The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 7016 of 2023 1. Sanjeev Kumar Pandey, Aged about 37 years, Son of Shaligram Pandey, Resident of Village & P.O: Baralota, P.S. Medininagar, District- Palamau, Jharkhand 2. Bikash Kumar, Aged about- 32 years, Son of: Law Kumar Tiwari, Resident of Village Jamundih, P.O: Fulang, P.S. Lesliganj, District- Palamau, Jharkhand. 3. Vijay Kumar Paswan, Aged about- 39 years, Son of Lalji Ram, Resident of Village & P.O. & P.S: Pipra, District- Palamau, Jharkhand. 4. Mukesh Prasad, Aged about 34 years, Son of: Birendra Prasad Gupta, Resident of Village: Khatin, P.O. & P.S: Chhatarpur, District- Palamau, Jharkhand. 5. Manoj Kumar, Aged about 40 years, Son of Ramdeni Paswan, Resident of Village: Bara, P.O. & P.S: Chhatarpur District- Palamau Jharkhand, 6. Rama Shankar Pandey, Aged about 37 years, Son of: Late Madhyeshwar Pandey, Resident of- Village: Thakurai Didri, P.O.- Sangbar, P.S: Lesliganj, District- Palamau, Jharkhand 7. Pramod Prasad, Aged about 42 years, Son of Faneshwar Prasad, Resident of Village: Katual Khurd, P.O.- Katual Kalan, P.S: Chainpur, District- Palamau, Jharkhand 8. Rajesh Paswan, Aged about- 39 years, Son of Subedar Paswan, Resident of Village: Bhang, P.O.- Sagalim, P.S: Panki, District- Palamau, Jharkhand 9. Kundan Kumar Singh, Aged about- 33 years, Son of: Manoj Kumar Singh, Resident of Village & P.O.- Babhandih, P.S: Pipra, District Palamau, Jharkhand 10. Kamlesh Yadav, Aged about 31 years, Son of: Ramdash Yadav, Resident of Village: Dhakcha, P.O.- Pachmo, P.S: Hariharganj, District- Palamau, Jharkhand 11. Ajay Kumar Singh, Aged about- 46 years, Son of: Late Badri Prasad Singh, Resident of Village: Dhakcha, P.O. Pachmo, P.S: Hariharganj, District- Palamau, Jharkhand 12. Lalan Kumar, Aged about- 39 years, Son of: Bhola Nath Manjhi, Resident of Village: Baralota, P.O.- Baralota, P.S: Medininagar, District- Palamau, Jharkhand 13. Santosh Kumar Singh, Aged about-45 years, Son of: Late Badri Singh, Resident of- Village: Dhakcha, P.O.- Pachmo, P.S: Hariharganj. District- Palamau, Jharkhand 14. Ranjeet Ranjan, Aged about- 48 years, Son of Munnu Ram, Resident of Village: Mali Mohalla, P.O. & P.S: Daltonganj, District- Petitioners Palamau, Jharkhand … … … … Versus 1. The State of Jharkhand 2. The Joint Secretary, Department of Personnel, Administrative and Rajbhasha Department, At- Project Building, Dhurwa, P.O. & P.S.- Jagarnathpur, District- Ranchi, Jharkhand. 3. The Commissioner, Palamu Division, having its Office At- Medininagar, P.O. & P.S.- Medininagar, District- Palamu, Jharkhand. 4. The Deputy Commissioner, Palamau, P.O. & P.S.- Medininagar, Respondents District- Palamu, Jharkhand. … … --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioners For the Respondents --- --- : Mr. Abhijeet Kumar Singh, Advocate : Mr. Ashutosh Anand No. 2, Advocate : Mr. Harsh Chandra, Advocate : Mr. Mrinal Kanti Roy, G.A. I 05/02.05.2024 This writ petition has been filed for the following reliefs:- “For a direction upon the respondents to immediately and forthwith give posting to the petitioners in compliance of the order dated 12.09.2018 passed by this Hon'ble Court in W.P.(S) No.- 6709/2017 and analogous cases, upheld by Division Bench in L.P.A. No. 26/2019 as the respondents by issuance of memo no.- 605 dated 08.10.2020 has already recommended their names with direction to appoint them and the petitioners accordingly gave their joining but they have not been given posting on the ground of pendency of Criminal Case being Daltonganj Town P.S. Case no.- 382/2017 which has now been quashed by this Hon'ble Court. (ii) For further direction upon the respondents to make payment of salary and other emoluments to the petitioners w.e.f. date of issuance of memo no.