Akhilesh Nandan Saran Vs. State of Jharkhand and Ors. - Court Judgment

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2563 of 2010 ------- Akhilesh Nandan Saran, S/o Late Awdhesh Nandan Saran, H1-61, Harmu Housing Colony, P.O and P.S. Harmu, District: Ranchi, Jharkhand. ... Petitioner Versus 1.The State of Jharkhand, through its Secretary, Water Resources Department, Nepal House, P.O and P.S. Doranda, Ranchi, Jharkhand 2.The Chief Engineer, Water Resources Department, Government of Jharkhand, Jagarnathpur High School, Sector – III, P.O and P.S. Dhurwa, Ranchi, Jharkhand. 3.Joint Secretary, Department of Water Resources (Irrigation) Government of Jharkhand, Jagannathpur High School, Sector-III, P.O and P.S.-Dhurwa, Ranchi, Jharkhand. 4.Secretary, Department of Water Resources, Government of Bihar, Patna .... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Shree Krishna Pandey, Adv. For State of Jharkhand : Mr. Sunil Singh, J.C to S.C. Mines. For the State of Bihar : Mr. Ramit Satender, Advocate. ------ C.A.V. On 28.08.2015 Pronounced on 8/10/2015 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing of office order dated 13.05.2002 (Annexure

7) of the Water Resources Department, Government of Bihar, by which, the State Government took a decision for termination of the petitioner and also for quashing of office order dated 29.04.2010 (Annexure 10), by which, the petitioner was terminated from services and further for reinstatement with all consequential benefits.

2. The facts, as emanated from the writ application, in a nutshell is that the petitioner was initially appointed as an Accounts Clerk in the River Valley Project, Government of Bihar in the year 1971. Subsequently, the services of the petitioner was confirmed vide memo dated 01.07.1976 of the Additional Secretary, Government of Bihar, Department of Irrigation and 2 Energy. It has been stated that after re-organization of the State of Bihar, the petitioner was transferred and relieved to join in the Department of Water Resources and Energy, State of Jharkhand vide Office order dated 14.11.2000 and accordingly the petitioner joined as Bill Clerk vide office order dated 21.12.2000. It has further been stated that thereafter, the petitioner was relieved to join his duties in the office of Chief Engineer, Water Resources Department, Ranchi vide memo dated 08.02.2003.

3. But suddenly, vide Memo dated 09.04.2002 (Annexure 6), the Deputy Secretary of the Government, Department of Water Resources, issued a show cause notice to explain as to why the services of the petitioner should not be terminated on account of illegal appointment. It has been stated that thereafter, the Department of Water Resources and Irrigation, Government of Bihar vide Memo dated 13.05.2002 informed the petitioner that his services has been terminated with immediate effect and Deputy Secretary of the concerned Department of the State of Jharkhand vide same Memo dated 13.05.2002 was requested to confirm the order of termination of the services of the petitioner at its own level.

4. It has further been stated that the Department of Water Resources, State of Jharkhand has also taken advice on this matter and was advised that such action by the State of Bihar, particularly, the matter of termination of services of the petitioner is illegal and not binding upon the State of Jharkhand and direction was issued to make payment of the withheld salary to the petitioner, as is evident from Memo dated 28.08.2002 (Annexure 8). Thereafter, the petitioner continued to discharge his duties and vide letter dated 07.04.2010 (Annexure 9), the petitioner was directed to file pension paper as he was to retire on 30.04.2010. But to the utter surprise and 3 consternation, on the eve of superannuation i.e. on 30.4.2010 a Memo No. 1877/Ranchi dated 29.04.2010 was served upon the petitioner, whereby services of the petitioner was terminated, confirming the order of termination issued by the State of Bihar vide Memo dated 13.05.2002.

5. Being aggrieved by the impugned order of termination issued vide Memo dated 13.05.2002 and confirmed by Memo dated 29.04.2010, the petitioner approached this Court under Article 226 of the Constitution of India for redressal of his grievances.

