SURESH PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN all these writ applications, the petitioners have a common grievance and the common questions of law, based on identical facts, have been raised and as such the same are being taken up together and disposed of by this common order.

(2.) THE grievance of the petitioner is that after about 14 -15 years long services, they have been issued a letter in the form of show cause and that too after a pre -decision to terminate their services on the ground that there is no proof that their initial appointments were made after following the prescribed procedure and the reservation policy. It has been contended that irregularity can not be cured and regularized only on the ground of long passage of time and that the impugned orders are passed in the light of the judgment passed in LPA No. 675/2000. According to the petitioners, the order passed in LPA No. 675/2000 by the Patna High Court has got no application in their cases, inasmuch as, in the Special Leave to Appeal (Civil) filed before the Supreme Court, an interim order for maintaining the status quo as on 13.10.2003, has already been passed. Since there is slight difference in the facts of each case, before coming to the common questions of facts and law, it is necessary to look into the brief facts of each case separately. Suresh Prasad V/s. The State of Jharkhand and Ors., W.P.(S) No. 1192/2004 The petitioner has prayed for quashing the Memo No. 320, dated 3.2.2004 (Annexure -15) whereby the petitioner has been asked to reply as to why the decision should not be taken by the respondents to terminate his services. The petitioner 'scase is that in the year 1989 he along with others was appointed as Janjeer Wahak (Chain Man) by Memo No. 628, dated 2.8.1989. In the year 2001, a show cause notice dated 4.1.2001 was issued asking as to why the petitioner 'sservices be not terminated. The petitioner filed reply stating inter alia, that his appointment was made after following the prescribed procedure by the competent authority and with the approval of the establishment committee. However, by order dated 8.9.2001 his services were terminated by the State of Bihar. The petitioner had challenged the legality of the order in W.P. (S) No. 5771/2001 as the petitioner was then posted in the State of Jharkhand after reorganization of the State and the State of Bihar had no authority to issue such order. The said writ application was disposed of by order dated 12.3.2002 quashing the order of the petitioner 'stermination and directing for his reinstatement. After reinstatement the respondents issued a show cause notice by Memo No. 3390, dated 31.10.2002 asking the petitioner as to why his services be not terminated on the ground that the petitioner 'sappointment was made subject to approval of the Director, Rehabilitation and Land Acquisition, Water Resources Department, Government of Bihar, but no approval was given and his appointment was made when there was a bar on the appointment and as such the said appointment was not in accordance with law as the Special Land Acquisition Officer was not empowered for such appointments as his power for appointment was withdrawn in the year 1983. The petitioner submitted his reply categorically stating that his appointment on the post of Janjeer Wahak was approved by the establishment committee and the his appointment was made by the Special Land Acquisition Officer who had power to appoint and at the relevant time there was no total ban on the appointment of class III and IV posts in the said letter and there was a saving clause that the appointment can be made in exigency. In spite of the same the said impugned letter as contained in Annexure -15 has been issued informing the respondents decision to terminate the petitioner asking him to produce any new fact, plea or evidence. According to the petitioner, the said notice is colourable and the same has been issued after taking decision of terminating his services although all the facts and the grounds were placed before the respondents and there was no legal basis to proceed further in the matter. Ram Ayodhya Ray V/s. State of Jharkhand and Ors., W.P. (S) No. 2437/2004 The petitioner has prayed for quashing the letter No. 646, dated 4.3.2004 (Annexure -5) issued by the Additional Secretary to the Government, Water Resources Development Department, Jharkhand whereby after taking decision to terminate the services of the petitioner, a show cause notice has been issued asking him to produce any new fact, plea or evidence, lest the order of termination of his services will be passed. According to the petitioner, his