BIJENDRA SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard the learned counsel for the parties. The petitioner, by way of filing this petition under Article 226 of the Constitution of India, has prayed for quashing the portion of the order as contained in Memo No. 2 dated 20.5.03 (Annexure-17) issued under the Signature of Regional Director, Animal Husbandry Department, Dumka, by which, the services of the petitioner is ordered to be terminated without giving any notice to show cause and an opportunity to file a show cause and of being heard and without following the rules and procedure when the petitioner has been working regularly to the post of Technical Assistant since 26.8.1988 I.e. for more than 15 years. It is further prayed that an appropriate direction may be issued to the respondent authorities to reinstate the petitioner on the post of technical assistant with consequential benefit.

(2.) It is the case of the petitioner that the respondent - State of Bihar decided to appoint Technical Assistants under the provision of Frozen Semen Bank Scheme on ad hoc basis in the tribal region as per the decision as contained in letter No. 11397 dated 31.12.87 (Annexure-1 to the petition) empowering the Regional Director, Animal Husbandry Department for making temporary appointment till regular appointments are made. The State Government decided that the technical Assistant being a class-III post, 50% of the post are to be appointed by direct recruitment and rest 50% of the post shall be earmarked to be appointed by promotion to Class- IV employees working in the Animal Husbandry Department. That after issuance of letter No. 11397 dated 31.12.87, the Regional Director, Animal Husbandry Department, South Chhotanagpur at Ranchi constituted the Establishment Committee. It is also the case of the petitioner that his name was registered with the Employment Exchange and accordingly his name was forwarded to the office of the Regional Deputy Director who ask the petitioner to appear before the Interview Board. It is also submitted that the petitioner along with other persons, who appeared before the Interview Board found eligible were appointed by the office order as contained in Memo No. 2601 dated 28.6.88 (Annexure- 3 to the petition). Accordingly, the petitioner was appointed against the sanctioned vacant post of technical assistant purely on temporary basis and on completion of requisite training, he was posted at Dumka. Subsequent thereto, the petitioner had cleared the Hindi Noting Drafting Examination conducted by Bihar State Rajbhasha Department and petitioner was declared successful in the said examination and since then working continuously on the post of technical Assistant right from initial date of appointment. Thereafter, the Secretary, Animal Husbandry and Fisheries Department, Govt. of Bihar, Patna vide letter No. 2084 dated 16.4.96 directed to give information under what circumstances the Regional Director, Animal Husbandry, Dumka has made appointment to class-III post when the Department by letter Nos. 626 and 637 dated 28.10.92, and 28.10.91 respectively, had withdrawn the power of Regional Director for appointment of Class- III posts. By another letter No. 6147 dated 1.11.96 (annexure-5 to the petition), the Secretary of the Animal Husbandry Department directed the Director of Animal Husbandry Department, Bihar, Patna to take steps for termination of the services of such class III posts employees who have been appointed by the order of Regional Director, after 28.10.91 and 21.2.1992. It is further submitted by the petitioner that without issuance of any show cause notice, the services of the petitioner has been terminated on 20.5.2003 (Annexure-7 to the petition) along with other 29 employees, wherein the name of petitioner has been shown at Srl. No. 19. It is further the case of the petitioner that his case is similar to that of the petitioners of writ petition being CWJC Nos. 5533/98 and 5480/98. It is submitted that the High Court of Judicature at Patna after careful consideration of the facts and circumstances involved in these matters including the counter affidavit filed by the respondents passed the order setting aside the impugned order of termination and the respondent authorities were directed to reinstate the petitioners of the said petition on the said post. It is further submitted that being aggrieved and dissatisfied with the said order, the respondent-State preferred letters patent appeal being LPA No. 325/2000 before the Patna High Court, which was dismissed on the ground of delay and latches as well as on merit and the order of the Single Judge was confirmed by the Division Bench. It is further submitted by the learned counsel for the petitioner that while dismissing the LPA, the court dealt with the issue with regard to cut off date i.e. 29th October, 1991 which provides that the Regional Deputy Director had the jurisdiction to make appointment prior to 29th October, 1991 and, therefore, it was held by the Division Bench that there is nothing wrong in such appointments. Learned counsel for the petitioner by referring counter affidavit filed by the State and the order annexed with the said counter affidavit submitted that the order passed in those matters including the orders passed by the Hon'ble Apex Court arising out of the LPA, has no relevance as the appointment of the petitioner was done in the year 1988 and therefore, there was no need to pass the order of termination by the respondent authorities. However, along with other employees, who were recruited subsequent to the year 1991, the order of termination was also passed against the petitioner. Learned counsel for the petitioner by referring I.A. No. 1446 of 04 (annexure-19) pointed out that the respondent Regional Director certified that the petitioner has rendered his services from 5.8.88 to 31.5.2003 continuously. By referring the order passed by the Hon'ble Apex Court, it is also submitted that the advertisement given by respondent authorities was in respect of 25 posts against the reserved category and the respondent State did not notify any vacancy for the general category and, therefore, the question with regard to giving opportunity to the employees whose services were terminated by giving them age relaxation is also not available to the petitioner and the other similarly situated person belonging to general category. Of course, learned counsel for the petitioner submitted that the petitioner is not required to apply in pursuance to the advertisement, as the case of the petitioner is different than that of the cases of employees whose services were terminated, as they were recruited subsequent to the year 1991. However, the advertisement produced by the respondent State along with counter affidavit includes that no such opportunity is available to such employees, despite, direction issued by the Hon'ble Apex Court in this regard.

(3.) As against this, Learned counsel appearing on behalf of State submitted that the petitioner was appointed unauthorizedly on the post of Technical Assistant, a State Cadre Post of Class-III Category during 1990-91 by the then Regional Director, Santhal Pargana Area, Dumka. It is further stated that as the post is a State Cadre, the power of appointment on the post is exclusively vested with the Director, Animal Husbandry Department only. It is further submitted that with a view to have speedy completion of the project, the Director, Animal Husbandry was directed to make appointment on the post on purely temporary and ad hoc basis till regular appointments are made vide letter No. 113 dated 31st December, 1987. It is further submitted that the Regional Directors encroached upon the jurisdiction of the Director and made a large number of appointments exceeding the sanctioned strength flouting all the norms and rules of appointment. When this fact came into light, the Secretary of the Department directed the respondent authorities concerned to terminate the services of those employees recruited by the Regional Directors. Accordingly, the services of the petitioner was terminated as it was illegal appointment. Learned counsel for the State has also referred to and relied upon the various communication annexed to the counter affidavit as well as the order passed in LPA Nos. 243, 466, 480, 539, 467, 572 and 588 of 2001 as well as the order passed by the Hon'ble Apex Court in Civil Appeal Nos. 5342, 5343, 5344, 5345, 5346 and 5376 of 2003 arising out of the above referred Letters patent appeals and submitted that the Hon'ble Supreme Court, after careful consideration of the facts and circumstances involved in these matters, directed the respondent State to constitute a Selection Committee as per the existing Rules and to start the recruitment process. The Hon'ble Supreme Court has also directed to give relaxation of age and weightage over outsiders as directed by the High Court to the candidates whose services were terminated. Therefore, According to the learned counsel appearing for the State, the petitioner is not entitled to claim as a matter of right that he should be reinstate in his services.