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Jharkhand High Court · body

2019 DIGILAW 1989 (JHR)

Kanaklata Kumari v. State of Jharkhand

2019-12-10

S.N.PATHAK

body2019
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order dated 29.12.2016 (Annexure-7), whereby the respondent No. 3 has cancelled the appointment of the petitioner to the post of Tax Collector w.e.f. 31.12.2015. 3. The case of the petitioner lies in a narrow compass. In view of an advertisement floated by the respondent No. 4, for appointment to the post of Tax Collector, the petitioner having the requisite qualification applied for the same and accordingly, he was called for interview. The petitioner appeared in the interview and subsequently, was declared successful and finally selected to the said post. After selection and on the basis of the decision taken by the Dumka Municipality’s Appointing Committee dated 09.04.2011, followed by the decisions taken on 03.05.2011 and 15.05.2011, the petitioner was selected for the post of Tax Collector on honorarium of Rs.3000/- per month, for one year. Accordingly, the petitioner joined the said post and since then she has been working continuously. The petitioner continued to work to the satisfaction of the respondent-authorities and a performance certificate was also issued in her favour. The respondents allotted the different works to the petitioner in respect of different wards of the municipality. Vide letter dated 27.09.2016, the petitioner was allotted the work of Trade License and Field Verification, by the respondent No. 4, as the work of tax collection was allotted to Shree Publication. The petitioner made representation for payment of her salary as the same was due since September, 2016. The Municipality Committee took a decision for engagement of Shree Publication Pvt. Ltd., for the work of Water User Charge and the person employed as Water Meter Reader were directed to be discharged. A copy of the said decision was also provided to the petitioner under the Right to Information Act. In light of the decision taken by the Dumka Municipality Committee, as per agenda No. 5, the appointment of petitioner was cancelled from the post of Tax Collector. Aggrieved by the said cancellation order, the petitioner has knocked the door of this Court. 4. Mr. A.K. Sahani, learned counsel appearing for the petitioner, assails the impugned order and submits that from very perusal of agenda No. 5, it appears that name of the petitioner does not figure in the said agenda. Aggrieved by the said cancellation order, the petitioner has knocked the door of this Court. 4. Mr. A.K. Sahani, learned counsel appearing for the petitioner, assails the impugned order and submits that from very perusal of agenda No. 5, it appears that name of the petitioner does not figure in the said agenda. Further, it has been argued that no decision has been taken in view of agenda No. 5 regarding cancellation of appointment of the petitioner and in absence of any decision, no order could have been passed and the order of cancellation is illegal and arbitrary. Mr. Sahani draws the attention of the Court towards Annexure-6, agenda No. 5 and submits that the name of other persons have been reflected in the said agenda but the name of petitioner does not finds place there. Learned counsel submits that in absence of any decision from the Dumka Municipal Committee, the appointment of the petitioner could not have been cancelled and as such, a direction be given to restore the appointment of the petitioner, as she was working earlier and her appointment was genuine and as per the rules. 5. Per contra, counter-affidavit has been filed. 6. On direction of this Court, the respondents have come-out with a supplementary counter-affidavit. Mr. Radha Krishna Gupta, learned counsel appearing on behalf of the respondent-Dumka Municipal Corp., very fairly submits and draws the attention of the Court towards para-7 of the supplementary counter-affidavit. It is submitted that as per order dated 22.10.2019, passed by this Hon’ble Court, the present supplementary counter-affidavit is being filed for informing the Hon’ble Court about the decision taken in agenda No. 5, which does not speak anything with regard to the post of tax collector or for cancellation of appointment of the petitioner. The respondent-Municipal Corp. has clearly admitted that the name of the petitioner did not figure in the agenda No. 5. However, it has been argued by Mr. Radha Krishna Gupta that inadvertently, the name of the petitioner did not figure though a decision was taken to remove the tax collectors and admittedly, the petitioner was also a tax collector. 7. Be that as it may, having gone through the rival submissions of the parties and upon perusal of the records, this Court is of the considered view that the case of the petitioner needs consideration. 7. Be that as it may, having gone through the rival submissions of the parties and upon perusal of the records, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, from perusal of impugned order, it appears that the petitioner has been dismissed from service on the basis of agenda No. 5, whereas from perusal of agenda No. 5 (Annexure-6), it appears that the name of the petitioner does not figure in the said agenda. Law is clear that what is not in the impugned order, that cannot be brought on record by way of any counter-affidavit or supplementary counter-affidavit. The impugned order cannot be improved by way of any affidavit. 8. The Hon’ble Apex Court in para 9 in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 , has held as under:- “9. An attempt was made by referring to the Commissioner’s affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 9. Further, the same view has been reiterated by the Hon’ble Apex Court in the case of Mohinder Singh Gill Vrs. Chief Election Commissioner, reported in (1978) 1 SCC 405 , paragraph-8 of which reads as under:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji:. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji:. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 10. As the name of the petitioner did not figure in the agenda No. 5, her appointment could not have been cancelled by the respondent-authorities. 11. As a cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 29.12.2016 (Annexure-7), is hereby quashed and set aside. The respondents are directed to consider the case of the petitioner for restoring her name back to the place where she was working earlier to the post of Tax Collector. 12. Resultantly, the writ petition stands allowed.