Bhudhar Shaw vs The State Of Jharkhand
2021 Latest Caselaw 3407 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                W.P.(S) No.4870 of 2009
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1. Bhudhar Shaw

2. Mrinal Kanti Ghosh

3. Ashok Kumar Shit

4. Asish Kumar Ghosh

5. Sumit Kumar Singh

6. Sujal Kumar Bhol

7. Gunadhar Shit

8. Narayan Kumar Shit

9. Ashish Kumar Dutta ..... ....Petitioners

Versus

1. The State of Jharkhand.

2. The Secretary, Primary and Secondary Education, Human Resources Development Department, Govt. of Jharkhand, Ranchi.

3. The Director Primary Education, Human Resources Development Department, Government of Jharkhand, Ranchi.

4. The District Superintendent of Education, East Singhbhum.

5. The Deputy Commissioner, East Singhbhum.

6. Jharkhand Public Service Commission, through its Chairman, Ranchi. ..... ... Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner :Mr. Saurabh Shekhar, Adv. For the Res.State :Mr. J.F. Toppo, S.C.VII For the Res. JPSC :Mr. Sanjay Piprawall, Adv.

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Through:- Video Conferencing

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25/14.09.2021 Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioners for the following reliefs:-

(I) To quash the order passed by District

Superintendent of Education vide Memo

Nos.1810, 1811, 1812, 1813, 1814, 1815, 1816,

1818 and 1821 dated 14.09.2009 whereby the

petitioners have been dismissed from the service.

(II) To allow the petitioners to discharge their

duties on the post from which they have been

terminated.

3. The brief facts of the case is that the petitioners

(except petitioner No.6) had earlier moved before this Court

in W.P.(S) No.1311/04, which was dismissed vide order

dated 05.03.2004. Thereafter, they preferred L.P.A.

No.489/04, which was disposed of vide order dated

31.03.2005. Again the petitioners (except petitioner No.6

and 9) preferred writ application bearing W.P.(S)

No.2891/04 which was dismissed vide order dated

16.10.2008 and then they preferred L.P.A. No.429/08,

430/08 and 436/08, which they withdrew since the

petitioners were granted desired relief. Petitioner No.6 had

also moved earlier before this Court in W.P.(S) No.4116/05

which was disposed of vide order dated 11.08.2005.

4. During course of hearing on 09.04.2021,

following order was passed by this Court, which reads as

follows:-

"Heard learned counsel for the parties through V.C.

2. Mr. Saurav Shekhar, learned counsel for the petitioner draws attention of this court towards the show- cause notice dated 08.09.2009, wherein it has been stated that the petitioner has suppressed the fact of dismissal of the writ application being W.P.(S) No.5891 of 2005 with the department at the time of taking appointment. However, fact remains that when the writ application was dismissed against this petitioner the counsel for the State was present and even a copy of the appeal filed against the order of dismissal was served to the respondent Department, as such the allegation of suppression of fact with the department while taking appointment is non est in the eye of law.

Mr. Saurav Shekhar further submits that since after appointment he had withdrawn the appeal, so he is now remedyless because after withdrawal of L.P.A. now he cannot challenge the order passed in writ application.

3. Mr. Abhishek S. Sinha, learned counsel for the State submits that the issue is with regard to validity of certificate of the college from where the petitioner has taken training and as a matter of fact, this issue has already been decided by this Court that at the time of advertisement recognition of any institute by N.C.T.E is must and further any retrospective recognition will not improve the case. However, learned counsel for the respondent State fails to demonstrate by its show cause notice that any such charge is alleged against this petitioner.

It has been informed by learned counsel for the parties that as on today said institute is recognized by N.C.T.E.

4. Mr. Sanjay Piprawall, learned counsel for the J.P.S.C. submits that as on date the Institute is recognized by N.C.T.E., however, on the date of advertisement the said Institute was not recognized.

5. In this view of the matter, learned counsel for the State is directed to reply on the following issue:

(i) When the writ application, being W.P.(S) No. 5891 of 2005 was decided in the open court in presence of the counsel for the J.P.S.C., then how it can be said that dismissal of the writ application was not within their knowledge.

(ii) When the petitioner was given appointment then what is the fault in withdrawing the L.P.A. which was filed subsequent to the dismissal of the writ application.

