Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.7526 OF 2012 =================================================== VINIT PRAKASH SON OF LATE VIJAY PRAKASH SINHA RESIDENT OF MOHALLA F-18, P.C. COLONY, P.S. KANKARBAGH, DIST. PATNA AT PRESENT WORKING AS ASSTT. ENGINEER, RURAL DEVELOPMENT DEPARTMENT, MUNGER, GOVT. OF BIHAR, PATNA .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY 2.THE CHIEF ENGINEER, DEPARTMENT OF WATER RESOURCES, GOVT. OF BIHAR, PATNA 3.THE SUPERINTENDEING ENGINEER, PUNPUN BARH SECURITY DIVISION, ANISHABAD, PATNA 4.THE EXECUTIVE ENGINEER, PUNPUN FLOOD PROTECTION DIVISION, PATNA 5.THE EXECUTIVE ENGINEER, JALPATH DIVISION, EKANGARSARA 6.THE PRINCIPAL SECRETARY, RURAL DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA .... .... RESPONDENT/S =================================================== Appearance : For the Petitioner/s:Mr. Utsav Kumar For the Respondent/s:Mr. Rajiv Kumar Singh Gp2 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3/ 02-01-2013 Heard counsel for the parties. In this writ application, the petitioner has prayed for the following relief:- is this "That an application for issuance of writ in the nature of certiorari for quashing of the order contained in Memo No. 292 dated 27.1.2011 issued under the signature of Respondent no. 2 whereby and whereunder the petitioner has been terminated from class-III post of clerk from the Department of Water Resources, Govt. of Bihar, Patna. The further prays that the respondents may further be directed to reinstate petitioner
Legal Reasoning
Patna High Court CWJC No.7526 of 2012 (3) dt.02-01-2013 2 the petitioner on class III post of clerk in the Department of Water Resources, Govt. of Bihar, Patna with all consequential and monetary benefits of which the petitioner may be found entitled in the eyes of law. And further the respondent authorities may further be directed to pay the arrears of salary to the petitioner due since April 2007 as also the current salary on month to month basis as per admissible Government Rules. And further the respondents may further be directed to the and petitioner to work as an Asstt. Engineer in the Department of Rural Development, Govt. of Bihar, Patna for contractual period only, from the Dept. of Water Resources. consider releave orders contained And during the pendency of the instant writ application, the impugned in Annexure-1 of this writ application may remain stayed. for And other consequential reliefs of which the petitioner may be found entitled in the eyes of law. any
Legal Reasoning
Mr. Kishore Kumar Thakur, learned counsel appearing on behalf of the petitioner has submitted that once the petitioner was appointed on compassionate ground on the post of Clerk and was allowed to continue for a considerable length of period, he would definitely acquire the right to count his previous service for the purpose of its being tagged with his later fresh appointment on the post of Assistant Engineer because both the employment is under the State Patna High Court CWJC No.7526 of 2012 (3) dt.02-01-2013 3 Government. He has explained that though the petitioner was initially appointed as clerk on compassionate ground but then as he was also a graduate in engineering, his subsequent appointment on the post of Assistant Engineer in District Rural Development Authority under Rural Development Department based on his qualification and that too after facing open competition would definitely qualify him for counting his previous service which he had rendered as a clerk in Water Resources Department Basing on this main limb of his submission, he has also assailed the impugned order of dismissal of service of the petitioner pursuant to a departmental proceeding. Learned counsel for the State on the other hand has submitted that the petitioner cannot claim any right on the post that he was holding by way of compassionate appointment, inasmuch as, the same was itself a temporary appointment on which the petitioner was yet to be confirmed. He has also submitted that the petitioner had no lien on such post and therefore, if he had made the application for the post of engineer, that by itself would not give him any right to continue also against the Patna High Court CWJC No.7526 of 2012 (3) dt.02-01-2013 4 post of Clerk and as his previous services cannot be tagged with the later appointment for any purpose whatsoever. He has also relied on the findings of the inquiry officer of the disciplinary authority to justify the order of punishment of dismissal of the petitioner. In the considered opinion of this Court, there cannot be two opinion that the petitioner’s appointment on compassionate ground on the post of clerk was by itself a grace, inasmuch as, the petitioner came to be appointed without facing any selection. His such service, therefore, could have at best given him the right to continue on the post he was appointed after fulfilling the requisite conditions. If before being confirmed on such post the petitioner had voluntarily opted to join on the post of engineer he cannot even remotely claim any benefit of previous service inasmuch as he had no lien on the post of Clerk. The petitioner, therefore, had to either remain on lower post of clerk or take up the assignment on the higher post of engineer by leaving the lower post. Admittedly, the petitioner still being not confirmed on the post of clerk, he cannot claim even lien on the post of clerk for his returning Patna High Court CWJC No.7526 of 2012 (3) dt.02-01-2013 5 back to the post in the event of his being discontinued on the post of engineer for any reason whatsoever. Once this aspect becomes clear, this Court would not find any error in the impugned order passed by the authorities and that too after conducting the departmental proceeding. There is, however, some merit in the submission of learned counsel for the petitioner that though being a qualified engineer the petitioner had to opt for the post of clerk on account of premature death of his father for supporting his family and therefore, if ultimately the petitioner has been able to get his due recognition in getting a job as per his qualification, that act of petitioner should not become stigma for him. He clarifies that the impugned order of dismissal of service of the petitioner is capable of being read as a disqualification for the petitioner to continue in government service and therefore, he has submitted that this Court even while upholding the impugned order may clarify that the impugned order of punishment will not prejudice him in continuing in Government service on the post of engineer or any other post on which he may be Patna High Court CWJC No.7526 of 2012 (3) dt.02-01-2013 6 ultimately appointed as per his own merit. Learned counsel for the State very fairly submits that the Water Resources Department was concerned about the claim of the petitioner as put forward by him with regard to continuity of service on the post of clerk and since that could not have been done as it was factually incorrect and legally impermissible, the Government had no option but to initiate departmental proceeding for his removal from the post of clerk. The Government, however, had no intention to also block his career on the post of engineer and in fact the petitioner is still continuing on the post of engineer despite passing of the impugned order. Considering the aforementioned submissions, this Court would direct the authorities to allow the petitioner to continue on the post of engineer as per the terms of his appointment without being prejudiced in any manner by the impugned order of dismissal of service which came to be passed only because the petitioner had to give up his appointment on the post of clerk obtained by him through compassion in order to secure a better career on the post of engineer for which he was qualified even on Patna High Court CWJC No.7526 of 2012 (3) dt.02-01-2013 7 the date he came to be appointed as a clerk. With the aforementioned observations and
Decision
direction, this application is disposed of. (Mihir Kumar Jha, J) Ranjan