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2020 DIGILAW 320 (JHR)

Jwala Prasad Gupta v. State of Jharkhand

2020-02-17

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : This interlocutory application has been filed for condoning the delay of 388 days in preferring the present appeal. 2. Heard learned counsel for the parties. 3. Having regard to the averments made in the application and submission made on behalf of the parties, we are of the view that the appellants were prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 388 days in preferring the present appeal is hereby condoned. 4. I.A. No. 9041 of 2019 stands allowed. L.P.A. No. 608 of 2019 5. The instant intra-court appeal is directed against the order dated 25.07.2018 passed by learned Single Judge of this Court in W.P.(S) No. 40 of 2017 and analogous cases whereby and where under the writ petitioner no.-3-appellant, along with other writ petitioners, have been held entitled for reinstatement in service forthwith along with the salary between the period 12.05.2018 till they are actually reinstated in service. 6. The brief facts which are necessary for appreciating the argument advanced on behalf of the parties and the legality and propriety of the order are required to be referred which read hereunder as : The State of Jharkhand had published one advertisement being Advertisement No. 4/2015, which was displayed on the website also, inviting application from the candidates for recruitment to the post of Inter-trained Teacher and Inter-trained Urdu Teacher under Gair-Yojna and Yojna respectively in the schools of Gumla district with the condition stipulated therein to the effect that there shall be 50% seats reserved for the working para teachers. The writ petitioner no.-3-appellant, who was working as para teacher, applied for consideration of his candidature in terms of the aforesaid advertisement for appointment as Inter-trained Assistant Teacher in which he was found to be successful and in consequence thereof, he was called upon to participate in the different stages of counseling which was conducted by the Screening Committee headed by the Deputy Commissioner, Gumla. The recruiting agency prepared a merit list on proper verification of the respective documents and finally the writ petitioner no.-3-appellant was appointed. The recruiting agency prepared a merit list on proper verification of the respective documents and finally the writ petitioner no.-3-appellant was appointed. But after serving for a period of 11 months the writ petitioner no.-3-appellant received a letter from the office of District Superintendent of Education, Gumla whereby show cause was asked vide letter dated 13.08.2016 as to on what basis he has applied against the vacant post of non-para teacher category while previously working as para teacher. The writ petitioner no.3-appellant submitted his reply explaining the entire facts and defending his appointment on the ground that no such condition has been stipulated in the advertisement depriving para teachers from appointment under non-para teacher category if they compete with the other categories earmarked for non-para teachers. It has also been stated that there was no misrepresentation on his part since he had brought the fact that he is working under the para teacher category, filled up his application form clearly reflecting therein about the category of para teacher under which he was working and, after being satisfied, he was appointed, allowed to discharge his duties and remained in service for the period of approximately one year and hence, dispensing with his services is not at all proper and legally justified in view of condition not provided under the advertisement that a candidate, if working as para teacher, will not be entitled for consideration of appointment under the non-para teacher category even if he competes with the candidates of non-para teacher. Considering the reply submitted by the writ petitioner no.-3-appellant, he was terminated in pursuance to the decision taken by District Education Establishment Committee vide memo no. 2129 dated 02.12.2016, which was assailed by way of filing W.P. (S) No. 40 of 2017. Similar matters in W.P. (S) No. 5158 of 2017 and analogous cases also came up before the learned Single Judge, which were heard together and disposed of vide common order dated 25.07.2018. It appears from the impugned order that initially a decision was taken to reinstate some of the petitioners in service, particularly the petitioners in W.P.(S) No. 5158 of 2017, and then to initiate a departmental proceeding against them on the allegation that they have been wrongly appointed under non-para teacher category. It appears from the impugned order that initially a decision was taken to reinstate some of the petitioners in service, particularly the petitioners in W.P.(S) No. 5158 of 2017, and then to initiate a departmental proceeding against them on the allegation that they have been wrongly appointed under non-para teacher category. Subsequently, departmental proceeding against them was dispensed with and on the basis of the order passed by this Court (learned Single Judge) in W.P.(S) No. 6031 of 2015 and W.P.(S) No. 173 of 2016, they have again been terminated from service. The contention has been raised by the writ petitioner no.