- 605 dated 08.10.2020 as they have undertaken in the Contempt proceeding that the petitioners and other persons have been given joining in compliance of order of this Hon'ble Court but since then they have not given posting on plea of pendency of Criminal case being Daltonganj Town P.S. Case no.- 382/2017. Argument of the petitioners 2. It has been submitted by the learned counsel for the petitioners that the surviving grievance is only in connection with paragraph 1(ii) of the writ petition. 3. The petitioners had participated in the selection process arising out of Advertisement No.1 of 2010 for appointment of 4th grade employees within the district of Palamau and the petitioners were 2 successful, but the name of the petitioners did not figure in the final list. The petitioners approached this Court by filing a writ petition being W.P.(S) No. 6709 of 2017 and other analogous cases and vide order dated 12.09.2018 the respondents were directed to prepare merit list as per the marks obtained in the written examination conducted by them
Facts
on 05.11.2017. The order was challenged by the respondents in LPA No.26 of 2019 which was dismissed on 07.11.2019 and when the order of the writ court was not complied, a contempt case was filed being Contempt Case (Civil) No. 22 of 2019 and other analogous cases. During the pendency of the contempt case, the respondents issued Memo No.605, dated 08.10.2020, whereby the petitioners and other candidates were directed to join. 4. A specific averment has been made in paragraph no.20 of the writ petition that pursuant to the said memo dated 08.10.2020, the petitioners had given their joining but no posting was given to them on account of pendency of the criminal case lodged by the respondents in connection with the selection process being Daltonganj Town PS Case No.382 of 2017. Ultimately, the said criminal case was quashed by this Court in Cr.M.P No. 1893 of 2020 vide order dated 13.12.2021. Against the order, the respondents moved the Hon’ble Supreme Court in Criminal Appeal No. 2659 of 2023, and the order of this Court, dated 13.12.2021, was set aside vide judgment dated 01.09.2023 and the matter was remanded back to this Court for a fresh decision. On remand, a fresh order was passed, and again the criminal case was quashed. 5. The learned counsel submits that there are two materials available on record to show that the petitioners had given their joining pursuant to the Memo No. 605 dated 08.10.2020. The first one is paragraph No. 14 of the show cause filed in Contempt Case (Civil) No. 22 of 2019 and other analogous cases and second one is in the order passed by the Hon’ble Supreme Court which has also taken into consideration that the petitioners were in employment and appropriate directions were issued while remanding the criminal case to the High Court for fresh consideration :- 3 “Taking into consideration of the fact that the respondents are in employment as of now, the status quo as on today shall be maintained.” 6. The learned counsel submits that criminal case having been quashed, the petitioners are discharging their duties after getting posting from the respondents and the surviving dispute is only regarding wages for the period from the date of joining till the posting. 7. It is submitted that so far as the intervening period from the date of joining till date of posting is concerned , the petitioners are entitled for wages. The petitioners cannot be deprived of wages for the period, they have been kept waiting for the posting, which is for the period from November 2020 till they have been posted. 8.
