Jharkhand High Court

Parmanand Mehta vs The State Of Jharkhand on 18 January, 2021

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 6494 of 2016

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1.Parmanand Mehta, son of Shyam bihari Mehta, resident of Village Goradih Toli, PO Gurwa Lesligang, PS Lesliganj, District Palamau

2.Norottam Kumar Mahato, son of late Atul Chandra Mahato, resident of Village Mohajuri, PO Manihari, PS Bindapathar, District Jamtara ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.Principal Secretary, Department of Primary/ Secondary Education, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi, Jharkhand

3.Director, Secondary Education, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi, Jharkhand

4.Principal Secretary, Department of Welfare, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi, Jharkhand

5.Director, Department of Welfare, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi, Jharkhand

6.District Welfare Officer, Palamau, PO and PS Palamau, District Palamau

7.District Welfare Officer, Giridih, PO and PS Giridih, Distict Giridih

8.Head Master, Scheduled Caste Residential High School, Kawwa Khoh, PO and PS Harihargank District, Palamau

9.Head Master, Scheduled Tribes Residential High School, Peertand, PO and PS Giridih, District Giridih ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. A. Allam, Sr. Advocate For Resp.-State :- Mr. O.P. Tiwary, G.P.-III

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9/18.01.2021 Heard Mr. A. Allam, the learned Senior counsel for the

petitioners and Mr. O.P. Tiwary, the learned counsel appearing on behalf

of 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.

3. The petitioners have preferred this writ petition for

quashing the order dated 04.10.2016 as contained in Annexure-6

whereby the petitioners' services have been terminated.

4. The petitioner no.1 whose date of birth is 01.11.1975 has

passed High School in the year 1991 with 2nd Division and passed in

Intermediate in the year 1994 with 1st Division. He also passed

Graduation in the year 1998 in 1st Division and after joining the service

he passed B.Ed by way of correspondence course from Lalit Narayan

Mithila University in the year 2011. The petitioner no.2 whose date of

birth is 03.01.1976 has passed the High School in the year 1991 with 1 st

Division, Intermediate with Science in the year 1994 with 1 st Division,

B.Sc in Maths, Physics and Chemistry in the year 1997 with 1 st Division

and B.Ed session 2002-03, result of which declared in the year 2005.

Pursuant to the advertisement of the year 2006 whereby the posts for

appointment of the teachers were advertised, the petitioners applied for

the appointment on the said posts on contractual basis against the fixed

sum of Rs.5,500/- per month. The petitioner no. 1 was having English as

subsidiary subject in Graduation, he applied for the post of English

Teacher and the petitioner no.2 was Science Gradutate, he applied

against the Math subject.The petitioners were called for interview and

they were interviewed 28.06.2006 and were declared successful for the

appointment. The petitioners were appointed pursuant to the letter of

the Department of Welfare Government of Jharkhand dated 20.09.2006.

The petitioner no.1 was posted as English Teacher in the S.C. Residential

High School, Palamau and the petitioner no.2 was posted as Maths

Teacher in S.T. Residential High School in the district of Giridih. The

petitioners' services were extended on 18.12.2007 for a further period of

one year and in the same and similar manner on 13.12.2008,

25.02.2010, 05.07.2011, 04.11.2011, 09.11.2012, 19.03.2014,

27.07.2014, 07.08.2015 and 21.03.2016 respectively and their salary has

been were extended with enhanced salary to the extent of Rs.29,907/-

per month which were paid in the year 2016. The case of the petitioners

for extension was also recommended by way of the Deputy Director,

Department of Welfare by way of Annexure-4 series. Their work was also

appreciated by way of Annexure-5 series by the higher authorities. By

way of Annexure-6 series the petitioners have been terminated.

Aggrieved with this, the petitioners have moved before this Court in the

writ petition.