appointment was validly made on the post of Janjeer Wahak by the Land Acquisition Officer, Gandak Project, Siwan by Memo No. 719, dated 31.10.1983. In they year 1998, the validity of the petitioner 'sappointment was questioned but after filing reply to the show cause and verification of the service records, no adverse order was passed. The petitioner was transferred to different places during his service tenure. His appointment was approved by the Director, Rehabilitation and Land Acquisition, Water Resources Department, Government of Bihar. During the service period he was also given promotion by Memo No. 18, dated 6.1.89 to the post of Mapak. Again by a letter No 646, dated 4.3.2004 the petitioner was asked to file his reply as to why his services be not terminated as he was appointed by the Special Land Acquisition Officer on 31.10.1983 and subsequently promoted to the post of Mapak in the year 1989 without any authority. The petitioner filed his reply stating, inter alia, that the Special Land Acquisition Office, Siwan was delegated with the power to make appointment of Class III and IV posts and accordingly the petitioner was appointed by him and the Director, Rehabilitation and Land Acquisition, Government of Bihar, had approved and extended the services of the petitioner and that at the relevant time there was no bar on the appointment. The grievance of the petitioner is that without giving any consideration on his reply, the impugned letter No. 646, dated 4.3.2004 (Annexure -5) has been issued alleging that the petitioner was appointed by the then Special Land Acquisition Officer, Siwan who had no power to make such appointment and the then Director, Land Acquisition and Rehabilitation, Water Resources Department, extended his service period improperly and that at the relevant time, there was a ban on the appointment and that the Patna High Court in L.P.A. No. 675/2000 has held the said termination order justified. In the said letter it has been stated that the Government has taken a decision to terminate his services and if any fresh fact, evidence or plea is not produced, the order of termination shall be issued. Kamlesh Kumar Bihari and Ors. V/s. The State of Jharkhand and Ors., W.P. (S) No. 1798/2004 The petitioners are aggrieved by the letters dated 4.3.2004 as contained in Annexure -6 series communicating the decision of terminating their services. They have been asked to produce new fact, plea or evidence, if any, lest the order terminating their services will be issued. Petitioner No. 1 was appointed as Amin on 15.9.1988, petitioner No. 2 as Chain Man on 29.4.1987, petitioner No. 2 as Chain Man on 2.8.1989, petitioner No. 4 as Chain Man on 24.7.1989 and petitioner No. 5 as Chain man on 11.5.1989. The petitioner No. 1 was appointed by the Special Land Acquisition Officer, Sone Project, Aurangabad on the vacant sanctioned post of Class IV as Mapak (Amin) on the recommendation of the Director, Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar who was the competent authority of making said appointments. The petitioner No. 1 thereafter transferred from one place to another. In the year 1995, validity of his appointment was questioned by the department and a show cause notice was issued to him. The petitioner No. 1 filed his effective reply and thereafter no adverse order was passed and he was allowed to continue in service without any demur. The petitioner No. 2 was appointed as Janjeer Wahak (Chain Man) at Bhagalpur by the Director, Land Acquisition and Rehabilitation, Department and transferred to Daltonganj in the year 1987 and since then he is continuously working. The petitioner No. 3 was appointed by Special Land Acquisition Officer, Sone Project, Aurangabad on the post of Janjeer Wahak (Chain Man) on the recommendation of the Director, Rehabilitation and Land Acquisition Department. The petitioner No. 3 was then transferred to Ranchi and thereafter, to Daltonganj. In the year 1998 his appointment was questioned by the department. The petitioner No. 3 had submitted his reply and thereafter, there was no adverse order and the petitioner was allowed to continue in service. The petitioner No. 4 was appointment by the Director, Land Acquisition and Rehabilitation, on the recommendation of establishment committee at North Koel Project on the post of Janjeer Wahak (Chain Man) and was posted at Ranchi. He was given show cause notices twice one in the year 1994 and another in 1998, questioning the legality of his appointment and after submitting his explanation no adverse order was passed. The petitioner thereafter was transferred to Daltonganj on 30.6.2000 and he has been continuing as such. The petitioner No. 5 was appointed by the Director, Rehabilitation and Land Acquisition to the post of Janjeer Wahak (Chain Man) and was posted at Ranchi. In the year 2000 he was transferred to Daltonganj where he has been continuing till date. The petitioner was a displaced person and was earlier given a show cause notice in the year 1994 -1998 against which he filed his reply and thereafter no adverse order was passed. All the petitioners have claimed that they have been appointed against the vacant sanctioned posts and by the competent authorities and there was absolutely no illegality in their appointments. Shakuntala Devi V/s. The State of Jharkhand and Ors., W.P.