The State Of Jharkhand vs Sharafat Ali
2022 Latest Caselaw 3377 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      L.P.A. No.445 of 2019
                                ----
1.    The State of Jharkhand.
2.    The Principal Chief Conservator of Forest, Government of
      Jharkhand, Van Bhavan, P.O. & P.S. - Doranda, Town
      and District - Ranchi.
3.    The Secretary, Forest and Environment, Government of
      Jharkhand, having office at Nepal House, P.O. & P.S. -
      Doranda, Town and District - Ranchi.
                           ...     ...    Respondents/Appellants
                             Versus
1.  Sharafat Ali, son of Late Eqbal Hussain, resident of Mani
    Tola, House No. 368, Gaush Nagar, P.O. & P.S. Doranda,
    Town and District - Ranchi.
                         ...      ... Writ Petitioner/Respondent
2. State of Bihar.       ...      ... Respondent
                             -------
CORAM :          HON'BLE THE CHIEF JUSTICE
          HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                              ------
For the Appellants              : Mr. Piyush Chitresh, A.C. to A.G.
For the Respondent No.1         : Mr. Saurav Arun, Advocate
For the Respondent No.2         : Mr. Mr. S.P.Roy, G.A. (Bihar)
                            --------
C.A.V. on 22.02.2022            Pronounced on 25.08.2022

Per Sujit Narayan Prasad, J.

With consent of the parties, hearing of the matter was

done through video conferencing and there was no complaint

whatsoever regarding audio and visual quality.

I.A. No. 6200 of 2019

This interlocutory application has been preferred under

Section 5 of the Limitation Act for condoning the delay of 175

days in preferring this Letters Patent Appeal.

2. Heard learned counsel for the parties.

3. Having regard to the averments made in the application

and submissions made on behalf of the appellants, we are of

the view that the appellants were prevented from sufficient

cause in filing the appeal within the period of limitation. As

such, the delay of 175 days in preferring the appeal is hereby

condoned.

I.A. No. 6200 of 2019 stands allowed.

L.P.A. No.445 of 2019

4. The instant intra-court appeal, preferred by the State of

Jharkhand under Clause 10 of the Letters Patent, is directed

against the order/judgment dated 14.12.2018 passed by

learned Single Judge of this Court in W.P.(S) No.4477 of 2011

by which, while allowing the writ petition, the order as

contained in Memo dated 08.08.2012 has been quashed and

set aside and the respondents have been directed to reconsider

the petitioner's claim for his promotion as also for grant of the

pay scale applicable to his post in the Circle Cadre and to

release all such payments and the arrears thereof in the light of

the decision rendered in W.P.(S) No. 161 of 2002. The entire

exercise is directed to be completed within a period of four

months from the date of receipt/production of a copy of the

order.

5. Brief facts of the case as per the pleadings made in the

writ proceeding, which are required to be enumerated herein,

read as under :-

The writ petitioner, although was recommended for

appointment in the pay of Rs.240-396/- but he was appointed

in the pay scale of Rs.220-315/-. The writ petitioner made

representation before the Principal Chief Conservator of Forest,

Jharkhand on 27.12.2002 for consideration of his case in the

scale of Rs.240-396/- with effect from 13.09.1980. The

Principal Chief Conservator of Forest forwarded his

representation to the Chief Conservator of Forest-cum-

Chairman, (High Level Coordinating Committee) vide his letter

dated 13.05.2003 for deciding his real position. Thereafter, a

committee was constituted by the Chief Conservator of Forest

on 14.10.2003 for consideration of writ petitioner's

representation under the Chairmanship of Regional Chief

conservator of Forests, Ranchi. The committee, in its meeting

dated 17.04.2005, considered the case of the writ petitioner

and recommended for grant of pay scale of Rs.240-396/- to the

writ petitioner, as would appear from letter dated 25.06.2006

(annexure-5 to the writ petition). But the aforesaid benefit of

the pay scale of Rs. 240-396/- was not granted in favour of the

writ petitioner even in spite of the aforesaid recommendation

made by the committee.

