Hare Krishna Singh and Shiv Shankar Pandey Vs. the State of Jharkhand and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/514782
SubjectService
CourtJharkhand High Court
Decided OnJan-09-2009
Judge D.G.R. Patnaik, J.
Reported in[2009(1)JCR582(Jhr)]
AppellantHare Krishna Singh and Shiv Shankar Pandey
RespondentThe State of Jharkhand and ors.
DispositionApplication allowed
Cases Referred and Basudeo Tiwary v. Sido Kanhu University and Ors.
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - in the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. as pointed out by the court in the case of diwakar giri (supra), it is well settled that any action by the department against the government servant must be fair, just and reasonable.d.g.r. patnaik, j.1. petitioner hare krishna singh was appointed on the post of constable by the authority of the director general of police, bihar, patna in april, 1997. the petitioner shiv shankar pandey was also appointed to the post of constable by the authority of the deputy inspector general of police - cum - chairman, selection board in march, 1986.at the time of their appointment, both of them had qualified in the physical measurement and medical tests and their appointment was made only after they were found fit for the post. both of them were sent for police training and they successfully completed the training and thereafter both of them obtained the status of police constables in permanent cadre. after the re-organization of the state of bihar, the services of both the petitioners were allocated to the state of jharkhand. while both the petitioners were enjoying the benefits of their permanent appointment in the police cadre, the petitioners were informed that in the year 2002 a general letter was issued from the office of the director general of police, bihar, patna vide memo no. 1046 dated 07.03.2002 declaring therein that the appointment of the petitioners was made by shri s.k. saxena, the then director general of police, bihar, patna in special circumstances and such appointment being illegal on account of the fact that the selection of the petitioners was not made in accordance with the rules of procedure, their appointments were illegal. a decision to dismiss the services of the petitioners and such other constables, who were appointed by the order of the then director general of police, was taken. a list of all such appointees was prepared including the names of the present petitioners. pursuant to the aforesaid letter of the director general of police, bihar, patna, his counter part in the state of jharkhand, namely, the director general of police, jharkhand, ranchi issued a directive to all the concerned superintendents of police of take appropriate steps for dismissal of the services of persons whose names figured in the list. pursuant to the aforesaid direction, the superintendents of police under whom the petitioners were employed, terminated the services of the petitioners vide the impugned order namely annexure-6 in the case of the petitioner hare krishna singh and annexure-3 in the case of the petitioner shiv shankar pandey. such termination of their services was made after seven years of continuous service in the case of petitioner hare krishna singh and 18 years of continuous service in the case of the petitioner shiv shankar pandey.2. the petitioners in these writ applications have challenged the impugned orders of termination of their services (annexure-6 and annexure-3 respectively). the main grounds on which the impugned orders have been assailed are that before terminating their services, no reasonable opportunity was given to them to defend their case nor was any departmental proceeding initiated against them on the basis of any charges. it is further pleaded that the appointment of the petitioners cannot be termed as an appointment made against the rules of procedure and therefore illegal, since their appointment was made according to the administrative orders of the director general of police on special grounds and the rules framed for appointment on special/compassionate grounds does not require strict adherence to the general procedure for recruitment. in the case of the petitioner shiv shankar pandey, his appointment was made by the deputy inspector general of police who was also the chairman of the selection board. it is further pleaded that after accepting the petitioners in permanent cadre and having allowed them to work continuously for more than 7 years and 18 years respectively, it is totally unjust and against the principles of natural justice and equity to abruptly terminate the services of the petitioners without giving them any opportunity of being heard against the proposed termination. such order of termination is arbitrary in view of the fact that even in the state of jharkhand, appointments of more than 36 constables have been made on special/compassionate grounds on considering their exemplary courage shown on occasions of crisis. such appointments were made by relaxing the rules of recruitment. both the petitioners also deserve the same benefits since their appointment was made on special consideration of their exemplary courage which both of them had demonstrated on occasion of crisis.3. in support of their claim, the petitioners have relied upon the following judgements:(i) division bench judgement of this court passed in the case of the state of bihar and ors. v. kamal chandra sah in l.p.a. no. 221 of 2008.(ii) single bench judgement of the patna high court passed in the case of md. manzoor alam v. state of bihar and ors. vide c.w.j.c. no. 12005 of 2006.(iii) single bench judgement of the patna high court passed in the case of kamal chandra sah v. state of bihar and ors. reported in 2006(3) pljr 468.(iv) single bench judgement of this court in the case of md. suhail alam v. state of jharkhand and ors. vide w.p.(s) no. 2760 of 2006.(v) division bench judgement of this court in the case of diwakar giri v. state of jharkhand, 2007(1) j.c.r. 412.4. in the counter affidavit filed by the respondents, the stand taken by them is that the dismissal of the petitioners was made by the order of the director general of police, bihar, patna vide memo no. 1046 dated 07.03.2002 on the ground that their appointment was illegal. on receipt of a communication issued by the office of director general of police, bihar, patna of the order of dismissal of the appointees on the ground that their appointment was not made by the selection committee, the director general of police, jharkhand, ranchi vide his office memo no. 1593 dated 29.04.2002, issued a direction to all the superintendents of police within the state to take appropriate steps for dismissal of the services of the persons whose names figured in the list enclosed to the letter issued by the office of the director general of police, bihar, patna. pursuant to the aforesaid direction, the concerned superintendents of police issued show cause notices to the concerned appointees including the present petitioners calling upon them to submit their show cause replies and to defend themselves. the show cause replies submitted by the petitioners being found not satisfactory, their services were terminated in accordance with rule 828(b) of the bihar police manual and the impugned orders of dismissal from service were communicated to the petitioners respectively. it is contended that since the appointment of the petitioners was not made in accordance with the rules of procedure and not made on the recommendation of the appointment committee, their appointment is ab initio illegal and the petitioners cannot legitimately claim to continue in service.relying upon several judgements of this court as also of the patna high court and that of the supreme court, the respondents have claimed that the termination of the petitioners' services was absolutely legal and proper. the respondents in support of their stand have relied upon the following judgements:(i) division bench judgement of this court passed in the case of seema devi v. state of jharkhand reported in 2005(2) jljr 337.