Jharkhand High Court
Sushma Kumari @ Sushma Kumari Devi vs State Of Jharkhand Through Its ... on 17 February, 2021
-1- W.P. (S) No. 6023 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6023 of 2018
Sushma Kumari @ Sushma Kumari Devi, aged about 54 years, wife of
Mahabir Mahto, resident of Piska More, Itki Road, Jharkhand Nagar,
P.O. Hehal, P.S. Sukhdeonagar, Ranchi-834005, District- Ranchi,
Jharkhand ... Petitioner
-Versus-
1. State of Jharkhand through its Principal Secretary, Department of
School Education and Literacy, MDI Building, Dhurwa, P.O. & P.S.
Dhurwa, Ranchi, Jharkhand-834004
2. Director, Higher and Secondary Education, Department of School
Education and Literacy, MDI Building, Dhurwa, P.O. & P.S. Dhurwa,
Ranchi, Jharkhand-834004
3. Regional Deputy Director of Education, Chotanagpur Division, Ranchi,
Near Court Compound, P.O. G.P.O., P.S. Kotwali, Ranchi-834001,
District- Ranchi (Jharkhand)
4. District Superintendent of Education, Khunti, P.O. & P.S. Khunti,
District- Khunti (Jharkhand)
5. District Education Officer, Khunti, P.O., P.S. & District- Khunti
(Jharkhand) ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Sumeet Gadodia, Advocate
Mr. Ritesh Gupta, Advocate
Ms. Neha Kumari, Advocate
For the Respondent-State : Mr. Rishu Ranjan, A.C. to S.C.-III
-----
12/17.02.2021. Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and
Mr. Rishu Ranjan, learned counsel for the respondent-State.
2. This writ petition has been heard through Video Conferencing in view
of the guidelines of the High Court taking into account the situation arising
due to COVID-19 pandemic. None of the parties have complained about any
technical snag of audio-video and with their consent this matter has been
heard on merit.
3. The petitioner has preferred this writ petition for quashing the order
dated 01.10.2018, whereby, the petitioner has been terminated after
rendering services for more than 30 years.
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4. The petitioner was appointed on a vacant post of Assistant Teacher in
Khunti, pursuant to an advertisement notice dated 21.09.1988, issued by
the office of the District School Inspectress, Ranchi under the erstwhile
State of Bihar. A three member Committee was even constituted which was
presided over by the then District School Inspectress, Ranchi for
appointment of Matric Trained Teacher in Government Girl's Middle School,
Khunti. The petitioner, being desirous to be appointed as an Assistant
Teacher, submitted her application before the concerned authority and after
following due selection process, the petitioner was selected as eligible
candidate for appointment on the vacant post of Assistant Teacher. The
appointment letter dated 27.12.1988 was issued to the petitioner by the
office of the District School Inspectress, Ranchi. The appointment of the
petitioner was shown to have been made for a period of three months, but
subsequently extension orders were issued from time to time, extending the
appointment of the petitioner. Finally vide letter dated 18.12.1989, it was
declared that the post on which the petitioner has been appointed is
permanent in nature. The petitioner was thereafter discharging her duties to
the full satisfaction of her superiors. The service of the petitioner was duly
regularized by the District School Inspectress, Ranchi vide order dated
11.01.1991, contained in Annexure-4 of the writ petition. The petitioner was
not complained of any misconduct, till date. The departmental proceeding
was initiated against the petitioner vide letter dated 08.09.2010 and charge-
sheet in Form-K was issued to the petitioner. The petitioner replied to the
said charge-sheet. The Enquiry Officer has submitted his report and
pursuant thereto the impugned order has been passed, whereby, the
service of the petitioner has been terminated vide order dated 01.10.2018.
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Aggrieved with this order, the petitioner has preferred this writ petition.
5. Mr. Sumeet Gadodia, learned counsel for the petitioner assailed the
impugned order on the ground that the charge-sheet with regard to four
charges have been issued against the petitioner and the termination order
has been passed on the other ground, which is not even the part of the
charge-sheet. He draws attention of the Court to the enquiry proceeding
and submits that the Presenting Officer in clear terms has stated before the
Enquiry Officer that the District School Inspectress, Ranchi was having the
power to appoint Matric Trained Teachers. He submits that however the
Enquiry Officer has also accepted this aspect of the matter that the
records of the petitioner are not available. However, the provision of
roster clearance or reservation has not been made before the
Enquiry Officer and pursuant thereto a CBI enquiry, which was directed
to be conducted by the direction of the Hon'ble Patna High Court. The CBI
has opined that the records of the petitioner are not available. However, the
same has been said to be made available, which is recorded in the
proceeding. He further submits that the Enquiry Officer's report is itself
contradictory and only on the ground of non-clearance of roster, the service
of the petitioner has been terminated. He also submits that at the time of
appointment of the petitioner, the District School Inspectress,
Ranchi was having the power to appoint Matric Trained Teachers.