The writ petitioner raised objection. His objection was

considered and was rejected vide order dated 08.08.2012 on the

ground that the writ petitioner was appointed as Lower Division

Clerk on 13.09.1980 on his own wish and it is only after lapse

of 22 years objection application has been filed questioning his

appointment in the pay scale of Rs.220-315/- and hence, on

the ground of delay, the aforesaid application was rejected.

The writ petitioner, being aggrieved with the order dated

08.08.2012, approached this Court by invoking the jurisdiction

conferred to this Court under Article 226 of the Constitution of

India raising the plea that actually his case was recommended

for appointment in the pay scale of Rs.240-396/- but without

seeking any willingness/option, he was appointed in the pay

scale of Rs.220-315/-.

The further plea was taken that the Department itself

considered the appointment of the writ petitioner in the pay

scale of Rs.220-315/- to be incorrect and, therefore, on the

representation of the writ petitioner, a committee was

constituted on 14.10.2003, wherein recommendation was made

to take the services of the writ petitioner in the pay scale of

Rs.240-396/-.

The writ petitioner also took plea that the aforesaid

committee was constituted on 14.10.2003 and due

recommendation to that effect was made by the committee, as

such, there was no reason for the respondent authorities in

passing the impugned order dated 08.08.2012 in rejecting such

application on the ground of delay.

The learned Single Judge has considered the submission

of the writ petitioner as also the respondent and found the writ

petition fit to be allowed on the following grounds :-

(i) The respondents authority suo motu cannot change the scale of the petitioner and force him to get

appointment in the scale of Rs.220-315/- and the respondents authority are duty bound to consider the fact that as per the merit list, the petitioner's case ought to have been considered in the scale of Rs.240- 396/-.

(ii) In similar circumstances, being aggrieved by the act of the respondents, one Arti Mitra Nee Das has moved before this Court in W.P. (S) No. 161 of 2002 and this Court vide order dated 21.04.2009 (Annexure-

15) has quashed the order of the respondents and consequently, vide order dated 10.12.2009 (Annexure- 15/1), the respondents have restored the position of the petitioner, therein and the case of petitioner ought to be considered afresh at par with petitioner in W.P. (S) No. 161 of 2002.

(iii) It appears that the respondents have denied the stand taken by the petitioner on the ground that though, the petitioner was appointed in the pay scale of Rs.220-315/-, but since the scale available to him to the post of Lower Division Clerk was the same which was available to the LDC of the Divisional Cadre, therefore the petitioner cannot raise any grievance of different cadres. However, this stand of the respondents does not stand to reasons tempered with law.

(iv) Petitioner has taken reasonable, plausible and cogent ground for challenging the impugned order vide memo dated 08.08.2012, as contained in Annexure-13 to this application by which the claim of the petitioner for seniority and pay scale has been rejected on the legally untenable grounds, not germane to the case in hand.

On the aforesaid grounds, the writ petition was allowed by

quashing and setting aside the Memo dated 08.08.2012.

The State of Jharkhand, being aggrieved with the order

passed by the learned Single Judge, is before this Court by

filing intra-court appeal against the impugned order.

6. Mr. Piyush Chitresh, learned A.C. to A.G. appearing for

the appellants, submits that the learned Single Judge has failed

to appreciate that once the appointment which was made in

favour of the writ petitioner on 13.09.1980, which the writ

petitioner had accepted without any objection even though he

was appointed in the lesser pay scale i.e. Rs.220-315/-. As

such, once accepted the offer of appointment, it was not

available to the writ petitioner to question the action which

arose on 13.09.1980 by making application on 27.12.2002.

The plea has been taken by the State appellant that the

appointment which has been accepted by the writ petitioner

fairly for a period of about 22 years, cannot be allowed to be

agitated after lapse of such delay. But, the learned Single Judge

has not appreciated the aforesaid aspect of the matter and

merely considered the fact that while the writ petitioner was

selected for appointment in the pay scale of Rs.240-396/-, the

State under which authority, appointed the writ petitioner in

the lesser pay scale i.e. Rs. 220-315/- which was without any

option given by the writ petitioner.

Therefore, the order passed by the learned Single Judge

suffers from patent illegality and hence, the same may be

quashed and set aside.