(ii) single bench judgement of this court in the case of ishwar bahadur thapa and anr. v. state of jharkhand and ors. reported in 2008(2) jljr 490.(iii) supreme court judgement in the case of secretary, state of karnataka and ors. v. uma devi and ors. reported in : (2006)iillj722sc .5. from the counter affidavit as also the submissions made by the learned counsel for the respondents, i find that the following statement of facts pleaded by the petitioners have not been denied:(a) that both the petitioners were appointed by the authority of the then director general of police, bihar patna on special grounds on the basis of their demonstrating exemplary courage on occasion of crisis.(b) that though the bihar police manual under rule 661b lays down a procedure for recruitment of constables in the police service, the rules could be and were in fact relaxed by the state government in just and appropriate cases for rewarding such persons who had shown exemplary bravery and courage on occasion of crisis.(c) that no departmental proceeding was initiated against either of the petitioners on any charge of misconduct or on the ground that they had obtained their appointments illegally by misrepresentation.6. in the case of diwakar giri (supra), a division bench of this court while referring to the judgements of the supreme court in the case of gulzar singh v. sub divisional magistrate and anr. : air1999sc3803 and basudeo tiwary v. sido kanhu university and ors. : (1999)illj200sc has recorded the following observations:the law is settled that non-arbitrariness is an essential facet of article 14 pervading the entire realm of state action governed by article 14. it has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is the requirement of article 14, for natural justice is the antithesis of arbitrariness. in the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. the conferment of absolute power to terminate the services of an employee is an antithesis to fair, just and reasonable treatment.in the light of the above observations of the supreme court, the division bench of this court while considering a similar issue as raised by the petitioners in the instant cases, has made the following observations:even assuming that the appointment was not made in accordance with the rules and regulations, the authority concerned should have conducted the enquiry and should have given an opportunity to the petitioner in order to enable him to establish that the appointment was legal.admittedly, no such opportunity has been given to the petitioners by the authority concerned before concluding that the appointment was illegal. as pointed out by the court in the case of diwakar giri (supra), it is well settled that any action by the department against the government servant must be fair, just and reasonable. if the opportunity has not been given, holding that his appointment was irregular and unauthorised, it amounts to violation of natural justice.7. in the instant case as observed above, the termination of the services of the petitioners was made only on the basis of a communication received from the office of the director general of police, bihar, patna suggesting that the appointments of the present petitioners and several others, were not made in accordance with the rule 661b of the bihar police manual. since neither of the petitioners continued to remain under the services of the bihar government, the director general of police, bihar, patna could not have exercised any authority to terminate the services of either of the petitioners who were employed under the state government of jharkhand.furthermore, even though the government of bihar by making the police manual and by providing rule 661b therein, had directed all its officers including the director general of police to recruit the constables in the manner as has been provided in the said rule, it was open to the state government of bihar to make a departure from that rule in appropriate cases. the rules were admittedly relaxed by the government of bihar in appropriate and deserving cases for the purpose of rewarding persons who had shown exemplary courage on occasions of crisis. such relaxation, no doubt, could not have been made by any individual officer. it further appears that many appointments were made on special grounds during the tenure of mr. s.k. saxena, the then director general of police, bihar. those appointments were investigated, and the investigation revealed that some of such appointments were illegal and instructions were accordingly issued to terminate the services of such illegal appointees. however, in the instant case, the consistent claim of the petitioners, as stated by them even in their show cause replies submitted to their respective superintendents of police, is that their appointment to the post of constables were made on the basis of the relaxed rules and after their undergoing the physical and medical tests and on being found successful in such tests. as such, before deciding to terminate the services of the petitioners, an enquiry ought to have been conducted to find out as to whether at the relevant time, a relaxation was made by the state government of bihar in rule 661b of the bihar police manual in order to reward the persons who had shown exemplary courage on occasions of crisis and whether the petitioners were infact the recipients of the benefits of the relaxed rules.in the instant cases, before deciding to terminate the services of the petitioners, no such enquiry was conducted to find out as to whether the appointments of the petitioners were made on the basis of the relaxed rules of the state government or merely under the assumed authority of the then director general of police. no opportunity was given to either of the petitioners to rebut the presumption that their appointment was made contrary to the rules.8. learned counsel for the respondents has placed reliance on the judgement of this court in the case of seema devi (supra) and in the case of uma devi (supra). in the facts of the present cases, neither of these judgements would apply since in both the cases, the issue raised was that of illegal appointment, such appointment being void ab initio on the ground that they were not made in accordance with the rules of procedures. in the instant case on the contrary, no enquiry at all was conducted to record a definite finding that the appointment of the petitioners was illegal on the ground that such appointment was not made in consonance with the rule 661b of the bihar police manual or under the relaxed rules thereunder. even in seema devi's case, the division bench of this court has held that no order of dismissal or termination of services can be passed unless having informed in writing the grounds on which it is proposed to take action and afford adequate opportunity of defending. on the other hand, the judgement of the division bench of this court in the case of diwakar giri would squarely apply to the case of present petitioners.9. in the light of the above discussions, i find merit in these applications. accordingly, the same are allowed. the impugned orders annexure-6 passed by the superintendent of police, deoghar and annexure-3 passed by the superintendent of police, sahebganj are hereby quashed.
Judgment:

D.G.R. Patnaik, J.

1. Petitioner Hare Krishna Singh was appointed on the post of Constable by the authority of the Director General of Police, Bihar, Patna in April, 1997. The petitioner Shiv Shankar Pandey was also appointed to the post of Constable by the authority of the Deputy Inspector General of Police - cum - Chairman, Selection Board in March, 1986.

At the time of their appointment, both of them had qualified in the physical measurement and medical tests and their appointment was made only after they were found fit for the post. Both of them were sent for police training and they successfully completed the training and thereafter both of them obtained the status of Police Constables in permanent cadre. After the re-organization of the State of Bihar, the services of both the petitioners were allocated to the State of Jharkhand. While both the petitioners were enjoying the benefits of their permanent appointment in the Police Cadre, the petitioners were informed that in the year 2002 a general letter was issued from the Office of the Director General of Police, Bihar, Patna vide Memo No. 1046 dated 07.03.2002 declaring therein that the appointment of the petitioners was made by Shri S.K. Saxena, the then Director General of Police, Bihar, Patna in special circumstances and such appointment being illegal on account of the fact that the selection of the petitioners was not made in accordance with the rules of procedure, their appointments were illegal. A decision to dismiss the services of the petitioners and such other constables, who were appointed by the order of the then Director General of Police, was taken. A list of all such appointees was prepared including the names of the present petitioners. Pursuant to the aforesaid letter of the Director General of Police, Bihar, Patna, his counter part in the State of Jharkhand, namely, the Director General of Police, Jharkhand, Ranchi issued a directive to all the concerned Superintendents of Police of take appropriate steps for dismissal of the services of persons whose names figured in the list. Pursuant to the aforesaid direction, the Superintendents of Police under whom the petitioners were employed, terminated the services of the petitioners vide the impugned order namely Annexure-6 in the case of the petitioner Hare Krishna Singh and Annexure-3 in the case of the petitioner Shiv Shankar Pandey. Such termination of their services was made after seven years of continuous service in the case of petitioner Hare Krishna Singh and 18 years of continuous service in the case of the petitioner Shiv Shankar Pandey.