(iii) Whether the principle of promissory estoppels will not operate against the State in the light of the fact that the entire fact of dismissal was within their knowledge and the respondents have given appointment to the petitioner subsequent to that.

(iv) whether the ground of affiliation etc. is sustainable in the eye of law for dismissal of the petitioner in the facts and circumstances of this case.

6. Put up this case on 05.05.2021".

5. Pursuant to the aforesaid order, a

supplementary counter affidavit dated 21.08.2021 has

been filed by the respondent-State. For brevity, relevant

paragraph Nos. 7 to 11 is quoted herein below:-

"7. That it is most humbly and respectfully submitted that the State cannot be held liable for the error and disobedience on the part of the then District Superintendent of Education East Singhbhum, for the State vigilantly took steps to identify the person responsible for the misconduct and proceeded against him as per the provisions of law. Moreover, it is a settled point of law that there cannot be said to be any irregularity or illegality if an error committed by an authority is corrected. This has been upheld in Sujata Patra V. Utkal University (2018 SCC Online Ori 418).

8. That with respect to the second question as to when the petitioner was given appointment then what is the fault in withdrawing the LPA which was filed subsequent

to the dismissal of the writ application, it is most humbly stated and submitted that the order dated 06.10.2008 passed in W.P.(S) No.5819 of 2005 was challenged and the petitioners preferred Letters Patent Appeals being L.P.A. Nos. 429/08, 430/08, 436/08. It is respectfully submitted herein that the petitioners had full knowledge that this Hon'ble Court had dismissed their writ petition.

Meanwhile, the petitioners were issue appointment letter dated 21.11.2008. On 08.09.2009, the petitioners were issued show cause notice as to why they withdrew their respective L.P.As in spite of having full knowledge that their appointment was wrong and that the State would take action against them. L.P.A No.429/08 and LPA No.430/08 were withdrawn on 10.09.2009 and L.P.A No.436/08 was withdrawn on 05.05.2009. Even, if the petitioners succeed this case, it would not be executable since, the basis of termination order still survives without challenged. The petitioners have challenged the final order without challenging the initial order.

9. That with respect to the third question as to whether the principle of promissory estoppels will not operate against the state even if the entire fact of dismissal was within their knowledge and the respondents gave appointment to the petitioner subsequent to such knowledge, it is most humbly stated and submitted that the principle of promissory estoppel with not operate against the state in the given circumstances and this is in consonance of the judgment of the Hon'ble Supreme Court of India in Anil Joshi & Ors. Vs. State of Himachal Pradesh 2015 (12) SCC 669.

10. That with respect to the fourth question as to whether the ground of affiliation etc. is substantial in the eye of law for dismissal of the petitioners in the facts and circumstances of this case, it is most humbly stated and submitted that it is settled proposition of the law that eligibility of the candidates has to be taken into consideration from the date of notification, and it is admitted fact that the petitioners were not possessing requisite qualification either at the time of publication of notification, or at the time of last date of application. As their degrees were not attained from the affiliated colleges and their colleges were affiliated at later stage with

retrospective effect. Hence it cannot be said that the petitioners held the requisite qualification in accordance with the relevant advertisement.

11. That it is most humbly stated and submitted that the show cause containing the charges levelled against the then erring District Superintendent of Education, East Singhhum namely Mr. Purnand Singh and the punitive action taken against him by the State vide Memo No.493 dated 07.07.2015 is being brought on record for consideration by this Hon'ble Court as directed."

6. In reply to the aforesaid averments made in the

supplementary counter affidavit, a rejoinder has also been

filed by the petitioners. Relevant paragraph Nos. 16 to 18

reads as under:-

16. That it is submitted that one Letters Patent Appeal was withdrawn on 5th May, 2009 being LPA NO.436 of 2008 in which Bhudhar Shaw & Sujal Kumar Bhol, being Petitioner No.1 and 6 were ................

17. That it is submitted that therefore it is clear that the entire case of the petitioners is on the issue that by the conduct of the State Officer, intentionally or unintentionally the petitioners have been precluded to challenge the directions passed in the writ court. This was done by issuance of letter of appointment, first, then they cannot turn their back on it, once they had made concession pursuance to which withdrawal of LPA was affected, disentitling the petitioners from pursuing the appeal and challenging the writ court order, which otherwise is their statutory and constitutional right, the appointment granted to the petitioner, under such circumstances should be confirmed.