6. Counter affidavit has been filed on behalf of respondent nos. 1 to 3 controverting the averments made in the writ application. It has been submitted in the counter affidavit that an inquiry was conducted by the Water Resources Department, Government of Bihar to examine the initial appointment of the petitioner along with other officials as due process of appointment was not followed in the appointment of the petitioner. It has further been contended that opportunity of hearing was given to the petitioner in this regard but he could not produce the document to prove his initial appointment legal and only thereafter, the Water Resources Department, Government of Bihar after examining the reply of the petitioner took a decision to terminate the petitioner from services vide Memo dated 13.5.2002. It has been stated that since at that time the petitioner was working within the territory of State of Jharkhand, the Water Resources Department, Bihar sought confirmation of the State of Jharkhand. But the Water Resources Department, Jharkhand decided to proceed afresh in the matter after obtaining records from the Water Resources Department, Bihar. However, due to negligence on the part of some officials, decision in this matter could not be taken till 2009 and for that departmental proceeding has 4 been initiated against those officials who were responsible for such delay. Thereafter, the documents were examined by higher officials and initial appointment of the petitioner was found illegal and accordingly confirmation was accorded to the order of termination issued by the Water Resources Department, Bihar vide Memo dated 29.04.2010. Hence, there is no illegality in the impugned order. Furthermore, the Hon’ble Apex Court in the case of State of Karnataka Vs. Uma Devi-03 has observed that any illegally appointee cannot be allowed to continue in government service.

7. Counter affidavit has also been filed by the respondent-State of Bihar reiterating the submissions made in the counter affidavit filed by the State of Jharkhand.

8. Heard Mr. Shree Krishna Pandey, learned counsel appearing for the petitioner and Mr. Sunil Singh, J.C to S.C. (Mines) for the respondents.

9. Referring to the supplementary affidavit dated 15.06.2011, learned counsel for the petitioner submitted that after re-organization of the State of Bihar, the Hon’ble Court has held that the employees in the Jharkhand cadre are no more in the disciplinary jurisdiction of the State of Bihar and no action could be taken against them on the recommendation of the State of Bihar, therefore, the order of termination of the petitioner dated 13.05.2002 issued by the State of Bihar and confirmed by State of Jharkhand vide memo dated 29.04.2010 are arbitrary, illegal and against the settled principles of law. Learned counsel for the petitioner further relied upon the judgment dated 24.09.2002 passed in C.W.J.C No. 6959 of 2002 with analogous cases wherein the Hon'ble Patna High Court quashed the order dated 13.05.2002 of the Government of Bihar and directed to reinstate the petitioners into services. Learned counsel for the petitioner further relying upon the rejoinder 5 to the counter affidavit submitted that against the order dated 24.09.2002 passed in C.W.J.C. 6959 of 2002, the respondents-State of Bihar preferred L.P.A. No. 670 of 2004 and analogous cases, which was dismissed confirming the order passed by the writ Court. But despite the quashing of termination order dated 13.05.2002, which attained finality, impugned order dated 29.04.2010 has been passed basing upon order dated 13.05.2002, which is bad in law.

10. Learned counsel for the respondents has assiduously submitted that the initial appointment of the petitioner has been made in violation of Rules and in this regard decision was rendered by Hon'ble Patna High Court in L.P.A. No. 1511 of 1995 observing therein that any appointment made illegally is bad and invalid. It has further been contended by learned counsel for the respondents that as per the decision of the Hon'ble Apex Court in the Case of Uma Devi-03, illegally appointed cannot be allowed to continue in government service. Thus, the impugned order vide Annexure 10 dated 29.04.2010 is legally justified.