2. The petitioners in these writ applications have challenged the impugned orders of termination of their services (Annexure-6 and Annexure-3 respectively). The main grounds on which the impugned orders have been assailed are that before terminating their services, no reasonable opportunity was given to them to defend their case nor was any departmental proceeding initiated against them on the basis of any charges. It is further pleaded that the appointment of the petitioners cannot be termed as an appointment made against the rules of procedure and therefore illegal, since their appointment was made according to the administrative orders of the Director General of Police on special grounds and the rules framed for appointment on special/compassionate grounds does not require strict adherence to the general procedure for recruitment. In the case of the petitioner Shiv Shankar Pandey, his appointment was made by the Deputy Inspector General of Police who was also the Chairman of the Selection Board. It is further pleaded that after accepting the petitioners in permanent cadre and having allowed them to work continuously for more than 7 years and 18 years respectively, it is totally unjust and against the principles of natural justice and equity to abruptly terminate the services of the petitioners without giving them any opportunity of being heard against the proposed termination. Such order of termination is arbitrary in view of the fact that even in the State of Jharkhand, appointments of more than 36 constables have been made on special/compassionate grounds on considering their exemplary courage shown on occasions of crisis. Such appointments were made by relaxing the rules of recruitment. Both the petitioners also deserve the same benefits since their appointment was made on special consideration of their exemplary courage which both of them had demonstrated on occasion of crisis.

3. In support of their claim, the petitioners have relied upon the following judgements:

(i) Division Bench Judgement of this Court passed in the case of the State of Bihar and Ors. v. Kamal Chandra Sah in L.P.A. No. 221 of 2008.

(ii) Single Bench Judgement of the Patna High Court passed in the case of Md. Manzoor Alam v. State of Bihar and Ors. vide C.W.J.C. No. 12005 of 2006.

(iii) Single Bench Judgement of the Patna High Court passed in the case of Kamal Chandra Sah v. State of Bihar and Ors. reported in 2006(3) PLJR 468.

(iv) Single Bench Judgement of this Court in the case of Md. Suhail Alam v. State of Jharkhand and Ors. vide W.P.(S) No. 2760 of 2006.

(v) Division Bench Judgement of this Court in the case of Diwakar Giri v. State of Jharkhand, 2007(1) J.C.R. 412.

4. In the counter affidavit filed by the respondents, the stand taken by them is that the dismissal of the petitioners was made by the order of the Director General of Police, Bihar, Patna vide Memo No. 1046 dated 07.03.2002 on the ground that their appointment was illegal. On receipt of a communication issued by the Office of Director General of Police, Bihar, Patna of the order of dismissal of the appointees on the ground that their appointment was not made by the Selection Committee, the Director General of Police, Jharkhand, Ranchi vide his Office Memo No. 1593 dated 29.04.2002, issued a direction to all the Superintendents of Police within the State to take appropriate steps for dismissal of the services of the persons whose names figured in the list enclosed to the letter issued by the Office of the Director General of Police, Bihar, Patna. Pursuant to the aforesaid direction, the concerned Superintendents of Police issued show cause notices to the concerned appointees including the present petitioners calling upon them to submit their show cause replies and to defend themselves. The show cause replies submitted by the petitioners being found not satisfactory, their services were terminated in accordance with Rule 828(b) of the Bihar Police Manual and the impugned orders of dismissal from service were communicated to the petitioners respectively. It is contended that since the appointment of the petitioners was not made in accordance with the rules of procedure and not made on the recommendation of the Appointment Committee, their appointment is ab initio illegal and the petitioners cannot legitimately claim to continue in service.

Relying upon several judgements of this Court as also of the Patna High Court and that of the Supreme Court, the respondents have claimed that the termination of the petitioners' services was absolutely legal and proper. The respondents in support of their stand have relied upon the following judgements:

(i) Division Bench Judgement of this Court passed in the case of Seema Devi v. State of Jharkhand reported in 2005(2) JLJR 337.

(ii) Single Bench Judgement of this Court in the case of Ishwar Bahadur Thapa and Anr. v. State of Jharkhand and Ors. reported in 2008(2) JLJR 490.

(iii) Supreme Court Judgement in the Case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. reported in : (2006)IILLJ722SC .

5. From the counter affidavit as also the submissions made by the learned Counsel for the respondents, I find that the following statement of facts pleaded by the petitioners have not been denied:

(a) That both the petitioners were appointed by the authority of the then Director General of Police, Bihar Patna on special grounds on the basis of their demonstrating exemplary courage on occasion of crisis.

(b) That though the Bihar Police Manual under Rule 661B lays down a procedure for recruitment of constables in the police service, the rules could be and were in fact relaxed by the State Government in just and appropriate cases for rewarding such persons who had shown exemplary bravery and courage on occasion of crisis.