-3-appellant that admittedly he was working as para teacher and as such, as per the earmarking of 50% of seats of the total vacancy advertised from amongst the para teacher category, he had applied and on the basis of assessment of his skill, he was selected and offered appointment which was accepted by him and he started rendering his duty. However, after allowing him to render service for about one year, his services was dispensed with on the ground that his selection was made under non-para teacher category, hence, he will be treated to be encroacher of the seat earmarked for the other category i.e. non-para teacher category. Replying upon such ground for dispensing with the services, he raised the issue that no such condition was laid down in the advertisement debarring him from appointment under non-para teacher category. He was competing with the candidates who were selected or proposed to be selected under non-para teacher category. The reference of the order passed by the Division Bench of this Court in L.P.A. No. 186 of 2017 and analogous has also been made wherein the plea which has been taken by the State respondents in dispensing with the services of such category of employees who were working as para teacher at the time of making application but appointed under non-para teacher category, was held to be unjustified on the ground that in the advertisement there was no such term or condition under which an applicant working as para teacher is not eligible to seek appointment under the category earmarked for non-para teachers. While on the other hand, the State respondents have taken the plea that once 50% of the total advertised seats were reserved for para teacher category, the applicants, who at the time of submission of application, were working as para teachers, will be said to be not eligible to apply and get appointment under non-para teacher category, otherwise it will be treated to be encroaching the seats earmarked for the non-para teacher category creating imbalance in between the para teacher category and non-para teacher category. Learned Single Judge, after relying upon the order passed by the Division Bench of this Court in L.P.A. No. 186 of 2017 and analogous cases, has come to the conclusion that dispensing with the services of the writ petitioner no. 3-appellant including other writ petitioners, is absolutely unjustified and in consequence thereof, the order of reinstatement has been passed as also direction for payment of salary from the date of termination till the date of reinstatement has also been given. The said order is under challenge in the present intra-court appeal. 7. Mr. Dhananjay Kumar Dubey, learned counsel for the writ petitioner no.-3-appellant has submitted that the writ petitioner no.-3-appellant is entitled for salary from the date of reinstatement in service and not with effect 12.05.2018, after the date when the Division Bench of this Court has passed order in L.P.A. No. 186 of 2017 and analogous cases, rather he will be entitled to get salary from the date of order when he was terminated from services i.e. 02.12.2016. 8. Mr. Rahul Kumar Gupta, Sr. S.C. I appearing for the respondents-State has submitted that similar issue had fell for consideration before this Court in L.P.A. No. 793 of 2018, which was disposed of vide order dated 10.12.2019 and as such this case may also be disposed of in terms of the order passed in L.P.A. No. 793 of 2018. 9. This Court, having heard learned counsel for the parties and on going across the rival submissions made by learned counsel for the parties as also the case referred by learned counsel for the respondents-State i.e. L.P.A. No. 793 of 2018, wherein while considering the issue of "no work no pay" has come to a definite finding as would appear from paragraph no. 15, 16, 17, 18 and 19 of the aforesaid judgment, which read under as: "15. 15, 16, 17, 18 and 19 of the aforesaid judgment, which read under as: "15. This Court has proceeded to examine in the context of the present factual scenario as to whether the principle of “no work no pay” will be applicable herein. The admitted factual aspects herein is that the writ petitioners were appointed to work under the teaching category and they had also performed their duties for about 19 months but their services have been dispensed with keeping them out of service and consequent thereof, the writ petitioners were disallowed to render their services. 16. In this admitted factual aspect, it cannot be inferred that the writ petitioners were not willing to discharge their duties, rather, they were forcefully deprived from discharge of their duties and hence, as per the ratio laid down by the Hon’ble Apex Court, as referred hereinabove, the principle of “no work no pay” will not be applicable. 17. The other question is as to whether merely on account of the fact that the contention has been raised by the learned counsel for the petitioners in course of argument for payment of only 25% back wages which is contrary to the original prayer No. (B) to the writ petition, can it deprive the court of law in passing the order of full salary, if law permits. 18. This Court is of the considered view that the contention raised by the either of the parties does not bind the court rather a court has to pass the order in accordance and settled proposition of law. The learned Single Judge, although has recorded in the impugned order about the contention raised by the learned counsel for the petitioners about 25% of back wages but has directed to make payment of full salary holding the petitioners entitled for the same which cannot be said to be an unjustified direction because such direction has been given keeping in mind the position of law that “no work no pay” will not always be applicable as also since the order of termination has been held to be illegal even by a Division Bench of this Court. Thus, when the order of reinstatement has been passed, there is no reason to deny the salary since the writ petitioners have been deprived from discharging their duties forcefully and wrongfully. 