7. Mr. Saurav Arun, learned counsel appearing for the

respondent-writ petitioner, has submitted that it is not

available to the State Government to take the plea of inordinate

delay counting it from the date of appointment i.e., from

13.09.1980 when the writ petitioner was appointed as Routine

Clerk in the pay scale of Rs.220-315/-, since it is the State

respondent who constituted a committee, meeting of which was

held on 17.04.2005, which recommended for grant of pay scale

of Rs.240-396/- in favour of the writ petitioner, as would

appear from Annexure-5 appended to the writ petition, obtained

under Right to Information, Act.

It has been submitted that from perusal of letter dated

25.06.2006, it would be evident that the respondent authorities

have accepted the fact that a wrong has been committed in

granting the lesser pay scale of Rs.220-315/- in favour of the

writ petitioner instead of Rs.240-396/-.

Further submission has been made that in the similar

facts and circumstances of the case, with respect to one Arati

Mitra Nee Das, in whose case also the lesser pay scale was

granted, had moved to this Court by filing writ petition being

W.P.(S) No.161 of 2002 and this Court vide order dated

21.04.2009 (Annexure-15 to the writ petition) quashed the

order and consequently, vide order dated 10.12.2009, the

respondents have restored the position of the petitioner therein

and, therefore, the case of the writ petitioner is also fit to be

considered in the light of the order passed by this Court in

W.P.(S) No. 161 of 2002.

8. We have heard the learned counsel for the parties,

perused the documents available on record as also the findings

recorded by the learned Single Judge in the impugned order.

9. This Court deems it fit and proper to refer certain

undisputed facts as per the pleading made on behalf of the

parties before looking into the legality and propriety of the

impugned order.

Admittedly, the writ petitioner was appointed provisionally

sometime in the year 1979 and was working under the

Department of the respondents and while working as such, in

the year 1980, a departmental examination was conducted. The

writ petitioner participated therein and after considering him

eligible and fit, he was selected for the post of Circle Lower

Division Clerk in the pay scale of Rs.240-396/-. The writ

petitioner was ranked 11 in the merit list of Circle Lower

Division Clerk which was prepared after taking the interview by

the selection committee so constituted for the purpose and a

list of 15 persons was published as per the roster.

Six candidates were appointed in the Social Engineering

Circle, Ranchi out of 15 selected candidates as per the roster.

The candidates whose names stood at Sl. Nos. 7 to 10 in the

merit list, were kept reserved in the panel.

One candidate belonging to the general category and one

candidate belonging to Scheduled Tribe were appointed on

request being made from the South Circle, Ranchi (now

Chaibasa) and accordingly, the name of the writ petitioner,

which stood at Sl. No.11 in the merit list and one Smt. Farida

Lakra, whose name stood at Sl. No.13, were also recommended

and sent for the post of Lower Division Circle Assistant vide

letter dated 24.07.1980 but the writ petitioner was not

appointed in the South Circle, Ranchi.

The writ petitioner, however, was issued a letter dated

10.03.1980 asking him to join in the pay scale of Rs.220-315/-,

even though the writ petitioner was selected after following all

due procedure in the pay scale of Rs.240-396/-i.e., to the post

of Lower Division Assistant, but he was forced to get

appointment as Lower Division Clerk having the lesser pay

scale of Rs.220-315/-.

The writ petitioner, having no option, accepted the offer of

appointment dated 13.09.1980 in the pay scale of Rs.220-315/-

even though he was recommended for the post of Lower

Division Assistant having the pay scale of Rs.240-396/-.

It also transpires from the record that one Arvind Kumar

whose merit position was at Sl. No.12, i.e., after the writ

petitioner who was at Sl. No.11 in the merit list, was given

appointment in the pay scale of Rs.240-396/- to the post of

Lower Division Assistant. Thus, the writ petitioner has made

out a case of hostile discrimination on the ground that the

person whose name was below in the merit list, i.e., Arvind

Kumar, who was at Sl. No.12, was appointed in the pay scale of

Rs.240-396/- leaving apart the case of the writ petitioner who

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was at Sl. No.11 in the merit list.