11. Having heard learned counsel for the parties at length and on perusal of the documents on record, it appears that the impugned order dated 13.05.2002 (Annexure

7) and 29.04.2010 (Annexure

10) are not legally sustainable and are liable to be quashed for the following facts, reasons and judicial pronouncement: (i).Initially the petitioner was appointed in the year 1971 and continued till 2010 and after rendering almost 39 years of services, impugned order of termination dated 29.04.2010 (Annexure

10) was passed and it appears that even the order of termination has been passed without following the 6 principles of natural justice and no fresh proceeding has been initiated by the State of Jharkhand before infliction of major punishment. (ii).On perusal of Annexure 8, which is an order passed by Secretary, Water Resources Department, Government of Jharkhand, it appears that in unequivocal terms, it has been stated that after bifurcation of the State of Bihar, as per Section 72 and 74 of the Bihar Re-organization Act, 2000, the State of Jharkhand being the appointing authority is competent to take disciplinary action against the employees who were posted in the State of Jharkhand and any disciplinary/punitive order passed by the State of Bihar is not binding upon the State of Jharkhand. Hence, the impugned order dated 13.05.2002 was not confirmed by the State of Jharkhand. However, decision was taken to initiate fresh proceeding, which culminated into passing of order dated 29.04.2010. (iii).On perusal of impugned order dated 29.04.2010, it clearly reveals that the impugned order of termination has been passed basing on the impugned order dated 13.05.2002 passed by the State of Bihar and order passed in L.P.A. No. 1511 of 1995. (iv).So far as order dated 27.06.1996 passed in L.P.A. No. 1511 of 1995 is concerned, the Hon'ble Division Bench, on the plea taken by the writ petitioners-appellants in that cases that they alone were picked up for removal though there were other people working in the department who were appointed in a similar way, the Division Bench observed that the department should look into that aspect of the matter and take suitable action against the people similarly situated as the appellants. Pursuant thereto steps were taken by the department and after six years the impugned order dated 13.05.2002 was passed whereby the petitioner was 7 terminated from services on the basis of his initial appointment being illegal and the impugned order of termination dated 13.05.2002 was sent for its approval to the State of Jharkhand, but the State of Jharkhand took decision in the year 2010, after eight years, to terminate the petitioner from service vide order dated 29.04.2010, that too just one day before his superannuation. (v).It would further be apposite to mention here that the matter again came before the Hon'ble Patna High Court in C.W.J.C. No. 6959 of 2002 and batch cases for quashing order dated 13.05.2002, by which petitioners were terminated from services, which were allowed vide order dated 24.09.2002. Being aggrieved thereof, the State of Bihar preferred appeal, being L.P.A. No. 670 of 2004 and batch cases, which was dismissed vide order dated 03.03.2006 confirming the order passed by the Writ Court. For better appreciation, relevant paragraph of the judgment is quoted herein below: “No exception can be taken to the proposition that an appointment made illegally is bad and invalid and in the facts and circumstances of the case the observation made by the division bench in L.P.A. No. 1511 of 1995 was wholly appropriate, proper and correct but the difference in the cases lies in the delay caused by the concerned authorities in taking action on the basis of that observation. Under those circumstances the writ court exercised its discretion in favour of the terminated employees on the ground that they had already served for more than a quarter of a century and were on the verge of retirement. We cannot hold that the view taken by the writ court was so unwarranted or bad as to warrant an interference in an internal court appeal.” In the instant case, it appears that the petitioner has already served about 39 years of services and just one day prior to retirement, he was terminated from services vide order dated 29.04.2010. Applying the 8 same principles of law, the order of termination dated 13.05.2002, which was confirmed vide order dated 29.04.2010 is liable to quashed. (vi).On perusal of Annexure 9, it further appears that vide letter dated 07.04.2010, the petitioner was intimated that he is going to superannuate on 30.04.2010, as such he was directed to submit necessary documents for pension etc., but, just one day before his superannuation, order of termination dated 29.04.2010 was issued, which cannot be countenanced in service jurisprudence.

12. On cumulative effects of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 13.05.2002 (Annexure

7) and 29.04.2010 (Annexure

10) are hereby quashed and the respondents are directed to pay all consequential service benefits to the petitioner. Accordingly, this writ petition is allowed. (Pramath Patnaik, J.) Alankar/-