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2021 DIGILAW 1086 (JHR)

Namita Ghosh v. State of Jharkhand

2021-12-21

S.N.PATHAK

body2021
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order dated 29.01.2016 (Annexure-7), so far it relates to the husband of the petitioner, whose name appears at S. No. 64 of the said order, by which the services of the petitioner’s husband has been terminated by the State of Bihar that too after his death. Petitioner has further prayed for a direction upon the respondents to appoint her son on compassionate ground as per the recommendation made on 30.07.2016. 3. The facts of the case lies in a narrow compass. The husband of the petitioner was appointed as Choukidar on 21.06.1978 on temporary basis and thereafter, he was appointed as peon on 21.06.1980 and on 23.08.1982 his appointment was made permanent and his service book was accordingly opened. On 01.02.1988, the petitioner was given promotion to the post of Technical Assistant by the Regional Director, Animal Husbandry Department, where the name of the petitioner stood at S. No. 20 and accordingly, on 20.02.1988, pay-scale of the petitioner was fixed. It is the case of the petitioner that at the time of death of her husband, he was posted at Primary Veterinary Hospital, Piska More, Ranchi after being transferred from Khunti on 22.12.2012. The husband of the petitioner died due to cardiac arrest on 06.01.2016 while he was in service. It is the further case of the petitioner that after death of her husband, she submitted representation for compassionate appointment of her son and 30.07.2016, the District Compassionate Appointment Committee recommended the name of the petitioner’s son for his appointment to the post of Clerk. It is the case of the petitioner that, on 23.10.1998, a general order was issued by the State of Bihar by which a decision has been taken to cancel the promotion/appointment given to the post of Technical Assistant on the ground that the Regional Director does not have power to grant promotion. Aggrieved by the said order, a number of persons moved before the Hon’ble Patna High Court in CWJC No. 12904 of 1996 along with other analogous cases and the Hon’ble Court was pleased to stay the said order dated 23.10.1998. Aggrieved by the said order, a number of persons moved before the Hon’ble Patna High Court in CWJC No. 12904 of 1996 along with other analogous cases and the Hon’ble Court was pleased to stay the said order dated 23.10.1998. The writ petitions were finally heard and vide order dated 25.11.2014, the Hon’ble Patna High Court was pleased to dismiss the writ petitions holding therein that the Regional Director does not have power to grant promotion or appoint any person on permanent post. It is the further case of the petitioner that her husband along with other similarly situated persons had also filed writ application being CWJC No. 2909 of 2000 along with other analogous cases, the Hon’ble Court was pleased to give interim relief that if the petitioners of the said case are not removed then they shall not be removed till the next date of hearing. Subsequently, the said writ applications were withdrawn on 10.11.2014, as no cause of action had arisen because no formal letter of removal or dismissal was ever passed. Meanwhile, the husband of petitioner died in harness on 06.01.2016. However, all of a sudden, the impugned order dated 29.01.2016 was passed by the State of Bihar communicating the same to the State of Jharkhand, by which the services of the husband of the petitioner along with others were terminated. In the said order, the name of petitioner’s husband appeared at Sl. No. 64, though in terms of Section 72 of the Re-organization Act, the State of Bihar not being the appointing or disciplinary authority of the petitioner’s husband, cannot terminate or dismiss the services of the petitioner’s husband. Aggrieved by the aforesaid illegal and arbitrary order of termination of services of the petitioner’s husband that too after his death, the petitioner has knocked the door of this Court. 4. Mr. Saurav Arun, learned counsel appearing for the petitioner strenuously urges that the impugned order passed by respondent-State of Bihar is contrary to law and against the established principle of service jurisprudence. Learned counsel further submits that in terms of Section 72 of the Re-organization Act, after bifurcation of the State and allocation of the cadre of the husband of the petitioner to the State of Jharkhand, the State of Bihar now not being his appointing or disciplinary authority, cannot terminate or dismiss the services of the petitioner’s husband. Learned counsel further submits that in terms of Section 72 of the Re-organization Act, after bifurcation of the State and allocation of the cadre of the husband of the petitioner to the State of Jharkhand, the State of Bihar now not being his appointing or disciplinary authority, cannot terminate or dismiss the services of the petitioner’s