To buttress his argument, he draws attention of the Court to the rejoinder
to the supplementary counter affidavit, filed by the petitioner and
submits that at the time of appointment of the petitioner, the
District School Inspectress, Ranchi was having the power to appoint the
petitioner.
-4- W.P. (S) No. 6023 of 2018
6. For ready reference, Rule 97(xi) of the Bihar Education Code, wherein
the power of District Inspectress of Schools has been mentioned, is quoted
herein below:
"97(xi) to make appointment of class IV Government
servants and of teachers in the scale of Rs.50-90 or below in
schools under her control and to sanction pension to all such
cases."
7. Learned counsel for the petitioner further submits that the impugned
order has been passed without considering the Enquiry Officer's report. He
also submits that by the impugned order, the liability has been imposed
upon the petitioner to the effect that the petitioner has not been able to
show whether the roster clearance or reservation is there or not. He further
submits that the petitioner was merely a candidate who appeared for her
appointment and she cannot be expected to have in possession of relevant
documents to demonstrate that the provision of reservation or roster
clearance has been followed. Even assuming that if the roster clearance and
reservation rules were not followed, the petitioner could not be held
responsible for the same that too after rendering 30 years of long service.
He also submits that in the counter affidavit, the respondents have tried to
improve the case, which is against the well settled provision of law. He
further submits that any new ground cannot be allowed to be supplemented
by way of filing the counter affidavit. To buttress his argument, he relied
upon the judgment rendered in the case of United Air Travel Services v.
Union of India, reported in (2018) 8 SCC 141.
8. Paragraph 11 of the said judgment is quoted herein below:
"11. The learned counsel for the petitioner has, thus, rightly
drawn our attention to the Constitution Bench judgment of
this Court in Mohinder Singh Gill v. Chief Election Commr. to
submit that such a plea cannot be accepted. We may note
-5- W.P. (S) No. 6023 of 2018
that this is a well-settled legal position in many judicial
pronouncements of this Court, but it is not necessary to revert
to the same. In para 8 of the aforesaid judgment, V.R. Krishna
Iyer, J., in his inimitable style states as under:
"8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get
validated by additional grounds later brought out. We
may here draw attention to the observations of Bose, J.
in Gordhandas Bhanji:
'9. ...public orders, publicly made, in exercise of
a statutory authority cannot be construed in the
light of explanations subsequently given by the
officer making the order of what he meant, or of
what was in his mind, or what he intended to do.
Public orders made by public authorities are
meant to have public effect and are intended to
affect the actings and conduct of those to whom
they are addressed and must be construed
objectively with reference to the language used
in the order itself.'
Orders are not like old wine becoming better as they grow
older."
9. So far as the liability imposed upon the petitioner of roster clearance
is concerned, learned counsel for the petitioner submits that the petitioner
is not the authority to show roster clearance before the respondent-
authority. He further submits that it was the State authority to take into
consideration about the roster clearance. The petitioner was only a
candidate and she has applied in terms of the advertisement. To buttress
his argument, he relied upon the judgment rendered in the case of Indra
Mandal Prasad Singh v. State of Bihar , reported in 2011 SCC Online
Pat 1072.
