IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.5270 of 2013 ------- Anil Kumar Pathak, son of Sri Gupteshwar Pathak, resident of village Lapra, P.O. & P.S. Mccluskiganj, District Ranchi. … Petitioner Versus 1. The State of Jharkhand.
2. The Principal Secretary, Health, Medical Education & Family Welfare Department, Nepal House, P.O. & P.S. Doranda, District Ranchi.
3. Director-in-Chief, Health Services, Namkum, Ranchi, P.O. & P.S. Namkum, District Ranchi.
4. The State Leprosy Eradication Officer, Ranchi, P.O., P.S. & District-Ranchi.
5. The Civil Surgeon-cum-Chief Medical Officer, Palamu, P.O. & P.S. Daltonganj, District Palamu.
6. Medical Officer, In-Charge Modified Leprosy Control Unit, Latehar, P.O., P.S. & District Latehar 7. The Treasury Officer, Latehar, P.O., P.S. & District Latehar. ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner in person : Mr. Anil Kr. Pathak For the Respondents : Mr. Prem Pujari Roy, Advocate ------ CAV ON2506.2015 Pronounced On ../07/2015 Per Pramath Patnaik, J.
1. In the instant writ application, the petitioner has inter alia prayed for issuance of an appropriate writ/order/direction in the nature of mandamus directing upon the concerned respondent to implement and carry out their decision contained in Memo No.331(6) dated 9.10.2003 issued by the Deputy Secretary, Government of Jharkhand regarding re-appointment of 144 retrenched employee and to reinstate the petitioner with all back wages on the post of Non Medical Assistant since 1999.
2. Sans details, facts as disclosed in the writ application in a nutshell, is that the petitioner was appointed vide Memo No.609 dated 1.6.1987 on the post of Non Medical Assistant and was 2. directed to join before the Respondent No.5 vide Annexure-1 to the writ application. Despite the order of appointment, when the petitioner was not allowed to join, the petitioner alongwith others filed writ application being C.W.J.C. No.937/1992 and the said writ application was withdrawn and the petitioner and others were allowed to join vide Memo No.730 dated 10.8.1992 vide Annexure-2 to the writ application. Thereafter, the petitioner joined on 12.8.1992 on the post of Non Medical Assistant before the Respondent No.5 at Modified Leprosy Control Unit, Latehar as evident from Annexure-3 to the writ application. Since the date of joining, the petitioner continued to discharge his duties to the satisfaction of his superior authorities till 1999. The Medical Officer In-Charge granted the certificate of services rendered by the petitioner for a period of 7 years vide letter no.60 dated 28.8.1999 and the petitioner has received his salary during the said period as evident from Annexure-6 to the writ application. It has been stated in the writ application that 144 Non Medical Assistant were retrenched by the department and in the reintrenchment list the name of petitioner finds place at Serial No.94 vide letter No.728(24) dated 2.4.2013 and the respondents have agreed to re-appoint 144 retrenched employees vide Memo No.331(6) dated 09.10.2003 as per Annexure-7 series. Some of the retrenched Non Medical Assistant filed C.W.J.C. No.3294/1999 wherein an order has been passed that the State of Jharkhand has decided to execute the decision taken vide Memo No.331(6) dated 9.10.2003 to re-appoint 144 retrenched employees under 3. Leprosy Eradication Scheme whose names figures in any of the three lists and have worked for five years continuously in the State of Jharkhand and no benefits shall be given to any other persons who are not covered by the judgment of Hon'ble High Court. It has further been stated in the writ application that one Rabindra Kumar Singh filed a writ being W.P.(S) No.5165 of 2004 for direction on the respondents to implement and carry out the decision contained in Memo No.331(6) dated 9.10.2003 issued by the Deputy Secretary, Government of Jharkhand regarding re- appointment of 144 retrenched employees. Respondent authority filed the counter-affidavit dealing with re-appointment of 144 retrenched employees on the basis of judgment passed in C.W.J.C. No.3294/1999 by the Hon'ble Patna High Court and the photo copy of the order dated 23.2.2005 passed in W.P.(S) No.5165/2004 has been annexed as Annexure-8 to the writ application. The petitioner personally met to the concerned respondent for redressal of his grievance and also has submitted his representation on 10.11.2012 before the respondent no.2 but no decision seems to have taken by the respondent.