husband. Learned counsel further argues that the action of the respondent-State of Bihar is against the law settled by the Hon’ble Court in case of Arvind Vijay Bilung vs. State of Bihar, 2001 (3) JCR 155 and moreover, there cannot be termination or dismissal of a dead person. Learned counsel further argues that if it is presumed for the sake of argument that the Regional Director does not have power to grant promotion, then after cancelling the promotion order, the petitioner’s husband ought to have been reverted to the original post of peon but in no case, his services be terminated. Learned counsel accordingly submits that for the foregoing facts and reasons, the impugned order so far it relates to the present petitioner is concerned, is non est in the eyes of law, is fit to be quashed and set aside and a direction may be given to the respondents to appoint the petitioner’s son on compassionate ground in view of the recommendation already made by the District Compassionate Appointment Committee. 5. Per contra counter-affidavit has been filed. Learned counsel appearing for the respondents vehemently opposes the contention of learned counsel for the petitioner and argues that the instant writ application is not maintainable because the issue under adjudication has already been adjudicated upto the Hon’ble Apex Court and the impugned termination order is merely a consequential order issued in the light of various orders passed by the Full Bench of the Hon’ble Patna High Court and the instant matter has attained finality with the dismissal of several Special Leave Petitions. Learned counsel further argues that since the husband of the petitioner was illegally appointed to the post of Technical Assistant in 1988 along with others by the then Regional Director, Animal Husbandry, Ranchi but the said appointment was itself illegal, ab initio and beyond the jurisdiction of the Regional Director. After having knowledge about such illegal appointment made by the Regional Directors, Animal Husbandry Department, Govt. After having knowledge about such illegal appointment made by the Regional Directors, Animal Husbandry Department, Govt. of Bihar vide departmental letter No. 5530 dated 23.10.1998 directed the concerned Regional Directors to terminate the services of all illegally appointed employees. 6. Learned counsel further argues that rules regarding compassionate appointment dated 12.07.1977 clarifies that the compassionate appointment may be granted only if none of the members of family is employed but in the instant case, since one of the son of the petitioner is already in employment, the benefit of compassionate appointment cannot be extended to the son of the present petitioner. Learned counsel further argues that unless the order of dismissal is quashed, there is no question of giving compassionate appointment to the son of the petitioner. 7. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that no case is made out for interference for the following facts and reasons: (I) The State of Bihar took a general decision to cancel the appointment of the petitioner’s husband and other similarly situated persons way back in the year 1998 itself, when the State of Jharkhand was not in existence. (II) The decision of the State of Bihar was finally affirmed by the Hon’ble Patna High Court by its Full Bench Judgment dated 25.11.2014, passed in CWJC No. 12904 of 1996 (Sir Sashibhushan Kumar vs. State of Bihar and Others) and other analogous cases in view of which earlier order of State of Bihar passed in the year 1998 came into force. So it cannot be said that the order of termination was issued by the State of Bihar after bifurcation of the State. The contention of learned counsel for the petitioner in this regard, is totally misconceived. (III) The decision to terminate the services of the petitioner’s husband was already taken way back in the year 1998 but it could not be given effect to due to stay granted by the Hon’ble Patna High Court. The said order was affirmed by the order passed by the Full Bench of Hon’ble Patna High Court on 25.11.2014. (III) The decision to terminate the services of the petitioner’s husband was already taken way back in the year 1998 but it could not be given effect to due to stay granted by the Hon’ble Patna High Court. The said order was affirmed by the order passed by the Full Bench of Hon’ble Patna High Court on 25.11.2014. The said order of termination came into force prior to bifurcation of the State and prior to the death of the petitioner’s husband, so the contention of learned counsel for the petitioner that the order has been passed after death of the petitioner’s husband is also not tenable in the eyes of law and not acceptable to this Court. 