5. Mr. A. Allam, the learned Senior counsel appearing on

behalf of the petitioners submits that by the impugned order the services

of the petitioner has been terminated without following the procedure of

law. He submits that in four lines order, the career of the ten years has

been brought to an end without issuing any show cause which is very

harsh. He submits that the petitioners are having good educational

qualification and were providing education to the students which is

apparent from the Annexure-4 series which are the recommendations for

exension of the services of the petitioners. He submits that now the State

Government has further came out with the advertisement for

appointment on contractual basis which is against the principle of law. He

submits that it is well setttled that an ad hod cannot be replaced by

another ad hoc. He submits that it was open to the Government of

Jharkhand to go for regular appointment in accordance with law. He

submits that the impugned order is arbitrary which is required to be

interfered by this Court under Article 226 of the Constitution of India. He

submits that since the petitioners have already worked for such a long

period, they were required to be regularized, whereas arbitrary and

malafide action has been taken against them.

6. Per contra, Mr. O.P. Tiwary, the learned counsel for the

respondent State submits that in view of the Sankalp no.2151 dated

15.07.2015 a decision was taken to operate and fill up the sanctioned

post of residential schools under Welfare Department on the basis of the

service procurement and accordingly the contractual services of the

petitioners and similar persons were not further required and as such the

impugned order dated 04.10.2016 was issued. Mr. Tiwary, the learned

counsel submits that now the teachers are being employed under the

procurement scheme of the State Government. He submits that the

petitioners were working on the contractual basis and in that view of the

matter, there is no illegality in the impugned order. Mr. Tiwary, the

learned counsel by way of referring to Annexure-A to the counter

affidavit submits that the reasons are also there in the Annexure-A to the

counter affidavit. He further submits that the regular appointment has

already been processed and that is why the case of the peitioners are fit

to be rejected. He submits that in view of the letter dated 29.02.2016 of

the Welfare Department whereby the appointment of the contractual

teachers have been replaced by service procurement scheme of the

Welfare Department and that is why the impugned order dated

04.10.2016 was issued by the Welfare Department. He submits that the

petitioners were not selected against the existing vacancies.

7. Mr. Allam, the learned Senior counsel for the petitioners

submits that the regular appointment has not been done as yet since last

four years. He submits that on one ground and another the requisition

made by the State Government are being returned back by the

Jharkhand Staff Selection Commission [JSSC] and till date no process for

regular appointment has been started.

8. In view of the above facts and considering the submissions

of the learned counsel for the parties, the Court has gone through the

materials on the record. On perusal of the impugned order contained in

Annexure-6 it transpires that in a very cryptic way, the same has been

passed whereby the petitioners have been discharged from the service.

No reason has been assigned in the impugned order for discharging the

services of the petitioners. Annexure-2 is the advertisement by which the

petitioners have been appointed on the post of teacher. Clause-3 of the

said advertisement clearly states that their work shall be examined after

two months of service and after satisfactory service only they will be

allowed to work further otherwise their services will be terminated. The

documents on the record suggest that the petitioners ' services have

been extended from time to time which has been noted above. There is

no doubt that the Court is very slow in interfering with any contractual

appointment but the Court has to look into the impugned order which is

arbitrary and if the Court comes to the conclusion that the impugned

order is arbitrary, the Court can interfere with the impugned order under

Article 226 of the Constitution of India. A reference in this regard may

be made to the case of "Kumari Srilekha Vidyarthi and Others v. State of

Uttar Pradesh and Others" reported in (1991) 1 SCC 212. Paragraph

nos.34, 36, 37 and 48 of the said judgment are quoted hereunder:

34. In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case.

36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a

manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always.

37. Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:

"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

(See Dicey, Law of the Constitution,

10th edn., Introduction, cx). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlich, 'when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered'.

It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it is classic terms in the Case of John Wilkes, 'means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful'."

48. In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decisions in Dwarkadas Marfatia and Sons and Mahabir Auto Stores also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non-

arbitrariness,           being        a           necessary
concomitant        of    the   rule     of    law,    it    is

imperative that all actions of every public

functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power.

9. The argument of Mr. Tiwary, the learned counsel appearing

on behalf of the respondent State by way of referring to the Annexure-A

to the counter affidavit and also the procurement scheme etc. is not

accepted by the Court in view of the fact that it is well settled that the

reasons assigned in the impugned order cannot be allowed supplemented

by way of filing counter affidavit. A reference in this regard may be made

in case of "Mahendra Singh Gill and Another v. Chief Election

Commissioner, New Delhi " reported in (1978) 1 SCC 405. Paragraph

no.8 of the said judgment is quoted hereunder ;

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:

"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."