3. Being aggrieved by, in-action of the respondents, and left with no other alternative, efficacious and speedy remedy the petitioner has invoked extra-ordinary jurisdiction under Article 226 of the constitution of India for redressal of his grievances.
4. Per-contra the respondents have filed counter-affidavit repelling the averments made in the writ application. In the counter-affidavit, it has been stated that the services of the 4. petitioner has already been terminated prior to creation of the State of Jharkhand vide memo no.84(ii) dated 8.3.1999 as per Annexure-A to the counter-affidavit. It has been submitted in the counter-affidavit that the petitioner was appointed by the Dr. Rajendra Prasad the then State Leprosy Officer in the year 1987 vide memo no.608 dated 9.6.1987, in an arbitrary and illegal manner i.e. without observing the norms laid down for selection. Subsequently, those illegal appointee took shelter of the Hon'ble High Court and got reappointment after retrenchment. Subsequently CBI enquiry was instituted which resulted in termination of those appointee by Dr. Rajendra Prasad the then State Leprosy Officer, Bihar by illegal manner i.e. without following the procedure etc. In pursuant to direction of the Hon'ble Patna High Court in the case of Nand Kumar Prasad and others vrs. State of Bihar reported in 1994(4) PLJR386the enquiry was conducted by the then Commissioner-cum-Secretary, Department of Health, Government of Bihar and found that all 467 appointments done by Dr. Rajendra Prasad the then State Leprosy Officer is in gross violation of all norms of the recruitment and constitutional provision. The State of Bihar cancelled all appointments made by Dr. Rajendra Prasad vide memo no.84(ii) dated 8.3.1999 which was challenged in a batch of writ petitions being CWJC No.3294/99 alongwith batch cases. Number of letters patent appeals were filed against the said judgment and LPA no.1067/1999 (Manoj Kumar Singh and Ors. vrs. State of Bihar and Ors.) and a batch of analogous cases 5. disposed of by the Division Bench of Hon'ble Patna High Court vide order dated 11.2.2000 by the said order, the Hon'ble Patna High Court was pleased to direct the CBI to carry out an investigation in the leprosy eradication programme in the State. It has further been stated in the counter-affidavit that CBI has given report vide dated 29.11.2001 against the illegal appointment made by Dr. Rajendra Prasad giving finding that the accused person by corrupt and illegal means and abuse of the respective positions obtained valuable things or pecuniary advantage for themselves and others. It has further been stated in the counter-affidavit that the Principal Secretary, Department of Health and Family Welfare, Government of Jharkhand vide memo no.19(HS) dated 12.12.2008 passed the order relating to the appointment made by the Rajendra Prasad the then SLO giving finding that the department cannot entertain for claim of reappointment of such persons as per Annexure-B to the counter- affidavit. Further similar situated persons who have been appointed by Dr. Rajendra Prasad the then State Leprosy Officer preferred the several writ applications before the Hon'ble Jharkhand High Court. The Hon'ble Court has been pleased to direct the respondents to decide the claim of the petitioner and the respondents have disposed of the representation by rejecting the claims vide memo dated 28.12.2011 as evident from Annexure-C, D & E respectively. It has further been stated in the counter-affidavit that the Hon'ble Jharkhand High Court also in the Civil Review No.9/2012 vide order dated 24.4.2012 quashed 6. the order passed in W.P.(S) No.6400/02 as per Annexure-F to the counter-affidavit. Accordingly, prayer has been made in the counter-affidavit for dismissal of the writ application being devoid of any merits.