10. Paragraph 8 of the said judgment is quoted herein below:
"8. This positive stand of the petitioner, if it was
establishment from the records, was enough to hold that the
appointment of the petitioner was not illegal. Since entire
procedure, as claimed by the petitioner, was gone through by
the respondents themselves in their offices, petitioner was not
-6- W.P. (S) No. 6023 of 2018
expected to produce proof of the same in support of his claim
that the posts were advertised, names were called for from
the Employment Exchange, interview was held and then
selection was made. Hence, in absence of any proof being
produced by the petitioner in support of his this claim, the
Committee was not correct in coming to a finding that the
appointment of the petitioner was without any advertisement
or without any procedure adopted. In view of the findings of
this Court earlier and the claim of the petitioner from before,
onus lay on the respondents to establish, on the basis of
records of their offices, that either there was no decision of
the Divisional Establishment Committee as referred to in the
order of appointment of the petitioner issued by the Regional
Deputy Director or the Establishment Committee had not
taken into consideration any panel of names or had not
adopted any procedure before recommending the petitioner
for his appointment. Once that presumption, arising from the
wordings of the appointment letter, is not rebutted by the
respondents, benefit has to go to the petitioner. In the
circumstances, if it is presumed that the petitioner was
appointed pursuant to an advertisement, after calling names
from the Employment Exchange, interview and selection, non-
clearance of roster and failure to comply with the reservation
rules will only be an irregularity committed by the officers of
the State Government in their offices for which, as rightly held
by this Court in the earlier writ application of the petitioner,
petitioner cannot be penalized. 10. In the circumstances, this
Court finds that the petitioner fulfils the tests as laid down by
the Constitution Bench of the Apex Court in paragraph 53 of
the said judgment as noticed in the impugned order itself.
That being the position, this Court holds that the petitioner is
fit to be regularized in service. However, it is made clear that
though the petitioner may get continuity of service for the
purpose of pay fixation etc., he shall not be entitled to
monetary benefits of the period during which he has actually
not worked and shall not be entitled for seniority over others
who are not before this Court."
11. Learned counsel for the petitioner further submits that the Enquiry
Officer is quasi-judicial authority and the Enquiry Officer has supplemented
his report by way of another ground, which was not presented before him.
To buttress his argument, he relied upon the judgment rendered in the case
of Union of India v. Ram Lakhan Sharma , reported in (2018) 7
SCC 670.
12. Paragraphs 27 and 28 of the said judgment are quoted herein below:
"27. In State of U.P. v. Saroj Kumar Sinha, this Court had laid
down that Enquiry Officer is a quasi-judicial authority, he has
-7- W.P. (S) No. 6023 of 2018
to act as an independent adjudicator and he is not a
representative of the department/disciplinary
authority/Government. In paras 28 and 30 the following has
been held:
28. An Enquiry Officer acting in a quasi-judicial
authority is in the position of an independent
adjudicator. He is not supposed to be a representative
of the department/disciplinary authority/Government.
His function is to examine the evidence presented by
the Department, even in the absence of the delinquent
official to see as to whether the unrebutted evidence is
sufficient to hold that the charges are proved. In the
present case the aforesaid procedure has not been
observed. Since no oral evidence has been examined
the documents have not been proved, and could not
have been taken into consideration to conclude that the
charges have been proved against the respondents.
* * *
30. When a departmental enquiry is conducted against
the government servant it cannot be treated as a casual
exercise. The enquiry proceedings also cannot be
conducted with a closed mind. The Enquiry Officer has
to be wholly unbiased. The rules of natural justice are
required to be observed to ensure not only that justice
is done but is manifestly seen to be done. The object of
rules of natural justice is to ensure that a government
servant is treated fairly in proceedings which may
culminate in imposition of punishment including
dismissal/removal from service."
28. When the statutory rule does not contemplate
appointment of Presenting Officer whether non-appointment
of Presenting Officer ipso facto vitiates the inquiry? We have
noticed the statutory provision of Rule 27 which does not
indicate that there is any statutory requirement of
appointment of Presenting Officer in the disciplinary inquiry. It
is thus clear that statutory provision does not mandate
appointment of Presenting Officer. When the statutory
provision does not require appointment of Presenting Officer
whether there can be any circumstances where principles of
natural justice can be held to be violated is the broad question
which needs to be answered in this case. We have noticed
above that the High Court found breach of principles of
natural justice in Enquiry Officer acting as the prosecutor
against the respondents. The Enquiry Officer who has to be
independent and not representative of the disciplinary
authority if starts acting in any other capacity and proceeds to
act in a manner as if he is interested in eliciting evidence to
punish an employee, the principle of bias comes into place."
13. On these grounds, Mr. Gadodia, learned counsel for the petitioner
submits that the petitioner, who has worked in the department for 30 long
years and only on the ground of one CBI enquiry and without considering
-8- W.P. (S) No. 6023 of 2018
the materials on the record, the impugned order has been passed and the
service of the petitioner has been terminated, which is against the law. The
termination of service of the petitioner is absolutely arbitrary, illegal and
violative of Articles 14 and 19 of the Constitution of India.