(c) That no departmental proceeding was initiated against either of the petitioners on any charge of misconduct or on the ground that they had obtained their appointments illegally by misrepresentation.

6. In the case of Diwakar Giri (Supra), a Division Bench of this Court while referring to the judgements of the Supreme Court in the case of Gulzar Singh v. Sub Divisional Magistrate and Anr. : AIR1999SC3803 and Basudeo Tiwary v. Sido Kanhu University and Ors. : (1999)ILLJ200SC has recorded the following observations:

The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is the requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis to fair, just and reasonable treatment.

In the light of the above observations of the Supreme Court, the Division Bench of this Court while considering a similar issue as raised by the petitioners in the instant cases, has made the following observations:

Even assuming that the appointment was not made in accordance with the rules and regulations, the authority concerned should have conducted the enquiry and should have given an opportunity to the petitioner in order to enable him to establish that the appointment was legal.

Admittedly, no such opportunity has been given to the petitioners by the authority concerned before concluding that the appointment was illegal. As pointed out by the Court in the case of Diwakar Giri (Supra), it is well settled that any action by the department against the Government Servant must be fair, just and reasonable. If the opportunity has not been given, holding that his appointment was irregular and unauthorised, it amounts to violation of natural justice.

7. In the instant case as observed above, the termination of the services of the petitioners was made only on the basis of a communication received from the Office of the Director General of Police, Bihar, Patna suggesting that the appointments of the present petitioners and several others, were not made in accordance with the Rule 661B of the Bihar Police Manual. Since neither of the petitioners continued to remain under the services of the Bihar Government, the Director General of Police, Bihar, Patna could not have exercised any authority to terminate the services of either of the petitioners who were employed under the State Government of Jharkhand.

Furthermore, even though the Government of Bihar by making the Police Manual and by providing Rule 661B therein, had directed all its officers including the Director General of Police to recruit the constables in the manner as has been provided in the said Rule, it was open to the State Government of Bihar to make a departure from that Rule in appropriate cases. The Rules were admittedly relaxed by the Government of Bihar in appropriate and deserving cases for the purpose of rewarding persons who had shown exemplary courage on occasions of crisis. Such relaxation, no doubt, could not have been made by any individual officer. It further appears that many appointments were made on special grounds during the tenure of Mr. S.K. Saxena, the then Director General of Police, Bihar. Those appointments were investigated, and the investigation revealed that some of such appointments were illegal and instructions were accordingly issued to terminate the services of such illegal appointees. However, in the instant case, the consistent claim of the petitioners, as stated by them even in their show cause replies submitted to their respective Superintendents of Police, is that their appointment to the post of constables were made on the basis of the relaxed rules and after their undergoing the physical and medical tests and on being found successful in such tests. As such, before deciding to terminate the services of the petitioners, an enquiry ought to have been conducted to find out as to whether at the relevant time, a relaxation was made by the State Government of Bihar in Rule 661B of the Bihar Police Manual in order to reward the persons who had shown exemplary courage on occasions of crisis and whether the petitioners were infact the recipients of the benefits of the relaxed Rules.

In the instant cases, before deciding to terminate the services of the petitioners, no such enquiry was conducted to find out as to whether the appointments of the petitioners were made on the basis of the relaxed rules of the State Government or merely under the assumed authority of the then Director General of Police. No opportunity was given to either of the petitioners to rebut the presumption that their appointment was made contrary to the Rules.

8. Learned Counsel for the respondents has placed reliance on the judgement of this Court in the case of Seema Devi (Supra) and in the case of Uma Devi (supra). In the facts of the present cases, neither of these judgements would apply since in both the cases, the issue raised was that of illegal appointment, such appointment being void ab initio on the ground that they were not made in accordance with the rules of procedures. In the instant case on the contrary, no enquiry at all was conducted to record a definite finding that the appointment of the petitioners was illegal on the ground that such appointment was not made in consonance with the Rule 661B of the Bihar Police Manual or under the relaxed rules thereunder. Even in Seema Devi's case, the Division Bench of this Court has held that no order of dismissal or termination of services can be passed unless having informed in writing the grounds on which it is proposed to take action and afford adequate opportunity of defending. On the other hand, the judgement of the Division Bench of this Court in the case of Diwakar Giri would squarely apply to the case of present petitioners.

9. In the light of the above discussions, I find merit in these applications. Accordingly, the same are allowed. The impugned orders Annexure-6 passed by the Superintendent of Police, Deoghar and Annexure-3 passed by the Superintendent of Police, Sahebganj are hereby quashed.