The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 125 of 2023 (Letters Patent Appellate Jurisdiction) 1. The State of Jharkhand 2. The Secretary cum Commissioner, Commercial Taxation Department, Government of Jharkhand, having its Office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi 3. The Joint Commissioner, Commercial Taxation, Hazaribagh, P.O. & P.S. & District Hazaribagh 4. The Deputy Commissioner, Hazaribagh, P.O., P.S. & District Hazaribagh .... Appellants Versus Awadhesh Singh aged about 62 years, son of Late Shivjee Singh, resident of permanent resident of Mana Tand, Near Taneja House, Gol Building Road, Dhanbad, P.O. Purana Bazar, P.S. Dhansar, District Dhanbad, at present residing at the Office of Deputy Commissioner, Commercial Taxation, Hazaribagh, P.O., P.S. & District Hazaribagh --------------- CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ... Respondent For the Appellants For the Respondent : Mr. Sharad Kaushal, AC to AAG-III : None --------------- 31st January 2024 Per, Shree Chandrashekhar, A.C.J. I.A. No. 5202 of 2023 This interlocutory application has been filed under section 5 of the Limitation Act seeking condonation of delay of 308 days in filing the present Letters Patent Appeal. 2. the delay of 308 days in filing this appeal is condoned. 3. In view of the statements made in this interlocutory application, I.A. No. 5202 of 2023 is, accordingly, allowed. L.P.A. No. 125 of 2023 4. dated 26th April 2022 passed in WP(S) No. 5055 of 2021. The State of Jharkhand is aggrieved by the writ Court’s order
Decision
5. By this order, the writ Court issued a direction to the respondent-authority to grant 1st and 2nd ACP benefits to the writ petitioner after regularizing his services. 2 LPA No. 125 of 2023 6. The writ petitioner who is the respondent in the present Letters Patent Appeal served in the office of the Joint Commissioner, Department of Commercial Taxation at Dhanbad for about 39 years and after his superannuation all pensionary benefits were given to him. Notwithstanding that, the respondent-authority has rejected his 7. representation for regularizing his services so as to seek 1st and 2nd ACP benefits. 8. The writ Court referred to the orders passed by this Court in WP(S) No.3025 of 2019, WP(S) No.4631 of 2017, LPA No.171 of 2021 and Special Leave to Appeal (Civil) No. 5742 of 2022 and formed an opinion that the respondent-authority wrongly rejected the representation for regularization. The writ Court has made the following consideration having regard to the orders passed by this Court, as under: “9. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record, it appears that the case of the petitioner needs consideration. Admittedly, the petitioner was working since 1980 and upon attaining the age of superannuation, he retired from the service in the month of December, 2019. Thereafter, he has received all his post retiral benefits and is getting his pension regularly. The contention of learned counsel for the respondent-State is that since the petitioner was not working on sanctioned and vacant post, he is not entitled for regularization and also for grant of the benefits of 1st and 2nd ACP is not acceptable to this Court inasmuch as the said issue has already been considered by this Court in W.P.(S). No. 4631 of 2017 (Surendra Choudhary Vs. State of Jharkhand & Ors.) in which after hearing the parties, this Court vide its order dated 23.02.2021 allowed the said writ petition. Thereafter, State of Jharkhand preferred LPA No. 171 of 2021 against the order dated 23.02.2021, passed in W.P.(S). No. 4631 of 2017 and the same has been dismissed by the Division Bench of this Court vide order dated 18.10.2021. The relevant paragraphs of the order dated 18.10.2021, passed in LPA No. 171 of 2021 is quoted herein below: “The State authority even after finding recorded by the learned Single Judge and direction made thereon, rejected the claim of the petitioner as if the State authority is sitting as an appellate forum upon the order passed by the writ Court under Article 226 of the Constitution of India. If the State was at all aggrieved by the order passed by the learned Single Judge, he had remedy of appeal, but instead of preferring any appeal, it has taken a contrary view treating it to be appellate forum. This Court on the basis of factual aspect of the matter is of the view that when the conclusive finding was recorded by the learned Single Judge, the State cannot be allowed to agitate the issue that the post having not been sanctioned. So far the argument of the State that process of appointment having not been followed according to our considered view, the same is also having no force as the fact about issuance of advertisement participation of the writ petitioner in skill as well as interview has not been disputed by the State in the counter affidavit filed before the writ Court, only the statement 3 LPA No. 125 of 2023 pertaining to issuance of advertisement has been replied by making statement that the same is matter of records so needs no comment which clearly goes to suggest that the fact about issuance of advertisement has not been denied by the State-respondent, therefore, there is no question of no-nobservance of principles laid down under Article 14 and 16 of the Constitution of India. We, on the basis of entirety of facts and circumstances of the case travelled towards the order passed by the learned Single Judge has found therefrom that the learned Single Judge has considered the aforesaid aspect of the matter more particularly finding recorded in W.P. (S) No. 1437 of 2013 as also the long tenure of the writ petitioner, which was allowed by the State to serve and to allow the writ petitioner to retire on attaining the age of superannuation, and therefore, the learned Single Judge quashed impugned order dated 26.04.2017 whereby claim of the petitioner for confirmation of service and grant of ACP/MACP was denied, are of the considered view that the order passed by the learned Single Judge suffers from no infirmity.” 10. Thereafter, the orders of this Court has also been tested by respondent- State of Jharkhand before the Hon’ble Apex Court in Special Leave to Appeal (C). No. 5742 of 2022 and Hon’ble Apex Court vide its order dated 08.04.2022 dismissed the appeal preferred by the State of Jharkhand. 