SHIV KANT YADAV v. SECRETARY, WATER RESOURCES

====================================================== Appearance : (In CWJC No.8760 of 2003) & (In CWJC No.1547 of 2004) For the Petitioner/s : Mr. Ravindra Nath Dubey Mr. Sanjay Kumar Singh For the Respondent/s : Mr. (Gp9) Mr. (Ga10) For the Petitioner/s : Mr. Ravindra Nath Dubey Mr. Sanjay Kumar Singh For the Respondent/s : Mr. (Sc3) ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 5 20-12-2013 Both the writ petitions are taken up together and are being disposed of by this common order. Sole petitioner of C.W.J.C.No. 8760 of 2003 has challenged the order contained in Memo no. 2037 dated

21.12.2002 issued by the Director, Land Acquisition and Patna High Court CWJC No.8760 of 2003 (5) dt.20-12-2013 Rehabilitation (respondent no. 3), whereby his service has been terminated. The petitioner consequently seeks mandamus directing the respondents to allow him to resume his duty and pay on the post of IVth Grade employee. Petitioners of C.W.J.C.No. 1547 of 2004 who are three in number have prayed for quashing order contained in Memo no. 636 dated 22.3.2001, memo no. 2062 dated 26.12.2002 and Memo no. 655 dated 22.3.2001 issued under the signature of the Director, Land Acquisition and Rehabilitation, Water Resources Department (respondent no.3), wherein services of the petitioners have been terminated on the ground of being irregular. Petitioners have challenged the impugned order of termination on the ground that they have been passed in violation of Principle of Natural justice as no show cause was issued prior to passing of the same. Petitioners next contend that the respondents overlooked the fact that their appointments were approved by competent authority against the sanctioned vacancies after following selection process. The petitioners state that even at maximum their appointment would be irregular and not illegal and as such they would be saved by pronouncement of exceptions provided in case of Secretary, State of Karnataka Vs. Uma Devi (3) and others (2006) 4 SCC 1 as petitioners have continued in Patna High Court CWJC No.8760 of 2003 (5) dt.20-12-2013 service for about 12 to 13 years. Petitioners further submitted that this Court as well as the Jharkhand High Court has quashed the termination order in more or less similar circumstances. The facts of both the cases in short are as follows:- C.W.J.C.No. 8760/. Petitioner Shiv Kant Yadav was appointed against the vacant post of Janjeer Vahak on temporary basis by the Land Acquisition Officer, Siwan vide Memo no. 648 dated 18.9.1987, subject to the condition that his service must be confirmed by the Director, Land Acquisition. In fact, the Director, Land Acquisition extended the service of the petitioner by different orders including order contained in letter no. 1936 dated

13.5.1988 by which service has been extended till further orders along with other employees. The petitioner was regularly treated as cadre of respective service of Class IV post. He was also frequently transferred by order of the Director, Land Acquisition on the recommendation of the Establishment Committee. He was appointed by Special Land Acquisition Officer, Siwan in the year

1988. C.W.J.C.No. 1547/2004 Petitioner no.1 was appointed on 19.5.1988, petitioner no. 2 was appointed on 7.3.1988 and petitioner no.3 was appointed on 16.6.1988 on the post of chainman in different Land Acquisition office. After their Patna High Court CWJC No.8760 of 2003 (5) dt.20-12-2013 appointment, the appointment letters were sent to the Director, Land Acquisition and Rehabilitation for approval but the Director retrenched the petitioners along with others. Thereafter petitioners applied for reappointment before the Director. The Director considering the petitioners as retrenched employees and on recommendation of the Establishment Committee, appointed petitioner no.1 by order dated 31.3.1989, petitioner no.2 on

7.4.1989 and petitioner no.3 was appointed on 1.6.1989 against sanctioned post and since then they are working in the department continuously. Thereafter respondents treated the petitioners in the cadre of their respective service and on and off were transferred from place to another on the basis of recommendation of Establishment Committee. Petitioners have been allowed to draw their annual increment for the last several years and service book of the petitioners was opened by the concerned authorities and provident fund deduction are being made and deposited in their provident fund account. Petitioners submit that in the year 1998 a notice was issued on 29.9.1998 demanding the paper relating to their appointments to which they submitted their reply. However, it is the case of the petitioners that without asking any show cause, the termination order dated 22.3.2001 with respect to petitioner no.1, order dated 26.12.2002 with respect to petitioner no.2 and Patna High Court CWJC No.8760 of 2003 (5) dt.20-12-2013 order dated 24.3.2001 with respect to petitioner no.3 were passed. They state that the Commissioner, Irrigation Sri N.Nagmani, IAS had delegated power for appointment to Class III and IV posts to Special Land Acquisition Officer in exigency of the administration. However, in any view of the matter, their appointments were confirmed by the Director, who was competent authority. Generally it was the Director, Land Acquisition who was competent to make appointment to Class IV post. The case of petitioners of C.W.J.C.No. 1547/2004 is that they were appointed by the Director, Land Acquisition, whereas the case of petitioner of C.W.J.C.No. 8760/2003 is that he was appointed by the Special land Acquisition Officer. His appointment was approved by the Director, Land Acquisition, who was the competent authority. Petitioners have challenged the impugned order on the ground that though they were appointed by the competent authority against the sanctioned post after due publication of notice on the Notice Board and they continued in service for more than 13 to 14 years still they have been terminated in violation of Principle of natural justice. Petitioners further state that even according to the respondents their appointment at best was irregular and not illegal. They state that one Sunil Kumar Singh, similarly situated, moved Patna High Court CWJC No.8760 of 2003 (5) dt.20-12-2013 this Court against order of termination in C.W.J.C.No. 6586 of 1998 which was quashed vide order dated 11.1.2000. Furthermore, their cases are also identical to that of one Akhilesh Kumar Singh (C.W.J.C.No. 14268/2001) heard analogous with other writ petitions and disposed of on 10.1.2002 in their favour of petitioners. Furthermore, one Shiv Chandra Kumar whose service was terminated moved this Court in C.W.J.C.No. 8619 of 1998 which was allowed in petitioner’s favour vide order dated

12.10.2001 (Annexure 15). Counsel for the State submits that the petitioners were appointed without due publication of advertisement. On the other hand counsel for the petitioners submits that they were appointed by the competent authority pursuant to notice issued in the news paper against the sanctioned vacancy. The petitioners have further placed reliance on the decision in case of Pradeep Narayan Jha Vs. State and others (C.W.J.C.No. 9042/2011) which was disposed of on 31.10.2013. The petitioners submit that as such their appointments would be irregular and would be covered under exception provided in different paragraphs of the decision in case of State of Karnataka Vs. Uma Devi, particularly paragraph 53. I find that the petitioners of C.W.J.C.No. 1547/2004 were Patna High Court CWJC No.8760 of 2003 (5) dt.20-12-2013 appointed by the competent authority i.e. the Director, Land Acquisition against the sanctioned vacant post pursuant to notice on the notice board. The service of petitioner of C.W.J.C.No. 8760 of 2003 was appointed by the Special Land Acquisition officer against the sanctioned vacant post but was subsequently approved by the Director, Land Acquisition. He too had applied pursuant to the advertisement on the Notice board. All the petitioners put in more than 13 to 14 years of service. I further find that no opportunity of hearing was provided to them before passing order of termination. In the circumstances the matter is remitted to the Director, Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar (respondent no.3) for fresh consideration of the case of these petitioners within a period of three months from the date of receipt of this order without being prejudiced by earlier impugned orders of termination in light of different orders of this Court. Shashi./- (Samarendra Pratap Singh, J)