14. Per contra, Mr. Rishu Ranjan, learned counsel for the respondent-
State submits that pursuant to the order of the Hon'ble Patna High Court in
one of the writ petition, the CBI enquiry was directed to be conducted. The
CBI enquiry was conducted, wherein, report has been submitted and the
records of the petitioner were not found and, thereafter, the departmental
proceeding was initiated against the petitioner, in which, the case of the
petitioner was considered and, thereafter, the impugned order has been
passed. He further submits that the District School Inspectress, Ranchi was
not having the jurisdiction to appoint the petitioner. To buttress his
argument, he relied upon the judgment rendered in the case of
Madhuri Kumari v. The State of Bihar , reported in 2002 SCC Online
Jhar 636.
15. Paragraph 7 of the said judgment is quoted herein below:
"7. Mr. P.K. Prasad, learned counsel appearing for the
petitioners drawn my attention to regulation 868 of Bihar
Education Code in support of his submission that District
Inspectress of School is the appointing authority. From perusal
of the letter of appointment issued to the petitioners it
appears that the petitioners were sought to be appointed as
Matric Trained Teachers in the pay scale of Rs. 1200-1800.
Neither the Education Code nor any of the rules empowers
District Inspectress of school to be the appointing authority in
respect of appointment to the post of Matric Trained Teachers.
The appointment of the petitioners by the District Inspectress
of School is illegal and wholly without jurisdiction. I am,
therefore, of the opinion that the Director Secondary
Education rightly held that the services of the petitioners are
liable to be terminated. I do not find any reason to interfere
with the impugned order passed by the Director, Secondary
Education. No relief can be granted to the petitioners. These
writ petitions are, therefore, dismissed."
-9- W.P. (S) No. 6023 of 2018
16. Learned counsel for the respondent-State further relied upon the
judgment rendered in the case of Mewati Rani Singh v. The State of
Jharkhand & Ors. in W.P. (S) No. 7476 of 2011, which was delivered
on 12.08.2016. He submits that the case of the petitioner is fit to be
rejected in view of the judgment delivered by the coordinate Bench of this
Court in the said writ petition. He further submits that it is well settled
position that public employment must be made under parameters of Articles
14 and 16 of the Constitution of India.
17. Having heard learned counsel for the parties, the Court has gone
through the materials on the record. On perusal of the charge-sheet, it
transpires that four charges have been levelled against the petitioner,
wherein, first charge was that the petitioner got the appointment under
special arrangement; second charge was that the petitioner was appointed
without following due process of law; third charge was that in the CBI
enquiry, the name of the petitioner was found figured and fourth charge
was about illegal appointment. However, the impugned order has been
passed on the ground of non-clearance of roster with regard to reservation,
which is not the part of the charge. It is well settled position that a
delinquent is required to serve a particular charge on which the
departmental proceeding has been sought to be initiated. On perusal of the
Enquiry Report, it transpires that the Presenting Officer has submitted in
clear terms before the Enquiry Officer that the District School Inspectress
was having the power of employment of Matric Trained Teachers. The
Enquiry Officer has not dealt with this aspect of the matter i.e. the power
of the District School Inspectress. However, he submitted the Enquiry
Report on the ground of non-clearance of roster, which was not the subject
-10- W.P. (S) No. 6023 of 2018
matter either of the charge-sheet or the case of the Presenting Officer
before the Enquiry Officer. The Enquiry Officer has not accepted the
submission of the Presenting Officer with regard to power of the District
School Inspectress and held that the District School Inspectress was not the
competent authority to appoint the petitioner. On perusal of Rule 97(xi) of
the Bihar Education Code, which has been brought on record by way of
filing rejoinder to the supplementary counter affidavit by the petitioner, it
transpires that the power of District Inspectress of School is there for
appointment of Class-IV Government servants and of Teachers in the scale
of Rs.50-90 or below in schools under her control and to sanction pension
to all such cases. The Code might have been amended later on, which has
not been disclosed by the learned counsel for the respondent-State,
whereby, such power of the District Inspectress of School may not be there,
but it transpires from Rule 97(xi) that that power was there. The impugned
order has not been passed on the ground that the District Inspectress of
School was having no jurisdiction to appoint the petitioner. However, the
impugned order has been passed on the ground that the petitioner has not
been able to demonstrate as to whether roster clearance was there or not.
Thus, the impugned order has been passed without considering entire
aspects of the matter. The case of roster clearance has been considered in
the case of Madhuri Kumari (supra). The impugned order cannot be allowed
to be supplemented by way of filing counter affidavit and it has been
considered in the case of United Air Travel Services (supra).