The writ petitioner made due representation on

27.12.2002 for consideration of his case in the pay scale of

Rs.240-396/- to be granted with effect from 13.09.1980 stating

therein the entire fact and the reason questioning the

discrimination.

The respondent authorities, after getting such

representation, constituted a committee meeting of which was

convened on 17.04.2005 in which the case of the writ petitioner

was recommended for grant of pay scale of Rs.240-396/-, as

would appear from Annexure-5 dated 25.06.2006 appended to

the writ petition. It appears from the minutes of proceeding that

the respondent authorities have admitted that fault was

committed and the writ petitioner was wrongly given the pay

scale of Rs.220-315/- and, as such, due recommendation was

made for its rectification by granting him the pay scale of

Rs.240-396/- but no action was taken by the authorities after

the aforesaid recommendation.

It further appears from letter dated 21.02.2009, as under

Annexure-6 to the writ petition, that an enquiry was conducted

and in consequence thereof a report was submitted wherein

also the committee has reported that the wrong has been

committed by granting lesser pay scale in favour of the writ

petitioner.

The respondent authorities instead of passing a positive

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direction in favour of the writ petitioner, rejected his claim vide

order dated 08.08.2012. Thereafter, one interlocutory

application being I.A. No.3436 of 2012 was filed seeking

permission to amend the prayer made in the original writ

petition for challenging the order dated 08.08.2012 also. The

aforesaid interlocutory application was allowed vide order dated

18.12.2012 directing the petitioner to file amended writ

petition. Thereafter, amended writ petition was filed.

Counter affidavit was filed on behalf of the respondents

where the plea was taken that once the writ petitioner accepted

the appointment which was granted in his favour on

13.09.1980, he cannot be allowed to reopen the matter after

lapse of fairly a long period.

The State raised serious objection in reopening the issue

at the behest of the writ petitioner by filing writ petition, which

was already settled sometime in the year 1980.

The writ court appreciated the rival submissions and

considered the fact that due recommendation was made

wherein the authority itself has accepted that wrong has been

committed as also has taken into consideration the order

passed with respect to another employee namely, Arati Mitra

Nee Das in W.P.(S) No.161 of 2002 and quashed the order of

the respondents.

10. This Court, on the basis of the submission which was

recorded hereinabove, is required to answer, in the given facts

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of the case -

Whether it will be treated to be raising an issue after a

long period when the State authorities itself constituted a

committee, which has submitted its report on 25.06.2006 and

the communication dated 21.02.2009 issued under the

signature of the Regional Chief Conservator of Forest, Ranchi

addressed to the Principal Chief Conservator of Forest,

Personnel and Human Resource Development, Jharkhand,

Ranchi as under Annexure-6 to the writ petition?

The second question required to be answered is -

Whether on the given facts of the case the writ petitioner

be ceased to raise the issue of his wrong placement in the pay

scale as on the date of appointment without his option, is

contrary to his selection based upon the due process?

11. It is not in dispute as has been referred hereinabove, the

writ petitioner while serving in the Department, participated in

the departmental examination for appointment on the post of

Lower Division Assistant. The Selection Committee

recommended the names of 15 persons by preparing a panel,

merit-wise. The name of the writ petitioner reflects in the said

merit list at Sl. No.11. It is not in dispute that the post of Lower

Division Assistant is having the pay scale of Rs.240-396/-.

It is also not in dispute since specific stand has been

taken by the writ petitioner in the writ petition but no rebuttal

reply has been given in the counter affidavit pertaining to one

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Arvind Kumar, whose name stood at Sl. No.12 of the merit list,

was appointed in the pay scale of Rs.240-396/- while the name

of the writ petitioner was at Sl No.11 and he was appointed in

the pay scale of Rs.220-315/-. However, explanation has been

furnished by the State that due to observance of the roster

system, the person whose name was at Sl. No.12 was appointed

leaving apart the writ petitioner who happens to be under

general category.

It requires to refer herein that the State authority has not

brought on record any document showing the roster system

prevalent during the relevant time. It is also not available in the

pleading made on behalf of the State that which roster system

they have followed. However, the plea has been taken that the

writ petitioner, on its own, had accepted the offer of

appointment in the lesser pay scale.