Legal Reasoning
Bench of this Court in W.P.(S) No. 6709 of 2017 and its analogous cases, wherein the subsequent action was challenged and the Court 9 has held that once the game starts, rule cannot be changed and direction was issued to publish the result in light of the examination conducted on 05.11.2017. In the meantime, a contempt petition was filed, in which, the State undertaken that they will publish the result disclosing the names of the petitioners. Pursuant thereto the petitioners have already been appointed and the said order of the writ court was affirmed by the Division Bench of this court in L.P.A. No. 455 of 2019. The said LPA was dismissed for default. Thus, the order of the Single Judge has attained the finality.” 20. In spite of the fact that criminal case was quashed, no posting was given to the petitioners which became a cause of action for filing the present case. However, during the pendency of this writ petition, posting has been given to the petitioners and petitioners are claiming for payment of salary and emoluments w.e.f. the date of issuance of aforesaid appointment letter contained in memo no. 605 dated 08.10.2020 on the ground that there is no fault on the part of the petitioners as they had given their joining but the respondents did not give them posting. 21. This Court finds that in order to purge the contempt a specific submission was made before this Court that the order of the writ Court has been fully complied and appointment order has also been issued with a direction to join from 12.10.2020 to 17.11.2020. After the contempt proceeding was dropped on 16.10.2020 taking into consideration the aforesaid submissions, the respondents had taken a decision on 12.11.2020 just five days prior to the last date of joining, i.e. 17.11.2020 to keep the appointment process in abeyance on account of pendency of the criminal case. 22. It is not in dispute that amongst the selected candidates, 51 persons were accused in Daltonganj P.S. Case No. 382 of 2017 and one was accused in another criminal case but it is not clear from the records as to who was the person who was an accused in the case other than Daltonganj P.S. Case No. 382 of 2017 as neither the case number nor the name of such one person has been specifically mentioned in decision dated 12.11.2020. Upon a query of this Court the learned counsel for the petitioners has submitted that the petitioners were 10 accused only in Daltonganj P.S. Case No. 382 of 2017 and no other case. In the meantime, and prior to decision dated 12.11.2020, the petitioners had given their joining and in support of which documents have been annexed with the writ record and statement has been made in
Arguments
The learned counsel has relied upon the judgment passed by this Court in W.P.(S) No. 7531 of 2012 dated 16.01.2013 (Yamuna Giri Vs. State of Jharkhand), and also in W.P.(S) No.6424 of 2017, dated 20.11.2017 (Renu Kumari Vs. The State of Jharkhand and others). The learned counsel submits that since there was no fault on the part of the petitioners, the petitioners cannot be deprived of the wages for the intervening period. The learned counsel also submits that all the petitioners were party before the Hon’ble Supreme Court in the aforesaid Criminal Appeal No.2659 of 2023 and other analogous cases. Argument of the respondents 9. The learned counsel for the respondents, while opposing the prayer of the petitioners, has submitted that no appointment letter was issued to the petitioners and there is nothing on record that the joining was accepted. The learned counsel has submitted that merely because the petitioners filed letters of joining that by itself does not mean that the joining was accepted. He submits that acceptance of joining is a procedure and calls for an order from the competent authority. The learned counsel submits that after completion of all the formalities, fresh order dated 04.01.2024 has been issued with regard to issuance of appointment letter to the petitioners and other similarly situated persons subject to the conditions and also submitting of documents as mentioned in the aforesaid letter dated 04.01.2024. The learned counsel has submitted that although certain observations have been made by the 4 Hon’ble Supreme Court with regard to the fact that the petitioners are already working but the same would require verification of the records. 10. Learned counsel for the respondents has submitted that two documents may be taken into consideration. He has referred to the counter affidavit and has submitted that on 12.11.2020, a decision was taken by the Office of the Deputy Commissioner cum Establishment Committee of the District of Palamau observing that against 52 persons amongst those who were declared successful in selection process criminal cases were pending in Court and in such circumstances the appointment procedure was kept in abeyance till they received appropriate legal advice from the Law Department. The learned counsel further submits that a decision dated 4.1.2024 has been brought on record wherein a decision was taken to issue letters of appointment with following conditions: - (a) They would file an affidavit that the documents submitted by them are genuine and in case any incorrect document is found it will be open to the respondents to take legal action (b) they are not involved in giving and taking dowry in connection with any marriage (c) they have not been convicted by any competent court and no criminal case is pending against them. 11. He submits that a conscious decision was taken and a letter dated 12.11.2020 was issued to keep the appointment process in abeyance which was reviewed and a fresh decision was taken on 04.01.2024 to issue appointment letters and therefore, there is no question of joining of the petitioners prior to 04.01.2024. Rejoinder Argument of the petitioners 12. To this, the learned counsel for the petitioners has submitted that a specific averment has been made in paragraph no. 19 of the writ petition that the petitioners have given their joining in the office of Deputy Collector, Medininagar Palamu and the same has not been denied in the counter affidavit, rather it has been simply stated that it is a matter of record and the same has been stated to be formal in nature which required no comments from the respondents. 