(S) No. 1661/2004 The petitioner has prayed for quashing the letter dated 23.2.2004 (Annexure -6) whereby she has been informed that her appointment has been found illegal and she can produce any new/additional fact, plea, or evidence in defence, lest the order of termination shall be issued. It has been mentioned that in L.P.A. No. 678/2000 and others, the termination order of similarly situated employee has been held justified by the Patna High Court. The petitioner 'sappointment has been said to be illegal on the basis that her appointment was made when there was a bar on such appointment and that the prescribed procedure was not followed and that there was no certificate of displaced person on record. According to the petitioner, she was appointed as Kosh Rakshak (Treasure Guard) by the Director Land and Rehabilitation, Water Resources Department, Government of Bihar on 18.5.1999 on the vacant sanctioned post on the ground of she being a displaced person. After continuous service for several years, a show cause notice was issued in the year 1998 alleging her appointment as illegal. The petitioner had filed reply giving all the details. Thereafter, no adverse order was passed. According to the petitioner, her appointment was made by the Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar is valid and legal. There were altogether 36 sanctioned posts of Kosh Rakshak (Treasury Guard) and the petitioner has been appointed against the vacant sanctioned posts. Again without any fresh material, the said impugned letter dated 23.2.2004 has been issued under the signature of the Additional Secretary to the Government Water Resources Department, Government of Jharkhand. Nanheshwar Sharma V/s. The State of Jharkhand and Ors., W.P.(S) No. 1291/2004 The petitioner is aggrieved by the letter dated 16.2.2004 (Annexure -7) issued by the respondent No. 2 whereby the petitioner has been informed that the Government has taken decision to terminate his services and he has been asked to produce any new fact, plea, or evidence in defence, lest the order of termination shall be passed. According to the petitioner, he was appointed as Janjeer Wahak (Chain Man) on 15.9.1988 by the Special Land Acquisition Officer, Aurangabad who was delegated with the power to appoint class III and IV employees by a departmental letter dated 18.2.1978. The petitioner was transferred to the office of the Special Land Acquisition Officer, Daltonganj on 29.3.1989 and since thereafter he has been continuously working till date. The service book was opened in the year 1990 and salary has been continuously paid. It has been stated that the Government has issued letter No. 1290, dated 13.5.1994 clearly mentioning that there was altogether 540 sanctioned posts of Janjeer Wahak (Chain Man). The petitioner 'sappointment has been made against the sanctioned vacant posts. Notices regarding the invalidity of his appointment were issued in the year 1995 and 1996 against which the petitioner had duly replied (Annexure -4 and 4/1), but no adverse order was passed thereafter. Again a notice was sent by the State of Bihar in 2001 which was also replied by the petitioner. Suddenly a notice dated 16.2.2004 (Annexure -7) has been issued communicating the impugned government decision to terminate his services and asking him to file any additional fact or ground in defence, though he has already filed effective reply with sufficient grounds and the same are also on the records of the respondents. Sohan Singh Devgam V/s. The State of Jharkhand and Ors., W.P.