12. This Court, on the basis of such submission of accepting

the offer of appointment, is having no doubt that if any option

is being sought for from one or the other public servant for

acceptance of offer of appointment and if such public servant is

offering its option for appointment to such post, once option is

exercised, it is not available for such employee to raise

objection contrary to such option.

This Court, considering the fact that the State is taking

the plea about acceptance of offer of appointment, directed the

State to produce document/application showing the options

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offered to the writ petitioner for acceptance for the post of

Lower Division Clerk which is having lesser pay scale, as would

appear from order dated 16.08.2021.

Although, affidavits have been filed stating therein that the

writ petitioner has given option, as would appear from affidavit

dated 06.10.2021, but when the concerned authority was

directed to bring on record letter of willingness, no such

document was produced which led this Court to call upon the

Principal Chief Conservator of Forest to participate in the court

proceeding on 23.12.2021, as would appear from order dated

14.12.2021.

The Principal Chief Conservator of Forest has shown his

ignorance about issuance of such letter and subsequent to the

appearance, an affidavit has been filed on 24.12.2021 wherein

it has specifically been stated that no such document showing

option of acceptance of appointment in lesser pay scale made

by the petitioner, is available on record. The relevant paragraph

is quoted hereinbelow :-

"2. That on the basis of the letter dated 24.7.1980 the statement was made that options were invited and on that basis they were appointed as L.D.C. and the said letter has been enclosed as Annexure - A 14 series at page 75 to 77 to the supplementary affidavit filed on 1.10.2021. However, the option applications could not be found in the records/file."

Therefore, it is the admitted position that the writ

petitioner has not exercised its option for acceptance of lesser

pay scale. Before the writ court as also before this Court

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argument has been made about the option exercised by the writ

petitioner for accepting the pay scale and that once the writ

petitioner has exercised his option, the writ petitioner ceases to

raise this issue.

On the basis of the affidavit filed on behalf of the Principal

Chief Conservator of Forest, which is quoted and referred

hereinabove, wherein the Department has failed to produce any

application showing option offered by the writ petitioner, this

Court, therefore, is of the considered view that the argument

about exercising option by the writ petitioner for acceptance of

lesser pay scale is fit to be rejected on the basis of non-

availability of any such application exercising option.

Accordingly rejected.

13. The other issue which was raised by the State appellant

that once the offer of appointment was accepted on 13.09.1980,

the writ petitioner cannot be allowed to raise the issue after

long lapse of period.

The State appellant has considered the cause of action

from the date of appointment i.e., 13.09.1980, but the State

authorities cannot be allowed to take the date of cause of action

from 13.09.1980, for the reason that when the writ petitioner

made representation for consideration of his case, a committee

was constituted, meeting of which was convened on

17.04.2005, wherein the committee has given specific

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recommendation in favour of the writ petitioner referring

therein that the writ petitioner ought to have been placed in the

pay scale of Rs.240-396/- but due to wrong committed by the

concerned authority, he has been placed in the pay scale of

Rs.220-315/-, therefore, recommendation has been made to

place him in the pay scale of Rs.240-396/-.

The committee has made such recommendation on the

basis of the fact that one Shri Arvind Kumar, who was below

the writ petitioner in the merit list, has been granted the pay

scale of Rs.240-396/- and therefore, the writ petitioner is also

entitled to get the pay scale of Rs.240-396/-, which would be

apparent from minutes of meeting dated 17.04.2005, annexed

as Annexure-5 to the writ petition.

Subsequent thereto, the Regional Chief Conservator of

Forest has also issued a letter being letter No. 142 dated

21.02.2009 (Annexure-6 to the writ petition) wherein also

recommendation has been made by him to grant the pay scale

of Rs.240-396/-, in favour of the writ petitioner, on the ground

that the person below the writ petitioner since was granted

such pay scale and as such, the writ petitioner is also entitled

to get the same scale. It further appears from the said

communication that the Regional Chief Conservator of Forest

has approved the recommendation made by the authorities as

was recommended vide minutes of meeting dated 17.04.2005.

