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2020 DIGILAW 835 (JHR)

Rajesh Kumar Srivastava v. State of Jharkhand

2020-09-02

DEEPAK ROSHAN

body2020
JUDGMENT : Heard Mr. Prabhat Kumar Sinha, learned counsel for the petitioner and Mr. Rohit Sinha, learned counsel for the respondent State through V.C. 2. The instant application has been preferred by the petitioner for quashing and setting aside the order as contained in memo no.1097 dated 18.09.2015 (Annexure-14), whereby the services of the petitioner has been terminated with retrospective effect i.e. 21.11.2011. 3. The case of the petitioner is that he was appointed as Technical Assistant for the Frozen Semen Bank Project on ad hoc basis for six months vide order issued by the Regional Deputy Director, Animal Husbandry on 27.01.1990 whereupon the petitioner made his joining. Subsequently, the appointment of the petitioner was extended till further order by the Regional Joint Director vide order dated 20.09.1990 and the petitioner continued to work on the post of Technical Assistant for the Frozen Semen Bank Project till 23.10.1998, when the Director, Animal Husbandry vide order dated 23.10.1998 decided to cancel the appointment of the petitioner on the ground that the Regional Director had no jurisdiction to make such appointment. The petitioner challenged the said order before the Hon'ble Patna High Court in C.W.J.C. No.1792 of 1999 and the said Writ application was disposed of vide order dated 14.10.1999 by giving liberty to the authorities to decide the case after giving opportunity to the petitioner and it was also directed that until final decision is taken, the petitioner shall not be disturbed from his job. 4. Pursuant to the aforesaid order passed by the Hon'ble Patna High Court, a reasoned order as contained in memo no.1226 dated 12.06.2006 declared the appointment of the petitioner as illegal and terminated the service of the petitioner from the date of the issuance of the order itself. 5. Similarly situated employees like that of petitioner, carried the issue of termination before the Hon'ble Supreme Court of India in the case of Uma Kant Sinha and others and the Hon'ble Apex Court vide its judgment dated 23.07.2003 directed the State of Jharkhand to consider at the earliest for recruiting Technical Assistant for the Frozen Semen Bank Project and to fill up the existing vacancies within a period of 3 months from the date of the order. The Hon'ble Apex Court also observed that the applicants whose services were terminated may apply to Secretary of the Animal Husbandry Department for reappointment or for regularisation of their services and the committee shall consider the eligibility, suitability and past record of the applicants as per the rules. A further direction was also given that the committee shall give relaxation of age and weightage over the outsiders. 6. A matter of similar nature again went up to the Hon'ble Apex Court in the case of Abhay Kumar and others being Civil Appeal No.2018 of 2006 in connection with the persons who were appointed to the post of Technical Assistant during the period of 1988-1992 on ad hoc basis. The Hon'ble Apex Court vide its order dated 10.04.2006 directed the respondents authority to advertise in the local newspapers for holding of selections for the purpose of filling of those vacancies, which according to the rules are to be filled by direct appointment. 7. It is the case of petitioner that since he was also appointed in the year 1990 and was fully covered by the direction given by the Hon'ble Apex Court as such, he submitted his application pursuant to open advertisement. Thereafter, admit card was issued in his favour for appearing in the written examination to be held on 07.10.2007. In the said examination the result was published and the name of the petitioner was placed at serial No.6. Thereafter, the respondent authorities published the name of successful candidates who have been recommended for verification and as per the said advertisement the petitioner was required to appear on 23.10.2008. Subsequently, the Departmental Selection Committee held its meeting on 26.06.2010 and recommended the petitioner in the General category on the basis of merit for appointment to the post of Technical Assistant and vide order dated 19.08.2010, the petitioner was appointed to the post of Technical Assistant on the basis of recommendation made by the selection committee. 8. Subsequently, the Departmental Selection Committee held its meeting on 26.06.2010 and recommended the petitioner in the General category on the basis of merit for appointment to the post of Technical Assistant and vide order dated 19.08.2010, the petitioner was appointed to the post of Technical Assistant on the basis of recommendation made by the selection committee. 8. The further case of the petitioner is that all of a sudden, a letter dated 19.10.2011 was issued by respondent No.4 directing respondent No.5 to issue show cause notice to the petitioner and pursuant thereto, a show cause notice was issued to him and the petitioner filed its reply taking the ground that the name of the petitioner was at serial No.6 in the merit list prepared pursuant to the written examination; the result of which was published on 26.06.2010 and further the petitioner was at serial No.71 in the merit list prepared by the Departmental Selection Committee in its meeting held on 04.06.2011. The respondent sat tight over the matter and the petitioner was allowed to work continuously for about four years and suddenly the Respondent No.3 vide his order as contained in memo No.1097 dated 18.09.2015 passed the impugned Order whereby the service of the petitioner was terminated with retrospective effect w.e.f. 21.11.2011. Thus, the petitioner worked till 18.09.2015. 9. Mr. Prabhat Kumar Sinha, learned counsel for the petitioner draws attention of this Court towards Annexure-7 of the Writ application wherein his position has been given at serial No.71 and marks obtained is 144. He further draws attention of this Court to the counter affidavit filed by the State on 20.01.2016, wherein the merit list has been annexed in which it transpires that no weightage marks has been given to the petitioner. Learned counsel contended that from the counter affidavit filed on 20.01.2016, the deponent has categorically stated that “The said committee didn't give weightage of 90 marks to petitioner as because petitioner was not an appellant in the Hon'ble Supreme Court and he (petitioner) could not be selected.” 