Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14924 of 2012 ====================================================== Noor Alam S/O Md. Ishar R/O P.O. Bhagwanpur Chatti & P.S. Sadar, District Muzaffarpur. .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Human Resources Development Department, Government Of Bihar, New Secretariat, Patna. 2. Secretary (Secondary Education), Human Resources Development Department, Government Of Bihar, New Secretariat, Patna. 3. Director (Secondary Education), Human Resources Development, Government Of Bihar, New Secretariat, Patna. 4. Regional Deputy Director Of Education, Tirhut Division, Muzaffarpur. 5. District Education Officer, West Champaran. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Jai Kishor Poddar, Advocate For the Respondent/s : Mr. Amar Nath Deo SC-26 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 19-02-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “i. For quashing of office order bearing memo no. 1318 dated 24.8.2011 issued under signature of respondent no.4, RDDE, Muzaffarpur by which representation of the petitioner for his reinstatement in service in the facts that the similarly situated persons have been reinstated, has been rejected on the ground, that in favour of the petitioner there is no order of the Hon‟ble Court. ii. For a direction on the respondent RDDE, Tirhut Division, Muzaffarpur to reinstate the petitioner by recalling order of termination contained in memo no. 221 dated 10.2.1999 as has been done by him in case of other similarly situated persons and also in the light of Clause
Legal Reasoning
Patna High Court CWJC No.14924 of 2012 (4) dt.19-02-2013 2 4C(1) of State Litigation Policy and to pay the petitioner all consequential benefits.”
Legal Reasoning
Mr. Shivendra Kishore, learned counsel for the petitioner, in support of the aforementioned prayer has submitted that when eight persons including the petitioner were terminated from service by a common order of termination dated 10.2.1999 and out of them four of them have already been reinstated in service under the orders of this Court the petitioner would also be entitled for similar treatment and to that extent the impugned order passed by the authority on 24.8.2011 is apparently incorrect and in fact arbitrary. When this case was heard last on 5.2.2013 this Court had found that the order of termination had referred to voluntary abandonment of service as a reason for cancellation of appointment apart from those appointment being also described as illegal. The petitioner under such circumstances by an order dated 5.2.2013 was directed to file a specific affidavit as to whether he had ever joined the post of Driver after his appointment in the year 1995 and if so, whether he was also paid salary. In the affidavit, which has been filed today, the petitioner has made a categorical statement that he had joined service on 26.6.1995 and in fact had remained present on duty as a Jeep Driver till February, 1997 but Patna High Court CWJC No.14924 of 2012 (4) dt.19-02-2013 3 his payment of salary was made only upto December, 1996, whereafter on account of joining of the new District Education Officer not only the petitioner but others were also prohibited from putting their signature on the Attendance Register. The said stand taken by the petitioner in fact also has been virtually admitted in the counter affidavit filed by the respondents wherein it has also been stated that there is a vacant sanctioned post of Jeep Driver still available. In the counter affidavit there is also no denial with regard to initial selection process undergone at the time of appointment of the petitioner on the post of Jeep Driver and to that extent the following averments made in paragraphs no.
Decision
7 and 8 of the writ petition reading as follows: “7. That name of the petitioner was recommended alongwith others, namely, Ravindra Kumar Tiwary, Anil Jha, Dilip Kumar, Shankar Rajak, Ramparwesh Singh, Munna Choudhary, Sanjeev Kumar Pandey, Ashok Kumar Mishra and Jai Prakash etc., the candidates for Class III/IV post of Clerk/ Peon were interviewed, whereas petitioner gave driving test and thereafter the Divisional Establishment Committee decided to recommend the name of the petitioner for appointment on the post of jeep driver on the then pay scale of Rs.950- 1400. 8. That on the basis of recommendation of the Divisional Establishment Committee, petitioner was appointed on Patna High Court CWJC No.14924 of 2012 (4) dt.19-02-2013 4 post of jeep driver and was posted in the office of District Education Officer, West Champaran by RDDE, Tirhut Division, Muzaffarpur vide office order bearing memo no. 8 dated 26.6.1995.” by itself would be an answer that the initial appointment of the petitioner did not suffer from any infirmity. The case of the petitioner, therefore, becomes comparable with the case of Dilip Kumar, who too was appointed in the same transaction alongwith the petitioner and whose services were reinstated under the order of this Court and the order passed by the learned Single Judge in favour of Dilip Kumar was also affirmed by the Division Bench by an order dated 27.4.2010 in L.P.A.No. 772/2010. As a matter of fact counsel for the State also does not dispute the position that the case of the petitioner is similar to the case of Dilip Kumar (supra). Considering all these aspects this Court would find no justification in the approach of the Regional Deputy Director of Education, Muzaffarpur while passing the impugned order that reinstatement of the petitioner‟s service was not possible because in his case there was no order of the High Court. In any event the said office order dated 24.8.2011 having failed to distinguish the case of the petitioner with that of Shankar Rajak, Anil Jha and Ravindra Kumar Tiwary even otherwise cannot be sustained, Patna High Court CWJC No.14924 of 2012 (4) dt.19-02-2013 5 especially when all of them were appointed in the same transaction and in fact removal from service by the same impugned order. The plea of the petitioner abandoning the service in the month of February/ March, 1997 can also not stand in his way, inasmuch as from reading of Annexure „C‟ of the supplementary counter affidavit that even Jai Prakash and Sanjeev Kumar Pandey were also reportedly said to have abondoned their service voluntarily alongwith the petitioner but when Jai Prakash and Sanjeev Kumar Pandey have also been taken back in service no different treatment can be given to the petitioner even on this ground. Thus, for all the reasons indicated above, this Court would find that the impugned order passed by the RDDE, Muzaffarpur dated 24.8.2011, as contained in Annexure 1, cannot be sustained either on fact or in law and the same is hereby quashed. This Court would direct for reinstatement of the petitioner back in service but it is made clear that the petitioner in keeping with his conduct of remaining silent for a period over fourteen years i.e. March 1997 to 2011 before he had filed his representation before R.D.D.E. in 2011, shall not be entitled for any other benefit of past service on account of such reinstatement Patna High Court CWJC No.14924 of 2012 (4) dt.19-02-2013 6 except that his past service would qualify for the pensionary benefits. In other words, the petitioner cannot claim any benefit including benefit of ACP or any other promotional benefit on the ground that his services on account of reinstatement would be deemed to be continued since 1995 and in fact the petitioner would also not get any salary for the interregnum period. The petitioner therefore will be entitled for payment of salary only from the date he will report for duty before the District Education Officer, West Champaran along with a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J) surendra/-