Therefore, the consideration of the case of the writ petitioner

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even after his appointment on 13.09.1980 was made on

17.04.2005, as per Annexure-5 and thereafter on 21.02.2009

as per Annexure-6.

It further requires to refer herein that the State authorities

have filed counter affidavit but no rebuttal reply has been given

with respect to Annexure-5 and Annexure-6.

Therefore, the issue of cause of action to be counted from

the date of appointment i.e., from 13.09.1980, as has been

pleaded on behalf of the State appellant, is not fit to be

accepted in view of the fact that the authorities constituted a

committee much after the date of appointment i.e., on

14.10.2003, as per Annuxure-5 and Annexure-6 respectively

appended to the writ petition, according to our considered view,

once the State authorities have given a consideration on the

case of the writ petitioner, which was lastly given on

21.02.2009, the cause of action will be treated to have counted

from 21.02.2009 and not from 13.09.1980.

14. Since the writ petition has been filed in the year 2011,

therefore, this Court is not hesitant in holding that the writ

petition is not barred by the principle of delay and laches.

15. This Court, on the basis of the discussions made

hereinabove and after going through the order passed by the

learned Single Judge, is of the view that the order passed by the

learned Single Judge requires no interference due to the

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following reasons :-

Admittedly, the writ petitioner was selected in the pay

scale of Rs.240-396/- but ignoring his seniority, he was

appointed in the pay scale of Rs.220-315/- without seeking his

option, therefore, if the learned Single Judge has reached to the

conclusion that the very appointment made in favour of the writ

petitioner in lesser pay scale contrary to his merit position is

not justified, which cannot be said to suffer from an error.

The appointment of the writ petitioner in the lesser pay

scale of Rs.220-315/- instead of Rs.240-396/- since was made

without seeking any option from the writ petitioner, therefore,

such appointment will be nothing but contrary to the process of

selection of the writ petitioner and it is settled that if any

illegality has been committed which is contrary to the

process/regulation, the same has to be rectified the moment it

comes to the notice.

In the instant case, admittedly the writ petitioner was

selected in the pay scale of Rs.240-396/- but due to some

extraneous reason, he was appointed in the pay scale of

Rs.220-315/- ignoring his position in the seniority list while the

person below him in the merit list was granted the pay scale of

Rs.240-396/-. Therefore, the offer of appointment made in

favour of the writ petitioner in the pay scale of Rs.220-315/- is

nothing but contrary to the decision of the selection committee

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which made decision to appoint the writ petitioner in the pay

scale of Rs.240-396/-. Exactly the same view has been taken by

the committee in its meeting dated 17.04.2005, as appended

Annexure-5 to the writ petition.

The learned Single Judge has also considered the order

passed by this Court in the case of one Arti Mitra Nee Das in

whose case also similar discrepancy was there, in consequence

of the same, she had preferred a writ petition being W.P.(S)

No.161 of 2002. The Co-ordinate learned Single Judge vide

order dated 21.04.2009, has quashed the order by which the

concerned writ petitioner was given the lesser pay scale by

restoring her position.

The learned Single Judge, after considering the aforesaid

order and taking it into the similar facts which is involved in

this case, has also found one of the reasons to allow the writ

petition, which according to our considered view, cannot be

said to be an error, for the reason, if similar treatment has been

given in favour of one of the co-employee, the same cannot be

denied to the other similarly situated employee on the principle

of position of law settled by the Hon'ble Apex Court in State of

Uttar Pradesh and Others v. Arvind Kumar Srivastava and

Others [(2015) 1 SCC 347], wherein it has been laid down that

all similarly situated persons should be treated similarly and

merely because other similarly situated persons did not

approach the Court earlier, they are not to be treated

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differently. The relevant paragraph is of the aforesaid judgment

is quoted hereunder for ready reference :-

"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."

16. On the basis of the reason as aforesaid and the

discussions made hereinabove, according to our considered

view, the order passed by the learned Single Judge cannot be

faulted with.

17. Accordingly, the instant appeal fails and is dismissed.

18. Pending interlocutory applications also stand disposed of.

(Dr. Ravi Ranjan, C.J.) I agree

(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.)

Birendra/ A.F.R.