10. Learned counsel for the petitioner further relied upon the judgment passed in the case of Md. Irfan Gani and others vs. State of Jharkhand & Ors. reported in 2015 4 JLJR 253 and contended that his case is on better footing. In the case of Md. Learned counsel for the petitioner further relied upon the judgment passed in the case of Md. Irfan Gani and others vs. State of Jharkhand & Ors. reported in 2015 4 JLJR 253 and contended that his case is on better footing. In the case of Md. Irfan Gani (supra) the petitioners of that case were not appointed, whereas this petitioner was duly appointed and worked till 2015. As a matter of fact when his services were terminated with retrospective effect from 2011 he was forced to file a separate writ application for salary which was allowed in his favour and the salary was paid for those period. 11. Mr. Rohit Sinha, learned counsel for the respondent submits that the department had filed its counter affidavit dated 11.01.2012 stating therein that the petitioner was selected earlier on the recommendation of Departmental Selection Committee in its meeting held on 26.06.2010. However, pursuant to the order of the Hon'ble Supreme Court of India passed in I.A. No.13-14 in Civil Appeal No.2018/2006 in the case of Abhay Kumar and others versus State of Jharkhand on 04.05.2011; the Departmental Selection Committee in its meeting dated 04.06.2011, in the light of order dated 04.05.2011 of Hon'ble Supreme Court, reconsidered the proceeding of its earlier meeting dated 26.06.2010 and adopting the parameters as laid down by the Hon’ble Apex Court, the committee recommended candidates for the post of Technical Assistant. He further submits that the said committee didn't give weightage of 90 marks to this petitioner as because petitioner was not an appellant before the Hon'ble Supreme Court and he could not be selected. Learned counsel further stated that weightage of marks has not been given to the petitioner in preparing the merit list. 12. Thus, the only question requires to be decided in this case is ; “whether the petitioner is entitled for the weightage of 90 marks which were given to similarly situated persons in terms of order passed by the Hon'ble Apex Court”. 13. Having heard learned counsel for the parties and after going through the material available on record it appears that it is an admitted position that the authorities has rejected the show cause reply filed by the petitioner on the ground that since the petitioner was not the party before the Hon'ble Apex Court as such, he is not entitled for the weightage of marks. As a matter of fact, this contention has also been reiterated in the counter affidavit filed by the respondent wherein it has been stated that the committee did not give weightage of 90 marks to the petitioner as because petitioner was not an appellant in the Hon'ble Apex Court as such, he could not be selected. Similar issue came up before this Court in the case of Md. Irfan Gani (supra) wherein this Court has held that pursuant to the advertisement published on 28.08.2004, benefit of age relaxation was given but the petitioner was not given weightage as a result of which 90 marks could not be given to the petitioner for which he was duly entitled. At this stage it is also relevant to refer the order passed by Hon'ble Apex Court in the case of Abhay Kumar and others (I.A. No.13-14 in Civil Appeal No.2018 of 2006) wherein the Hon'ble Apex Court has directed the State as under: “In view of the Government’s own stand that cut off marks for the merit list should be 25% that is 75 out of 300, and in respect of Scheduled Castes and Scheduled Tribes, no minimum cut off marks was prescribed, we direct the State of Jharkhand to appoint the remaining ad hoc employees on the parameters which have been fixed by the Government itself as mentioned in the affidavit filed on 9th April, 2005. Let this be done within six weeks from today.” 14. From record it clearly transpires that the petitioner did apply, pursuant to the advertisement published on 29.07.2006 and benefit of age relaxation was given to him but he was not given weightage of marks, as a result of which, 90 marks could not be added to the marks fetched by the petitioner in the selection process and if 90 marks are added in the marks fetched by petitioner, he would be getting much more marks than the persons similarly situated who have been selected. The stand of the respondent that since the petitioner was not an appellant before the Hon'ble Apex Court as such, he is not entitled for weightage of marks is not in accordance with law and cannot be accepted. 15. The stand of the respondent that since the petitioner was not an appellant before the Hon'ble Apex Court as such, he is not entitled for weightage of marks is not in accordance with law and cannot be accepted. 15. It further appears that the Hon'ble Apex Court has given a direction to the State Government to appoint the remaining ad hoc employees on the parameters which have been fixed by the Government itself. It is surprising that how the respondent State on the one hand has given the benefit of age relaxation to the petitioner but on the other hand has denied the benefit of weightage of marks which has been clearly admitted in their counter affidavit. Further; it has been demonstrated during course of hearing that in case 90 marks are added in the marks fixed by this petitioner, he could be getting more marks than other persons who have been selected. 16. In this view of the matter, I hereby quash and set aside the order of termination dated 18.09.2015 and remit the case back to the respondent No.3 to decide the case of the petitioner afresh and pass a reasoned and speaking order in the light of judgment passed by this Court in the case of Md. Irfan Gani (supra) and if it is found that by adding the weightage marks the petitioner is on better footing with those persons who have already been appointed and doing job then the same relief should be given to him. Thus, the question has been decided in favour of the petitioner. It is made clear that the entire exercise shall be completed within a period of four months from the date of receipt/production of the copy of this order. 17. With the aforesaid observations and directions, the instant writ application is allowed and disposed of. Pending I.A., if any, is also disposed of.