(S) No. 1559/2004 The petitioner is aggrieved by the letter dated 20.2.2004 (Annexure -5) issued to him by respondent No. 2 whereby he has been informed of the government decision to terminate his services asking him to produce any fact, evidence or plea in defence, failing which the order for termination from his services shall be issued. The petitioner has stated that he was appointed to the post of Janjeer Wahak (Chain Man) on 16.10.1986 by the Special Land Acquisition Officer, Swarnarekha Project, Adityapur who was delegated with the power to appoint class III and IV employees (Annexure -1). Since then he has been continuously working and thereafter in the year 1997 he was transferred to the office of the Special Land Acquisition Officer, Garhwa. The petitioner was, thereafter, transferred to the office of Special Land Acquisition Officer, Daltonganj in the year 1998. The petitioner was then deputed to the office of the Divisional Commissioner Daltonganj. According to the petitioner, his service book was opened and no illegality in his appointment was ever found. He has been working and getting his salary without any break. The petitioner has stated that he was appointed against the sanctioned vacant post of Janjeer Wahak (Chain Man). In the year 1998, a show cause notice was issued to him to show the validity of his appointment against which the petitioner filed an effective reply and thereafter no adverse order was passed against him. The petitioner was displaced person and his appointment was made also on that ground. The petitioner has assailed the authority of the respondents for issuing the impugned letter (Annexure -5). Sanjay Kumar V/s. State of Jharkhand and Ors., W.P. (S) No. 1808/2004 The petitioner is aggrieved by the letter dated 9.3.2004 (Annexure -8) issued to him by the respondent No. 3 whereby he has been informed that the government has taken decision to terminate his services and he has been asked to produce any new plea, evidence or fact in evidence, failing which the order of termination will be issued. The petitioner was appointed in the year 1990 on the post of Bhu Mapak (Amin) by the Special Land Acquisition Officer, Sone Project, Daudnagar (Annexure -1). In the year 2000, his services were terminated. The petitioner then filed a writ application whereby it has been held that the State of Bihar has no jurisdiction to issue such order. The petitioner was then reinstated by order dated 6.10.2003. By Memo No. 358, dated 12.2.2004, it has been clarified that the petitioner 'sreinstatement will be effective from 11.12.2000. The petitioner was again issued a show cause against which the petitioner replied, but without considering the same, the impugned letter dated 9.3.2004 has been arbitrarily issued. Bihari Lal Sao V/s. The State of Jharkhand and Ors., W.P. (S) No. 1797/2004 The petitioner is aggrieved by the letter dated 13.2.2004 (Annexure -6) issued to him by the respondent No. 2 whereby he has been informed that the government has decided to terminate his services, and asked to produce any new plea, fact, or evidence in defence, lest the order of termination shall be issued. According to the petitioner, he was appointed by letter dated 10.11.1986 against the vacant sanctioned post of Janjeer Wahak (Chain Man) on the ground of he being a displaced person. His service book was opened and he has been continuously working. The petitioner was transferred from place to place and at present he has been posted in the office of the Special Land Acquisition Officer, Tenughat, Project, Hazaribagh. In the year 1998, a notice was issued to him questioning his appointment against which he filed a detailed reply, thereafter, no adverse order was passed. According to the petitioner, he has been appointed against the sanctioned vacant post of Janjeer Wahak (Chain Man) and there is no illegality of irregularity in his appointment and he has been continuously working since long to the satisfaction of the respondents. Chandrika Ram V/s. State of Jharkhand and Ors., W.P.(S) No. 2464/2004 The petitioner has prayed for quashing the letter dated 23.2.2004 (Annexure -5) as well as the reminder letter dated 8.4.2004 (Annexure -5/A) issued to him by the respondent No. 2 whereby he has been informed of the government decision to terminate his services asking him to produce any new plea fact or evidence in defence, lest the order of his termination form service shall be issued. The petitioner was appointed on the post of Mapak (Amin) by the Director, Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar by letter dated 21.3.1989 against the vacant sanctioned post of class IV on the ground of he being a displaced person. According to the petitioner, his appointment was made on the recommendation of the establishment committee after considering all the eligibilities and educational qualifications. The petitioner was posted at Kosi Project, Sakri and thereafter transferred to Supaul in the year 1991. The petitioner was thereafter transferred to the office of the Special Land Acquisition Officer, Medium