19. Thus, when the order of reinstatement has been passed, there is no reason to deny the salary since the writ petitioners have been deprived from discharging their duties forcefully and wrongfully. 19. On the basis of the elaborate discussions made hereinabove, this Court is of the view that the impugned decision holding the petitioners entitled for salary cannot be faulted with." 10. The contention of the learned counsel for the writ petitioner no.-3-appellant is that the writ petitioner no.-3-appellant is entitled to get salary from 02.12.2016 and not from 12.05.2018. The aforesaid submission is based on the ground that once order of reinstatement has been passed, the writ petitioner no.-3-appellant will be treated to be in service from the date of termination i.e. 02.12.2016 and as such he will be held to be entitled for salary from 02.12.2016. It has been submitted that the date i.e. 12.5.2018, holding the writ petitioner no.-3-appellant entitled for salary is based upon the judgment referred by Division Bench of this Court in L.P.A. No. 186 of 2017 with analogous cases, which was disposed of on 11.05.2018, which cannot be a date for consideration of salary as because the termination of writ petitioner no.-3-appellant was absolutely on incorrect ground. 11. This Court in order to appreciate the aforesaid submission has travelled across the judgment rendered by Division Bench of this Court in L.P.A. No. 186 of 2017 with analogous cases, as has been appended in the paper-book, wherefrom it has been gathered that the Division Bench of this Court has not quashed the order of termination rather liberty was granted to one or the other litigants to approach the Deputy Commissioner of the concerned district for consideration of their cases and on consideration the order of reinstatement has been passed. 12. The question, thus, here would be that in a case where order of termination even if has been held to be illegal with a direction holding the writ petitioners entitled to reinstatement in service, whether such litigants would be entitled to get salary from the date of termination? 13. To reach the just conclusion, the some dates would be required to be referred herein. Admittedly, the writ petitioner no.-3-appellant was not a party to the proceeding in L.P.A. No. 186 of 2017 with analogous cases. 13. To reach the just conclusion, the some dates would be required to be referred herein. Admittedly, the writ petitioner no.-3-appellant was not a party to the proceeding in L.P.A. No. 186 of 2017 with analogous cases. The writ petitioner no.-3-appellant was terminated from services w.e.f 02.12.2016 and the writ petition [W.P. (S) No. 40 of 2017] has been filed on 05.01.2017 i.e. during pendency of the L.P.A. No. 186 of 2017 with analogous cases. However, in the decision of the aforesaid L.P.As. the reason of termination has been held to be improper, basing upon which order of termination has been quashed and set aside by holding the writ petitioners entitled for salary from 12.05.2018 till they are actually reinstated in services. The instant appeal has been preferred only to the extent of salary from 02.12.2016 to 12.05.2018. 15. We, for the following reasons, are not inclined to interfere with the order passed by learned Single Judge: (i).The order of termination of the writ petitioner no.-3-appellant from service is founded by a decision by the learned Single Judge in W.P. (S) No. 5158 of 2017 and batch matters. The order of termination has been set aside by learned Single Judge, basing upon the judgment rendered in L.P.A. No. 186 of 2017 and analogous cases, holding it to be illegal and as such learned Single Judge treating the date of order after 11.05.2018 i.e. from 12.05.2018 till they have been actually reinstated in service held the period for entitlement of the salary, which cannot be faulted with. This Court, therefore, is of the view that the learned Single Judge while passing such order, based upon the judgment passed by Division Bench in L.P.A. No. 186 of 2017 and analogous cases, has committed no illegality by following the judgment rendered in L.P.A. No. 186 of 2017 and analogous cases. This Court, therefore, is of the view that the learned Single Judge while passing such order, based upon the judgment passed by Division Bench in L.P.A. No. 186 of 2017 and analogous cases, has committed no illegality by following the judgment rendered in L.P.A. No. 186 of 2017 and analogous cases. (ii).We, also sitting in Division Bench, cannot deviate from the judgment of another Division Bench on the ground of principle of judicial discipline and further it has not been brought to the notice of this Court that judgment rendered in L.P.A. No. 186 of 2017 and analogous cases has been reversed rather it has been admitted at bar that the judgment rendered in L.P.A. No. 186 of 2017 and analogous case has not been questioned by any of the parties before the higher forum, therefore, principle of judicial discipline is to be followed, which has been followed by the learned Single Judge and as such while doing so, it cannot be said that any illegality has been committed by learned Single Judge in passing the order. (iii). As also, for the reason that in similar circumstances, this Court while dealing with similar issues in L.P.A. No. 793 of 2018, has upheld the order passed by learned Single Judge, therefore, there is no reason for this Court to come to contrary view from the judgment rendered in L.P.A. No. 793 of 2018. 16. This Court, accordingly, is not inclined to interfere with the judgment rendered by learned Single Judge. 17. Accordingly, the instant appeal fails and is dismissed.