5. Heard Mr. Anil Kumar Pathak, in person and Mr. Prem Pujari Roy, learned counsel appearing for the respondents. Perused the writ application, counter-affidavit and documents on record.
6. The petitioner, Mr. Anil Kumar Pathak, in person has submitted that (i) The act of the respondent in not implementing their own decision contained in Memo No.331(6) dated 9.10.2003 is against rule of promissory estopple of law; (ii) The action of the respondents in not reinstating the petitioner is arbitrary and malafide; (iii) The action of the respondents in keeping the matter pending is not just and proper; (iv) The action of the respondents is in violation of order passed by the Hon'ble Court in C.W.J.C. No.3294/1999 and W.P.(S) No.5165 of 2004; (v) Since the petitioner has continuously worked more than 5 years from the date of appointment till the date of termination, and the case of the petitioner is squarely covered by the decision of the Hon'ble High Court and the petitioner is entitled for reinstatement in service; (vi) Since the similarly situated persons are still working in the State of Bihar and the petitioner is entitled to be reinstated in service with all back wages. Apart from the aforesaid 7. submissions, the petitioner has further submitted that the case of the petitioner is squarely covered by the decisions rendered in C.W.J.C. No.3294/1999 with batch cases dated 9.8.1999 by the Hon'ble Patna High Court and the decisions in W.P.(S) No.4220/2011 dated 13.9.2011, W.P.(S) No.3931/2011 dated, C.W.J.C No.6575/2009 dated 6.10.2009, LPA No.230/2011 dated 29.3.2011, W.P.(S) No.6400/2002 dated 28.6.2011, W.P.(S) No.2918/2011 dated 12.8.2011 and W.P.(S) No.760/2010 and relying on the aforesaid decision, the petitioner ought to be considered for re-appointment and for grant of arrears of salary from the date of appointment.
7. Learned counsel for the respondents has submitted that the writ application is hopelessly barred by limitation apart from being liable for dismissal both on facts and law. Learned counsel for the respondents has submitted that cause of action arose when the petitioner was terminated prior to creation of State of Jharkhand in the year 1999. It has further been submitted that the very appointment of the petitioner was illegal and not in accordance with norms laid down for selection. Similar situated employees like the petitioner has not been given appointment or reinstatement in services so the petitioner's case does not suffer from bias, arbitrariness or inequality.
8. Having bestowed my consideration to the documents available on record and hearing the petitioner in person and learned State Counsel at length. I am of the considered view that 8. the relief sought for by the petitioner does not appear to be justified in view of the facts and reasons stated hereinbelow:- (i) That the very appointment of the petitioner as Non Medical Assistant appears to have been made illegally, de-hors the selection procedure. The very selection of Non-Medical Assistant came under scanner of CBI as disclosed in the counter-affidavit and, therefore, the termination of petitioner alongwith other similarly situated employees were dismissed by the Hon'ble High Court of Patna in C.W.J.C. No.3294/1999 alongwith batch of cases vide judgment dated 7.8.1999. (ii) The writ application has been filed in 2013 whereas cause of action arose since 1999, therefore, the writ petition is hopelessly barred by limitation and the petitioner is guilty of latches, acquiescence and waiver. (iii) The order passed by this Court in W.P.(S) No. 4220/2011 and W.P.(S) No.3931/2011, the case of the petitioner in those cases were duly considered by the Director General, Health services, Jharkhand, Ranchi dated 27.12.2011 after giving adequate opportunity to the said petitioners and their representatives, and their claim for reinstatement has been rejected. The very appointment of the petitioner was made illegally, de-hors the selection procedure. Therefore, the claim of the petitioner for reappointment with back wages since 1999 9. appears to be unjustified so as to warrant any interference by this Court.
9. On the cumulative effect of facts, reasons and judicial pronouncement and as logical sequitur to the discussion made in the preceding paragraph the writ application does not call for any interference by this Court.
10. Accordingly, the writ petition is dismissed being devoid of any merit. (Pramath Patnaik, J.) RKM/- N.A.F.R