Arbind Kumar Vs. State of Bihar and ors.

Arbind Kumar vs State of Bihar and ors.

Disposition Writ allowed Court Jharkhand Decided Oct 31, 2002

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Citation: sooperkanoon.com/522224
Court: Jharkhand High Court
Judge: M.Y. Eqbal, J.
Decided On: Oct 31, 2002
Case Number: CWJC No. 991 of 1995
Subject: Service
Disposition: Writ allowed

Case Summary

AI-generated summary - not the official court judgment text.

Service laws - Regularisation of service--in Class III post--Petitioner was appointed on compassionate ground In class III post as Junior Assistant-Worked on that post for more than five years--His services regularised in Class IV post--Since petitioner was possessing requisite qualification for appointment in Class...

Key legal issue: Service
Outcome / disposition: Writ allowed
Acts & sections: Service Law; Constitution of India - Article 226

Parties & Advocates

Appellant / Petitioner

Arbind Kumar

Advocate V. Shivnath,; M.B. Lal,; M. Chandra,;

Respondent

State of Bihar and ors.

Advocate R.S. Mazumdar,; G.A. and; A. Banerjee, Advs.

Legal References

Acts: Service Law; Constitution of India - Article 226
Reported In: 2002(50)BLJR2403

Excerpt

.....roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....for approval. according to the respondents the competent authority after considering the letter and circular of the year 1992 and 1994 issued from the water resource department came to the conclusion that the chief engineer has, got no power to make appointment on compassionate ground. accordingly direction was issued to regularize the petitioner in class iii post. in my opinion, the stand of the respondents is wholly unjustified and without any basis. as noticed above, petitioner was possessing requisite qualification for appointment in class iii post after the death of his father who died in harness working as junior engineer. petitioner continuously worked from 1987 to 1992 in class iii post and there was no reason at all to regularize him in class iv post. such action of the respondents is arbitrary and unjustified. 7. for the reason aforesaid, this writapplication is allowed and the impugnedorder is set aside and it is directed thatpetitioner shall be regularized on the postof assistant (class iii post). however, in thepeculiar facts of the case, petitioner shallnot be entitled to any difference of wagesfor the period he was allowed to work inclass. iv post.

Full Judgment

M.Y. Eqbal, J.

1. Petitioner has prayed for quashing the order as contained inMemo No. 1442, dated 23.7,1994 which has been passed in compliance of the order dated 16.3.1994 passed in CWJC No. 123 of 1994 (R) and further for a direction to regularize the service of the petitioner in Class III post.

2. There is no need to discuss the fads of the case as it will reflect from the order dated 16.3.1994 passed by Division Bench of this Court in the earlier writ petition filed by the petitioner being CWJC No. 123/94R. The order reads as under :--

'Heard learned counsel for the petitioner and learned counsel for the respondents.

The petitioner was appointed on 13.11.1987 on the Post of Junior Assistant for a period of six months on compassionate ground. His services have been extended for time to time as would be evidence from the order contained in Annexure-3 Series. However, by reason of the impugned order dated 21.12.1992 (Annexure-5), the services of the petitioner has been regularized in Class IV post. As the petitioner had initially been appointed in Class III post on compassionate ground, we do not find any reason whatsoever as to why the petitioner at this stage should have been appointed in Class IV post. However, at the time of initial appointment of the petitioner, he was found fit for appointment in Class III post. In our opinion, there cannot be any earthly reason as to why after putting him in work for more than five years, he had been found fit for regular appointment in Class IV post.

In this view of the matter, we dispose of the writ application by directing respondent No. 4 to consider the matter afresh and pass appropriate order in accordance with law within two months from the date of receipt/production of a copy of this order.'

3. In compliance of the aforesaid order the concerned respondent passed the impugned order justifying the regularization of the petitioner in Class IV post.

4. I have heard Mr. V. Shivnath, learned counsel for the petitioner and Mr.R.S. Mazumdar, learned Government Advocate.

5. Admittedly after the death of the father of the petitioner he was appointed in 1987 on the post of Assistant by order of the Chief Engineer. Petitioner's service was time to time extended from 1987 to 19.92 and he was finally allowed to work against the sanctioned post of Junior Assistant (Class III, post) in anticipation of approval of competent authority. It is also not disputed that this petitioner was possessing requisite qualification for appointment on the post of Assistant and he has been continuously and successfully worked on the post of Assistant from 1987 to 1992. However, all of a sudden by office order dated 13.1.1993 the Chief Engineer posted the petitioner in Class IV post which is under challenge.

6. The stand of the respondents in the counter affidavit is that the appointment of the petitioner was made provisionally in 1987 and the matter was referred to the competent authority for approval. According to the respondents the competent authority after considering the letter and circular of the year 1992 and 1994 issued from the Water Resource Department came to the conclusion that the Chief Engineer has, got no power to make appointment on compassionate ground. Accordingly direction was issued to regularize the petitioner in Class III post. In my opinion, the stand of the respondents is wholly unjustified and without any basis. As noticed above, petitioner was possessing requisite qualification for appointment in Class III post after the death of his father who died in harness working as Junior Engineer. Petitioner continuously worked from 1987 to 1992 in Class III post and there was no reason at all to regularize him in Class IV post. Such action of the respondents is arbitrary and unjustified.

7. For the reason aforesaid, this writapplication is allowed and the impugnedorder is set aside and it is directed thatpetitioner shall be regularized on the postof Assistant (Class III post). However, in thepeculiar facts of the case, petitioner shallnot be entitled to any difference of wagesfor the period he was allowed to work inClass. IV post.

Same Court & Year Jharkhand · 2002 Same Parties Arbind Kumar vs State of Bihar and ors. Same Subject Service Same Judge M.Y. Eqbal, J. Acts & Sections Service Law; Constitution of India - Article 226

Service