8. The judgment of passed in case of Arvind Vijay Bilung vs. State of Bihar, 2001 (3) JCR 155 , relied upon by the learned counsel for the petitioner, is not applicable in the instant case, as it is distinguishable on the facts as well as on law. In the case in hand, the appointment of the petitioner’s husband was declared illegal by the State of Bihar way back in the year 1998, much prior to his death and before bifurcation of the State. The further reliance of learned counsel for the petitioner in case of Anita Sinha vs. State of Jharkhand, W.P. (S) No. 1764 of 2003, is also not applicable in the instant case since the appointment of petitioner’s husband of W.P. (S) No. 1764 of 2003 was said to be illegal on the face of a circular issued after death of petitioner’s husband of that case but in the case in hand, termination order was issued in the year 1998 much prior to the death of the husband of present petitioner. 9. The contention of learned counsel for the petitioner that Regional Deputy Director was fully empowered for appointment is also not acceptable in view of the Full Bench Judgment of Hon’ble Patna High Court dated 25.11.2014, wherein the Hon’ble Court has observed that “In my view, the appointment of the writ petitioners was totally illegal and arbitrary, the least that the State Government could do is to get rid of such employees appointed on extraneous consideration in utter disregard of the principle of equality enshrined in Articles 14 and 16 of the Constitution. Thereafter, the termination orders of the illegally appointed employees including petitioner’s husband issued by the Departmental Letter No. 5530 dated 23.10.1998 became fully effective and operational. In compliance of the said order vide letter No. 217 dated 29.01.2016, the Animal Husbandry Directorate, terminated the services of 90 employees including the husband of the petitioner.” 10. The order passed by the Full Bench of Hon’ble Patna High Court dated 25.11.2014, was tested before the Hon’ble Apex Court in SLP (C) No. 36189 of 2014 (Nasimuddin and Others vs. State of Bihar), SLP (C) No. 9389 of 2015 (Ranjan Kumar and Others vs. State of Bihar and Others), SLP (C) No. 9772 of 2015 (Arbind Kumar and Another vs. State of Bihar and Others), which were also dismissed by the Hon’ble Apex Court vide its order dated 07.01.2015, 01.04.2015 and 21.08.2015 respectively. Thereafter, review petitions were also preferred which stood dismissed by an order dated 12.03.2015 by the Hon’ble Apex Court. Hence, the present issue of termination of services of the petitioner’s husband has been set at rest upto the Hon’ble Apex Court. 11. The Hon’ble Apex Court in case of State of Bihar vs. Upendra Narayan Singh and Others, (2009) 5 SCC 65 , has observed that, “the basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination.” After extensive discussion on the basis principle and plethora of judgments on the issue, the Hon’ble Court has upheld the action of the State Government. The said decision of the Hon’ble Supreme Court is binding and as such, it is clear that the Regional Director is not empowered to make appointments indiscriminately, at his will or without following due process of selection. Admittedly, the appointment of petitioner’s husband was made contrary to all canons of service jurisprudence, since the Regional Director had not invited any application by public notice and neither the petitioner’s husband along with other similarly situated persons had faced any competition for their selection. They were offered the employment on a platter without following due process of law. As such, the appointment of the petitioner’s husband was ex facie bad, illegal and untenable. 12. The Hon’ble Apex Court in case of State of Bihar vs. Upendra Narayan Singh and Others (supra) has held as under: “65. They were offered the employment on a platter without following due process of law. As such, the appointment of the petitioner’s husband was ex facie bad, illegal and untenable. 12. The Hon’ble Apex Court in case of State of Bihar vs. Upendra Narayan Singh and Others (supra) has held as under: “65. Therefore, it is further held that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits. 67. It is settled that the guarantee of equality before law enshrined in Article-14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.” 13. Even judgment passed by the Hon’ble Apex Court in the case of State of Karnataka and Others vs. Uma Devi, (2006) 4 SCC 1 and State of Karnakata and Others vs. M.L. Keshari, (2010) 9 SCC 247 are not attracted in the instant case. The petitioner’s son is not entitled for even compassionate appointment on the premises that initial appointment of the petitioner’s husband was illegal and since the service stood dismissed, the question of compassionate appointment does not arise. The recommendation of the Committee was malice in law as well as on fact and even on the ground that one son of the deceased-employee is already in employment. 14. The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the Court and wait for justice for years together. 15. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the writ petition being devoid of any merit, is hereby dismissed. 16. No order as to cost.