Suresh Bhandri vs The State Of Jharkhand
2021 Latest Caselaw 3290 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S) No. 567 of 2011
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   Suresh Bhandri                            ..... Petitioner
                               Versus
      1. The State of Jharkhand

2. The Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Jharkhand

3. The Director, AYUSH, Govt. of Jharkhand

4. The Deputy Commissioner, Dumka

5. The District AYUSH Medical Officer, Dumka ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Deepak Kr. Prasad, Advocate For the Respondents : Ms. Vandana Singh, Sr. S.C.III

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16/07.09.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner for quashing the order as contained in Memo No. 130(3) dated 28.6.2010 (Annexure 12), whereby the Respondent No. 2 has rejected the representation of the petitioner with regards to his reinstatement.

3. During course of hearing on 19th July, 2021; following Order was passed by this Court:

"14/Dated: 19th July, 2021 Heard through V.C.

2. Mr. Deepak Kr. Pd., learned counsel for the

petitioner submits that though he has worked for more than 21

years, but his service has been terminated. The petitioner has also

moved before this Court earlier which was disposed of by this

Court. Thereafter, the petitioner challenged the aforesaid order

passed in W.P.(S) No. 3836 of 2003 in L.P.A. No. 130 of 2007;

wherein this Court referred the case of the petitioner to the

respondent for consideration by giving observation that the

petitioner worked for about 20 years and was also granted junior

selection grade in 1992 after completion of 10 years as time bound

promotion, as such the impugned order of termination is bad in

law.

3. Mrs. Vandana Singh, learned counsel for the

respondent-State draws attention of this Court towards the

impugned order and submits that after the order passed by this

Court in L.P.A. No. 130 of 2007 an enquiry was conducted

wherein it was found that the name of the petitioner was not sent

through Employment Exchange and his appointment was illegal

and even the respondent had asked the concerned authority who

has illegally appointed this petitioner. She further seeks time to file

the enquiry report which will transpire this fact.

4. In view of the aforesaid fact the respondent-State

is directed to file an affidavit annexing the enquiry report and also

as to whether the case of the petitioner along with other two

persons namely, Shri Shambhu Kumar and Sri Narayan Paswan

are similar or not. As both these persons were also terminated

along with this petitioner and finally their writ applications was

allowed and the respondent-State as accepted the order as now

they are working.

5. Put up this case on 23.08.2021 for further

hearing.

4. Pursuant to the order dated 19.07.2021, a supplementary counter affidavit has been filed on behalf of the respondent State wherein they have stated that similarly situated employees, namely, Sri Narayan Paswan and Shri Shambhu Kr. has been reinstated; however, without any salary for the period he was not in service and the same was done due to the order passed by this court.

For brevity, Paragraph 12 and 13 of the supplementary counter affidavit is quoted hereinbelow:

"12. That, as to the appointment of Sri Narayan Paswan, it is humbly stated that the Hon'ble Court vide judgment dated 4/9/2008 passed in LPA No. 267/2007 had

set aside his termination order and reinstating him in service but without salary for the period he was not in service.

13. That, as to the appointment of Sri Sambhu Kumar Gupta, it is humbly stated that this Hon'ble High Court vide its judgment dated 23.10.2008 passed in W.P.(S) No. 5479 of 2003 had directed for his reinstatement into service but without salary for the period he was not in service."

5. Pursuant to this affidavit, learned counsel for the petitioner confines his argument only on the question of parity and submits that the respondent No.2 may be directed to reinstate the petitioner considering his case on the ground of parity since the law is well settled that there should not be any discrimination.

6. Ms. Vandana Singh, learned counsel for the respondents submits that altogether nineteen persons were terminated. Further, a proper guideline with respect to appointment was not followed in the case of this petitioner. She further submits that the Deputy Superintendent of Zila Deshi Chikitsa, Dumka has committed some fraud but since he has died; as such, action could not be taken against him.

In nutshell, she submits that the appointment of the petitioner was not in accordance with the procedure of the government; as such there is no error in the impugned order of rejection. However, she could not dispute the fact that two such employees were reinstated pursuant to the order of this Court.

7. Having heard learned counsel for the parties and in view of the fact that learned counsel for the petitioner has confined his entire argument only on the question of parity and in view of the specific averments made in the reply/rejoinder dated 03.9.2021 to the supplementary counter affidavit; this court is of the firm opinion that if similarly situated employees have been given appointment, there is no

reason why this petitioner shall not be reinstated Reference in this regard may be given to the decision of the Hon'ble Apex Court in the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors. reported in (2015) 1 SCC 347 wherein at Paragraph 22.1 it has been held as under:

"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently."

Thus, even the Hon'ble Apex Court has repeatedly held that when a particular set of employees were given relief then other identically situated persons need to be treated identically.

8. In view of the aforesaid discussion, the instant writ application, is hereby, disposed of by quashing the order as contained in Memo No. 130(3) dated 28.6.2010.

The matter is remitted back to the Respondent No.2 to pass a fresh order only on the question of parity. The petitioner is directed to file a detailed representation before Respondent No.2 along with necessary documents raising his claim.

If any such representation is filed; the Respondent No. 2 shall look into the matter and pass a fresh order in the light of the aforesaid finding within a period of 12 weeks from the date of receipt of such representation.

It goes without saying that if the case of the petitioner is identical with that of the aforesaid other employees who were subsequently appointed/ reinstated; then reinstatement on the same condition shall also be given to this petitioner.

9. With the aforesaid terms the instant writ application stands partly allowed.

(Deepak Roshan, J.) sm/