18. The judgment relied by the learned counsel for the petitioner in the
case of Madhuri Kumari (supra), in paragraph 6 of the said judgment it has
been recorded that the District Inspectress of School was directed to make
-11- W.P. (S) No. 6023 of 2018
appointment for the period of three months and this paragraph of the
judgment is fortified in view of the appointment letter of the petitioner,
which is contained in Annexure-1 Series of the writ petition. Initially, the
petitioner was appointed for three months and subsequently it was
extended from time to time in light of paragraph 6 of the said judgment in
the case of Madhuri Kumari v. The State of Bihar, reported in 2002
SCC Online Jhar 636. Paragraph 6 of the said judgment is quoted herein
below:
"6. From perusal of the order passed by the Director,
Secondary Education it appears that although the Inspectress
of School was directed to make appointment for a limited
period of three months but ignoring the said direction steps
were taken for making regular appointment. Even for making
regular appointment advertisement either in the Newspaper or
by publication for inviting suitable candidates was not made
nor the roaster clearance with regard to the reservation was
followed. It appears that the Deputy Commissioner after
making necessary inspection and inquiry found that these
appointments were not made in accordance with the rules."
19. Thus, the judgment relied by the learned counsel for the petitioner in
the case of Madhuri Kumari (supra) is on the other hand helping the
petitioner and this aspect of the matter has not been examined by the
learned counsel for the respondent-State.
20. The judgment relied by the learned counsel for the respondent-State
in the case of Mewati Rani Singh (supra) is also distinguishable in the facts
and circumstances of the present case. In that case, the District Inspectress
of School has denied the appointment to the petitioner, which was later on
considered by the authority concerned. That aspect of the matter has been
dealt with by the coordinate Bench of this Court in paragraph 4 of that
judgment and in that case, the Regional Deputy Director of Education,
South Chhotanagpur Division, Ranchi has also made enquiry into the matter
-12- W.P. (S) No. 6023 of 2018
and found the appointment of that petitioner was illegal. These are the
facts, which are not present in the case in hand.
21. Thus, the two judgments relied by the learned counsel for the
respondent-State are not helping the respondents.
22. The petitioner was appointed after following due process of law. The
advertisement was there and thereafter the petitioner has been appointed.
In light of these discussions, a reference may be made to the judgment
rendered in the case of Buddhi Nath Chaudhary v. Abahi Kumar ,
reported in (2001) 3 SCC 328, whereby, the Hon'ble Supreme Court has
held that the appointment made long back pursuant to a selection need not
be disturbed. Paragraph 6 of the said judgment is quoted herein below:
"6. The selected candidates, who have been appointed, are
now in employment as Motor Vehicle Inspectors for over a
decade. Now that they have worked in such posts for a long
time, necessarily they would have acquired the requisite
experience. Lack of experience, if any, at the time of
recruitment is made good now. Therefore, the new exercise
ordered by the High Court will only lead to anomalous results.
Since we are disposing of these matters on equitable
consideration, the learned counsel for the contesting
respondents submitted that their cases for appointment
should also be considered. It is not clear whether there is any
vacancy for the post of Motor Vehicle Inspectors. If that is so,
unless any one or more of the selected candidates are
displaced, the cases of the contesting respondents cannot be
considered. We think that such adjustment is not feasible for
practical reasons. We have extended equitable considerations
to such selected candidates who have worked in the post for a
long period, but the contesting respondents do not come in
that class. The effect of our conclusion is that appointments
made long back pursuant to a selection need not be
disturbed. Such a view can be derived from several decisions
of this Court including the decisions in Ram Sarup v. State of
Haryana; District Collector & Chairman, Vizianagaram Social
Welfare Residential School Society v. M. Tripura Sundari
Deviand H.C. Puttaswamy v. Hon'ble Chief Justice of
Karnataka High Court, Bangalore. Therefore, we must let the
matters lie where they are."
23. As a cumulative effect of the above discussions, the impugned order
dated 01.10.2018 cannot sustain in the eyes of law. Accordingly, the
-13- W.P. (S) No. 6023 of 2018
impugned order dated 01.10.2018, contained in Annexure-11 of the writ
petition is quashed. In the peculiar facts and circumstances of the present
case, the petitioner shall be entitled for consequential benefits.
24. Accordingly, the writ petition stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