11. In view of the observations of learned Single Judge and that of the Division Bench, affirmed upto the Hon’ble Apex Court, the enquiry report dated 11.02.2016, so far it relates to the present petitioner is concerned, is not tenable in the eyes of law and the same is hereby quashed and set aside. As result of quashment of the enquiry report dated 11.02.2016, I hereby direct the respondents to consider the case of the petitioner for regularization of his services and for grant of the benefits of 1st and 2nd ACP. 12. Let the entire exercise be completed within a period of six weeks from the date of receipt/ production of a copy of this order and if there is no other legal impediments, the benefits, as prayed for, shall be extended to the present petitioner within a further period of three weeks.” 9. inquiry report dated 11th February 2016 to submit that the respondent was Mr. Sharad Kaushal, the learned State counsel referred to the not appointed against a sanctioned vacant post. The learned State counsel has endeavored to distinguish W.P.(S). No. 4631 of 2017 titled “Surendra Choudhary Vs. State of Jharkhand & Ors.” on the ground that in case of “Surendra Choudhary” appointment of clerks in the Department of Commercial Taxation. there was an advertisement issued for the 10. Briefly stated, the respondent was appointed as clerk on 8th March 1980 and he served in the office of Joint Commissioner till he superannuated from service on 31st December 2019. During this period, he passed the departmental examination but was not given the benefits under the ACP scheme. Constrained, he approached this Court in WP(S) No.4302 of 2011 which was disposed of with a direction to the Joint Commissioner at Hazaribagh in the Department of Commercial Taxation to look into his grievances. However, the respondent’s claim for regularization was declined 4 LPA No. 125 of 2023 by an order dated 22nd December 2012. This order was challenged by him in WP(S) No.5237 of 2013 which was again disposed of with a liberty to him to challenge the adverse findings recorded in the report dated 11th February 2016. The respondent therefore filed WP(S) No.5055 of 2021 which, as noticed above, has been disposed of with the directions as contained in paragraph nos.11 and 12 of the order dated 26th April 2022. 11. Before the writ Court, the State of Jharkhand set up a case that the respondent was irregularly appointed. The learned State counsel submits that large number of irregular/illegal appointments were made in the Department of Commercial Taxation and the competent authority has therefore issued a direction for verification of the records of all such employees and a report was submitted on 11th February 2016. 12. In the report of the Committee, it is mentioned that while appointing the respondent on the post of clerk the reservation policy was not followed and he was not eligible for regularization in terms of notification no. 1348 dated 13th February 2015. As it would appear from a glance at the orders passed by this Court in “Surendra Choudhary”, the State of Jharkhand has failed to substantiate a similar objection before the writ Court, the Letters Patent Court and even before the Hon’ble Supreme Court. 13. Now the respondent who shall be affected by a decision of this Court would have a legitimate expectation that the decision of this Court in “Surendra Choudhary” shall be followed in subsequent decisions, except where a clear distinction can be drawn. The matter pertains to judicial discipline and propriety inasmuch as the decision of the Court shall bind other Co-ordinate Benches of co-equal strength. This is also necessary to maintain uniformity and certainty in the legal system so that the litigants may arrange their affairs accordingly. In our opinion, the writ Court was bound by the decision in “Surendra Choudhary” and has rightly issued direction to the authority of the State of Jharkhand for regularizing the services of the respondent. Moreover, the State of Jharkhand has paid pensionary benefits to the respondent and while so it can be safely inferred that the State of Jharkhand has accepted the position that the employment of the respondent was substantive and permanent. Rule 58 of the Jharkhand Pension Rules, 2000 provides that the service of a government servant shall 5 LPA No. 125 of 2023 not qualify for pension unless it confirms to the three conditions viz (a) the service was under the government (b) the employment was substantive and permanent and (c) the service was paid by the government. These conditions are clearly fulfilled in the case of the respondent and, therefore, there was no justification for the State of Jharkhand to decline the representation of the respondent for 1st and 2nd ACP benefits. 14. present Letters Patent Appeal. For the foregoing reasons, we are not inclined to entertain the 15. In the memorandum of the present appeal, the State of Jharkhand has raised the boggy of opening of floodgates but then this cannot be a ground for the Court not to pass an order wherever the situation demands (refer, “D.G.M. (HR) P.G. Corpn. of India Ltd. v. T. Venkat Reddy” (2007) 4 SCC 710). Secondly, the State of Jharkhand seems to have forgotten its own litigation policy under which it has taken a pledge not to multiply litigations in the Court. The history of litigations in this case indicates that the respondent after serving 39 years under the Department of Commercial Taxation was compelled to approach this Court repeatedly; four times. In the present case, the State of Jharkhand was expected to accept the position as regards regularization of the employees in the Department of Commercial Taxation after the dismissal of the Special Leave Petition vide order dated 8th April 2022. In our opinion, the State of Jharkhand has committed a clear breach of its own avowed pledge in the litigation policy. 16. The practice of frivolous and unjust litigations by the State Government and statutory authorities was deprecated by the Hon’ble Supreme Court in “Urban Improvement Trust Vs. Mohan Lal” (2010) 1 SCC 512. The Hon’ble Supreme Court has expressed its anguish observing that frivolous, vexatious, technical objections taken by the State Governments and statutory authorities are serious obstructions to the path of justice. In yet another case, in “Madras Port Trust Vs. Hymanshu International (1979) 4 SCC 176 the Hon’ble Supreme Court observed as under:- “2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality 6 LPA No. 125 of 2023 and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (II of 1905).” 17. Accordingly, L.P.A. No.125 of 2023 is dismissed with a cost of Rs. One Lac imposed upon the State of Jharkhand which shall be deposited with St. Michael’s Netraheen (Blind) Middle School, Ranchi for the welfare of the children. 18. I.A. No.5203 of 2023 also stands disposed of. (Shree Chandrashekhar, A.C.J.) (Anubha Rawat Choudhary, J.) R.K.