5 Findings of this Court 13. It is not in dispute that the petitioners had participated in the selection process pursuant to Advertisement No. 1/10 dated 29.07.2010 for appointment of 4th Grade employees within the district of Palamau and pursuant to written examination they were called for counselling vide press release dated 12.11.2017, however the respondents published a press release wherein a fresh list/panel was enlisted for counselling. The said action of the respondents was challenged by the petitioners and other persons in writ petition being W.P. (S) No. 6709 of 2017 which was decided in favour of the writ petitioners vide judgement dated 12.09.2018. Paragraph 11 to 13 of the said judgment is quoted as under:- 11. In view of facts and circumstances narrated hereinabove, the respondents are directed to appoint the petitioners on the basis of marks obtained in the written examination. No additional marks can be allotted in counselling. Counselling is permitted in accordance with law as per terms and conditions of the advertisement for verification of certificates. If the candidates who have appeared in the written examination and have been declared successful and are eligible for appointments after verification of certificates and testimonials, it is open for the respondents to prepare a list for appointment in accordance with law. 12. In the instant case, admittedly examinations were held on 05.11.2017 pursuant to Advertisement No. 01/2010 for appointment to the Class-IV posts in Palamau Collectorate. Said Advertisement No. 01/2010 nowhere speaks about the holding of any interview or re-test. The appointment has to be carried out in accordance with the advertisement notice. Once the respondents have floated the advertisement and process of appointment has started, it cannot change the rules of the game once the game has started. In the instant case examination is already over and merit list has been prepared. Once the process is over, how can the respondents change the rules for such appointment. There cannot be a doubt that it is the absolute discretion of the employer to make or not to make appointments, even after an advertisement has been issued for 6 inviting applications for appointment but the respondents cannot be allowed to change rule for such appointment. 13. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, all these writ petitions are allowed. Respondents are directed to prepare merit list as per the marks obtained in the written examination conducted by them on 05.11.2017. It is open for the respondents after preparation of the merit list to go for appointments of the candidates as per the rules laid down in accordance with law subject to verification of certificates in the counselling. Let the entire exercise be completed within a period of 12 weeks from the date of receipt/ production of a copy of this order. Needless to say, if petitioners are found fit for appointment as per marks obtained in the written test and upon verification of the certificates in the counselling and if there is no other legal impediments, the appointments shall be made within a period of four weeks thereafter. 14. Upon perusal of the aforesaid judgment, it is clear that the respondents were directed to prepare merit list as per the marks obtained in the written examination conducted by them on 05.11.2017 within a period of 12 weeks from the date of the judgment. It was also observed that if the petitioners were found fit for appointment as per marks obtained in the written examination test and upon verification of certificates in the counselling and if there is no legal impediment, the appointment shall be made within a period of four weeks thereafter. 15. The Letters Patent Appeal No. 26 of 2019 against the aforesaid judgment was dismissed vide order dated 07.11.2019. However, the direction of the writ Court was not complied and contempt case being Contempt Case (Civil) No. 22 of 2019 and other analogous cases were filed. During the pendency of the contempt case, one decision contained in memo no. 605 dated 08.10.2020 was taken whereby the petitioners and other candidates were directed to join pursuant to their selection and such decision was brought to the notice of the Court in contempt case. On 16.10.2020 it was submitted by the learned counsel appearing on behalf of the State in the pending contempt case by referring to show cause that the order of the writ Court has been fully complied and a reference was made in paragraph 14 of the show cause referring to the 7 decision taken in meeting dated 08.10.2020 and it was also submitted that appointment orders have been issued vide memo no. 605 dated 08.10.2020 and the selected candidates were directed to join during the period from 12.10.2020 to 17.11.2020. Consequently, the contempt proceeding was dropped by observing that the order of the Court has been fully complied. The portion of the order dated 16.10.2020 dropping the contempt proceedings passed in the contempt cases is quoted as under: - “At the very outset, Mrs. Vandana Singh, learned Sr. SC-III appearing for the opposite parties-State, draws the attention of the Court towards para-14 of the show-cause dated 15.10.2020 and submits that the order of the Court has been fully complied with. Para-14 of the said show-cause is quoted herein below: “14. That it is humbly stated and submitted that from the said final panel list the appointment of the the Establishment candidates have been made by Committee in the meeting held on 08.10.2020. The Appointment Order has been issued vide order memo No. 605 dated 08.10.2020 and the selected candidates have been directed to join from 12.10.2020 to 17.11.2020.” From the aforesaid paragraphs, it appears that order of the Court has been fully complied with and no contempt is made out against the opposite parties and hence, it is dropped.” 