Irrigation Project, Deogarh in the year 1992. In the year 2003 the petitioner was transferred to Chandil where he has been continuously working till date. In the year 1998, a show cause notice was issued to him questioning the validity/legality of his appointment against which he filed a reply, but thereafter no adverse order was passed. Accor - ding to the petitioner, he has been validly appointed by a competent authority against the vacant sanctioned post. His service book was opened and he has been continuously serving and getting his salary. Ashok Kumar Jha V/s. State of Jharkhand and Ors., W.P. (S) No. 1927/2004 The petitioner has prayed for quashing the letter No. 304, dated 13.2.2004 (Annexure -3) whereby he has been informed that the government has taken decision to terminate his services and asked to produce any new fact, evidence or plea and defend, lest the order of his termination from service shall be issued. He has also prayed for a direction to the respondents restraining them to take any action pursuant to the said letter. The petitioner 'scase is that he was appointed as Mapak in the year 1988 (Annexure - 1) and he has been continuously working since then. In the year 1998, a notice was issued to him questioning the legality of his appointment against which he filed a detailed reply and thereafter no adverse order was passed. The petitioner is at present working in the office of the Special Land Acquisition Officer, Medium Irrigation Project, Dumka. By letter No. 6, dated 8.1.2004, the petitioner was recommended for promotion under the Assured Career Progression Scheme. According to the petitioner, he was appointed by the Special Land Acquisition Officer, Gandak Project, Muzaffarpur who was delegated with the power to make appointment of Class III and IV employees and there is absolutely no illegality in his appointment.

(3.) LEARNED counsel appearing for the petitioners one after the other submitted that the impugned letters of termination informing the government 'sdecision to terminate the services of the petitioners on the ground mentioned therein are wholly arbitrary, unjust and illegal. Learned counsel submitted that the question of irregularity in the appointments of the petitioners is being raised after a number of years in some cases after 14 -15 years, and the same is wholly without any basis. Their initial appointments were made by the authorities who were then competent to appoint the petitioners. Though initial appointments of the petitioners were on temporary basis, yet their services were extended from time to time by the competent authority. The petitioner 'sservice books were opened and they were treated as regular employees and they were transferred from one place to other like other permanent government servants. According to them any irregularity in the initial appointment actually lost its meaning after lapse of so many years and the respondents have no authority to raise the question of such irregularity after a long lapse of time. Learned counsel submitted that in a number of writ applications filed by the similarly situated persons who were also terminated on the same ground, it has been held in the judicial pronouncement that the petitioner 'sservices cannot be terminated on the said ground after so many years. In such cases the termination orders have been quashed. Series of the said orders have been annexed with W.P.(S) No. 1658/2004. The said orders passed in different writ applications are annexed as Annexures -11, 12, 13, 14, 15, 16, 23 and 24. It has been submitted that on the basis of one of the orders passed by the Patna High Court the said impugned orders have been issued but the said order itself was under challenge in S.L.P (Civil) No. 7233 -7235/2003 before the Supreme Court wherein there is specific direction of the Supreme Court to maintain the status quo. But in violation of the said order the respondents have issued the said illegal order of termination. It has been additionally argued in W.P.(S) No. 1083/2002 that in this case the order of termination has been issued by the State of Bihar although the petitioner has been working under the State of Jharkhand after reorganization of the State and it has been already held by this Court that the authority of the State of Bihar has no jurisdiction to issue such , order. Learned counsel appearing on behalf of the petitioner(s) relied on a decision of this Court in Arvind Vijay Bilung V/s. State of Bihar and Ors., reported in 2001 (3) JCR 155 (Jhr) : (2001) 2 JLJR 227, and submitted that the impugned orders of these writ applications are liable to be quashed even on this ground alone.