose favour also, there is an order passed by the writ Court. Accordingly, we do not find it appropriate to interfere in the order passed by the Writ Court, without entering into the question whether the respondent's appointment to the post was legal or illegal. 14. We make it clear that we have not entered into the legality or otherwise of the impugned order passed by the Writ Court, in the peculiar facts of this case, but we are dismissing this L.P.A. only on the ground that similarly situated other persons have been reinstated in service with all consequential benefits and they are still working, pursuant to the orders passed in their favour by the High Court, as also affirmed by the Apex Court, in some cases. 15. This LPA is accordingly, dismissed with the observation as above. All the pending Interlocutory applications also stand disposed of. 15. This LPA is accordingly, dismissed with the observation as above. All the pending Interlocutory applications also stand disposed of. LPA dismissed.