The single judge bench of the Jharkhand High Court held that it is highly improbable for successor-in-office to review order of predecessor-in-office and to pass a totally different order. Under the rules of executive business, there is no such power conferred upon the authority of the same designation to recall/ review the order of his/her predecessor-in- office on the same post. However, remedy lies in challenging the order either before the higher authority or before Court of law.
Brief facts
The factual matrix of the case is that the parents of the Petitioner were married and four children were born out of their wedlock. Furthermore, due to circumstances, they got separated by way of settlement in which it was decided that two children will stay with father and the other two children will stay with mother. Thereafter, the father of the Petitioner died and the Petitioner being dependent upon his father applied for the compassionate appointment and the District Establishment Committee recommended the case of the petitioner for appointment on compassionate ground. After that, the Petitioner joined the service, however, after three years of service, he was served with the show cause notice, which was issued by the Deputy Commissioner, seeking explanation as to how he got the compassionate appointment when his mother was already on Government roll. The Petitioner explained that as his parents were separated and he was totally dependent upon his father, he got the benefit of compassionate appointment after filling up all the mandatory forms as per rules. Furthermore, not being satisfied with the explanation, the departmental proceedings were initiated against the Petitioner and the inquiry report was submitted. Thereafter, the Petitioner was dismissed from the service. Aggrieved by this, the present writ is filed.
Contentions of the Petitioner
The Petitioner contended that the Petitioner was very much entitled for the compassionate appointment as he was totally dependent upon his father. It was furthermore submitted that the ground that his mother is in the government roll can’t be accepted as his parents were separated. Also, after considering all the aspects, the District Establishment Committee recommended the case of the petitioner on compassionate ground on 16.9.2009 and now after serving for almost three years, the dismissal order that too on the ground which has already been considered by the District Establishment Committee itself, is not sustainable.
Contentions of the Respondent
The Respondent contended that the factum of separation of the parents of the petitioner is also falsified as the mother of the petitioner has got the entire death-cum-retiral benefits of the father of the petitioner by submitting family membership certificate. It was furthermore submitted that the departmental proceedings were initiated against the Petitioner and the inquiry officer proved the charge against the petitioner, as he failed to bring on record any judicial order regarding separation of his parents. Thereby, the Petitioner was dismissed from the service, which was just and proper.
Observations of the Court
The Hon’ble court observed that the order of appointment of the Petitioner was issued by the Deputy Commissioner based on the recommendation of District Establishment Committee and after serving more than three years, the departmental proceedings were initiated and the Petitioner was terminated from the services via the order issued under the pen and signature of Deputy Commissioner based on the recommendation of District Establishment Committee.
It was furthermore observed that it is well settled law that the same authority cannot review its own order, as it is clear from the executive rules of business. The likelihood of the successor-in-office reviewing the predecessor-in- office order and passing a completely different one is quite unlikely. The authority of the same designation is not granted the authority under the rules of executive business to recall or review the decision made by their predecessor in office regarding the same job. The alternative, though, is to contest the order in court or before a higher authority. Article 14 of the Constitution of India is violated when punitive action is taken suo motu without following natural justice standards.
The court noted that the legal course for reviewing the order is that the Deputy Commissioner could have sent the matter to the higher authority, but the same was totally absent in the present case.
It was also noted that the parents of the Petitioner were no more and the Petitioner was duly found satisfactory. Therefore, the case of the petitioner should be considered sympathetically.
The Court relied upon the judgments titled R.T. Rangachari Vs. Secretary of State for India in Council, State of M.P. Vs. Mansinghra, H.C. Suman and Another Vs. Rehabilitation Ministry Employees Cooperative House Building Society Ltd., New Delhi and Others, and S. Nagaraj and Ors. Vs. State of Karnataka and Anr.
Based on these considerations, the court quashed and set aside the order passed and directed the Respondents to reinstate the petitioner on the post he was working with 25% of back wages, if he was not gainfully employed anywhere during the period of dismissal.
The decision of the court
With the above direction, the court allowed the Writ Petition.
Case Title: Bipin Salil Ekka V. The State of Jharkhand.
Coram: Hon’ble Mr. Justice Dr. S. N. Pathak
Case No.: W.P.(S) No. 6319 of 2015
Advocate for the Petitioner: Mr. Ajit Kumar, Sr. Advocate, Ms. Aprajita Bhardwaj, Advocate Mr. Ranjan Prasad Ram, Advocate, Mr. Pyar Kumar, Advocate
Advocate for the Respondent: Ms. Sunita Kumari, AC to Sr. SC-II
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