16. Thus, the appointment order contained in memo no. 605 dated 08.10.2020 and that the petitioners were to join from 12.10.2020 to 17.11.2020 was relied upon by the respondents to persuade this Court to drop the contempt proceedings. 17. This Court further finds that the petitioners have specifically stated in the writ petition in paragraph 19 that pursuant to aforesaid letter dated 08.10.2020 they have given their joining in the office of Deputy Collector, Medininagar, Palamau and in support of such statement documents have been annexed showing the letters by which the petitioners have given their joining vide Annexure-9 series. 18. It is the case of the petitioners that inspite of their joining no posting was given on account of pendency of one criminal case against them lodged by the respondents in connection with the same selection process being Daltonganj (Town) P.S. Case No.382 of 2017 and the entire criminal proceeding was challenged before this Court in various 8 petitions filed u/s 482 of Cr. P.C. including Cr. M.P. No. 1893 of 2020 and other analogous cases and the criminal proceeding was quashed vide judgment dated 13.12.2021. Against the judgment dated 13.12.2021 the state preferred appeal which was numbered as Criminal Appeal No. 2659 of 2023 and other analogous cases and the judgment of the High Court was set aside and the matter was remitted back to the High Court for fresh decision vide order dated 01.09.2023. Before the Hon’ble Supreme Court also, the matter regarding the then status of the petitioners was considered and it has been specifically observed in the aforesaid order of remand that the respondents of the said case (that is, present petitioners) were in employment. Taking this fact into consideration an order of status-quo was passed which is quoted as follows: - “Taking into consideration of the fact that the respondents are in employment as of now, the status quo as on today shall be maintained.” 19. Thereafter a fresh order was passed by this Court on remand and this Court again quashed the entire criminal proceedings arising out of the Daltonganj P.S. Case No. 382 of 2017 vide judgment dated 21.11.2023. The said judgment had attained finality. In the judgment dated 21.11.2023 although the case was relating to the quashing of the criminal case, but in paragraph 11 while recording the finding it has been again recorded that the petitioners have already been appointed. Paragraph 11 of the judgement is quoted as under:- “11. In view of the above submissions of learned counsel appearing for the parties, the court finds that admittedly the advertisement was made on 26.07.2010 for appointment to the posts of Class-IV in the district of Palamau. On 05.11.2017, the written examination was conducted and on 09.11.2017 the result was published. On 12.11.2017, the petitioners were called for counselling and on that day itself, the petitioners were asked to sit for reexamination. There was no prior notice that these petitioners were further required to sit in re-examination and that was not stipulated in the advertisement dated 26.07.2010 and this fact has been taken note by a co-ordinate
Decision
paragraph 19 of the writ petition. 23. Thereafter another order dated 04.01.2024 was passed by the respondents whereby the aforesaid decision dated 12.11.2020 was recalled and another decision was taken to issue appointment letters to all the persons. 24. This Court finds that specific plea of the petitioners that they had given their joining pursuant to decision contained in memo no. 605 dated 08.10.2020 has not been denied by the respondents in the counter affidavit. Otherwise also, observation made by the Hon’ble Supreme Court that the respondents before the Hon’ble Supreme Court are in employment and on that ground an order of status quo as on 01.09.2023 also indicates that an impression was made before the Hon’ble Supreme Court by the state that the respondents were already in employment. It is not in dispute that all the present petitioners were respondents in Criminal Appeal No. 2659 of 2023 and other analogous cases. 25. This Court also finds that the direction to issue appointment letters as was directed by the writ Court was not complied and a contempt proceeding was initiated wherein it was submitted by the State that the order of the writ Court has been complied in letter and spirit mentioning that the appointment letters were issued to the petitioners giving them time to join. The records of this case indicate that pursuant to the memo no. 605 dated 08.10.2020 the petitioners submitted their necessary documents and gave their joining as stated in the writ petition but such statements and documents have not been disputed in the counter affidavit. 26. Thus, the records of this case reveal that the petitioners have given their joining vide annexure-9 series but no posting was given to them on account of the pendency of the criminal case which was ultimately quashed by this Court in exercise of power under section 482 of Cr. P.C. 11 27. This Court is of the considered view that petitioners having given their joining are entitled to the service benefits right from the date of their joining. 28. As a cumulative effect of the aforesaid findings, the respondents are directed to release the wages/salary to the petitioners for the period from the date of joining (Annexure-9 series) till the date of their posting subject to verification of records. The needful be done within a period of six months from the date of communication of this order. 29. This writ petition is accordingly disposed of. 30. Pending I.A., if any, is closed. Binit (Anubha Rawat Choudhary, J.) 12