18. That it is submitted that under the facts and circumstances of this case, there is nowhere mentioned in the counter affidavit that the petitioners were hand in gloves with erring officer issuance of letter of appointment, therefore for the negligence and error of State Officer, the petitioners should not be made to suffer, and the fact that

such erring officer has been punished for his conduct cannot be co-related with the present matter in scrutiny.

7. Having heard learned counsel for the parties and

after going through the relevant documents annexed with

the respective affidavits and the averments made therein;

especially the show-cause notice dated 08.09.2009 wherein

it has been stated that the petitioners have suppressed the

fact of dismissal of writ petitions with the department at

the time of their respective appointments; it appears from

the orders passed by this Court in earlier writ applications

clearly transpires that when the writ applications were

dismissed, the counsel for the State was duly present and

it was a well contested matter. Further, when the respective

appeals were preferred by the petitioners herein against the

writ court orders, the copy of memo of appeals (L.P.As) were

also served to the respondent-department; as such, the

allegation in the show-cause notice with regard to

suppression of fact that the petitioners have suppressed

the fact of dismissal of the writ application has no legs to

stand in the eye of law.

This postulation is further been corroborated by

the fact that the person involved in giving appointment has

been charge-sheeted subsequently and punitive action has

been taken against him vide order dated 07.07.2015

(Annexure-F to the supplementary counter affidavit).

8. The argument of learned counsel for the

petitioners that after appointment, since they withdrew the

L.P.As; as such, now they are remediless, inasmuch as,

after withdrawal of LPAs, petitioners cannot again

challenge the order passed in the writ applications; appears

to be genuine.

9. The contention of the learned counsel for the

State is also correct to the effect that the core issue

involved in this case with regard to validity of certificate of

the college from where the petitioners have taken training

has already been decided by this Court which says that at

the time of advertisement; recognition of any institute by

N.C.T.E is must and further any retrospective recognition

will not improve the case.

However, in the show-cause notice; no such

allegation/ground was mentioned; rather the show cause

notice pursuant to which the petitioners have been

terminated mainly incorporated the allegation of fraud and

suppression. The appointment letters to all the petitioners

were issued in November, 2008 and pursuant to that the

petitioners accordingly withdrew the respective L.P.As

pending before this Court.

10. So far as the allegation/ charge made in the

respective show cause notices that the petitioners have

suppressed the pendency of L.P.As is concerned; it has

already been held in the preceding paragraph that the

same is not established and hence not accepted by this

court, inasmuch as, one of the Officer has already been

punished for the same negligence and the respondent could

not brought on record any documents or a chit of paper to

corroborate that the petitioners were hand in gloves with

the concerned Officer who was finally punished due to

same cause of action.

11. Having regards to the facts of the case and the

contention of the petitioners that by the conduct of one

State Officer, either intentionally or negligently, these

petitioners have been precluded to challenge the order

passed in the Writ Court as they withdrew the LPAs

pursuant to their respective appointments; appears to be

genuine and legitimate.

This withdrawal of respective appeals was very

natural, inasmuch as, the petitioners were given

appointment and since the State has failed to prove that

the petitioners were hand in gloves with the said Officer

who has already been punished in this case; suppression of

fact of dismissal of respective writ applications cannot be

proved. Even otherwise, at the cost of repetition, when the

writ applications were dismissed against these petitioners;

the counsel for the State was present and even the copy of

respective L.P.As filed against the order of dismissal was

served upon the respondent department, as such allegation

of suppression of fact with the department while taking

appointment is held to be incorrect.

It has been informed by the learned counsel for

the parties that as on date the said institution is recognized

by N.C.T.E; however, this issue has already been decided

by the writ court which was essentially challenged by these

petitioners in L.P.As, which were subsequently withdrawn

pursuant to their respective appointment.

12. Thus, in the peculiar facts and circumstances of

this case when these petitioners withdrew the respective

L.P.As since they were given appointment and now they

have been precluded to challenge the order passed by the

Writ Court which has held that at the time of advertisement

recognition of any institute by N.C.T.E is must and there

cannot be any retrospective recognition; interest of justice

would be sufficed and also equity demands that the instant

writ application be disposed of with a liberty to these

petitioners to file review/modification application in the

respective L.P.As which were earlier withdrawn by them

pursuant to their respective appointments.

13. With the aforesaid observations, the instant writ

application stands disposed of.

(Deepak Roshan, J.) Fahim/-