Raj Choudhary (Constable No. 05 ... vs The State Of Jharkhand
2022 Latest Caselaw 2847 Jhar

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                      L.P.A. No. 398 of 2019
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Raj Choudhary (Constable No. 05 dismissed), Ranchi ......Appellant Versus

1. The State of Jharkhand

2. The Additional Chief Secretary, Department of Home, Govt. of Jharkhand, Ranchi

3. The Director General of Police, Jharkhand

4. The Additional Director General of Police (Rail), Rani Kothi District-Ranchi

5. The Inspector General of Police (Rail), Jharkhand, Ranchi

6. The Deputy Inspector General of Police (Rail), Station Road, Near Yogda Math, District-Ranchi ......Respondents

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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

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For the Appellant : M/s. Ritu Kumar, Samavesh Bhanj Deo, Shatakshi, Advocates For the Respondents : Mr. Piyush Chitresh, A.C to Advocate General

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08 /26.07.2022 Heard learned counsel for the parties.

2. The impugned judgment rendered by learned Single Judge reads as under:

"In this writ petition, the petitioner has prayed for quashing the order dated 3.11.2017, issued by the Deputy Inspector General of Police (Rail), by which, the petitioner has been dismissed from service.

2. The main ground taken in the writ petition is that without following the procedure of law and without giving opportunity of hearing to the petitioner, his services has been terminated.

3. After hearing the parties and after going through the record, I find that the services of the petitioner and two others, namely, Sumant Kumar and Ashok Kumar were terminated earlier on 26.2.2002. Challenging the said order of the termination, petitioner and others preferred a writ petition being WPS No. 4356 of 2002, which was heard and allowed by a Co-ordinate Bench of this Court on 22nd July, 2003. After the aforesaid order, a Letters Patent Appeal being LPA No. 699 of 2003 was filed by the State. During pendency of the said LPA, because of the order passed by the Single Judge, the petitioner was reinstated in service. The LPA was heard in which, the petitioner was represented. Ultimately, vide judgment dated 30.3.2005 the said LPA along with its analogous cases was allowed. This means that the order, by which, the petitioner was removed from service, was affirmed. This facts are admitted by the parties.

4. Counsel for the petitioner submits that before passing the impugned order, the petitioner should have been given notice. He further submits that opportunity of hearing

has also not been given to him. He also submits that similarly situated persons are still working.

5. Counsel for the State submits that the reinstatement of the petitioner was because of ignorance of the fact that LPA was pending. Now the LPA has already been decided against the petitioner and therefore, the petitioner does not have any right to remain in service.

6. The petitioner was admittedly dismissed on 26.2.2002. The petitioner preferred writ petition being WPS No. 4356 of 2002, which was allowed. The order passed in WPS No. 4356 of 2002 was challenged by the State in LPA No. 699 of 2003. It is admitted that the said LPA was allowed and the final order passed in WPS No. 4356/2002 was set aside. This means the termination order of the petitioner in the year 2002 was revived by the Division Bench of this Court. When the Division Bench has uphold the dismissal order of the petitioner, there was no option before the respondent authorities but to pass the impugned order of removal of the petitioner from service in compliance of order passed by the Division Bench of this Court.

7. In these types of cases, where there is an order of Court, which tantamounts upholding the dismissal order, which was earlier passed, there is no need to issue any notice to the person/employee concerned. Thus, I find that there is no illegality in order dated 3.11.2017, issued by the Deputy Inspector General of Police (Rail), by which, the petitioner has been dismissed from service.

8. Accordingly, this writ petition is dismissed."

3. One fact, which appears to have missed out in the narration, is the judgment rendered by the Apex Court in Civil Appeal Nos. 5460-65 of 2007 in the case of Nagendra Chandra Etc. Etc. Vs. State of Jharkhand & others dated 28th November, 2007. The said appeal arose out of the Writ Petition (S) No. 2469 of 2004, which was analogously decided with the batch of other writ petitions and Letters Patent Appeals including L.P.A No. 699 of 2003 preferred by the State against the judgment rendered by the writ court in the case of same petitioner. Perusal of the judgment of the Apex Court shows that the entire appointment made to the post of Constable in the year 1990 which were subject matter of the writ petitions and Letters Patent Appeal before the High Court, were in consideration. The Hon'ble Supreme Court, after noticing the case of the parties and the decisions on the issue of illegality or irregularity in appointment process, as per Rule 663(d) of the Bihar Police Manual, came to the following opinion.

9. In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 663(d) of the Bihar Police Manual bat also violative of Articles 14 and 16 of the Constitution, which rendered the appointments of the appellants illegal as such the competent authority was quite justified in terminating his service and the High Court, by the impugned order, was quite justified in upholding the same.

10. In the result, the appeals fail and the same are accordingly dismissed, but in view of the fact that the appellants have continued in service for a period of fourteen years, we may, however, observe that their cases may be considered for future appointment and age bar if any, may be relaxed in relation to them. There shall be no order as to costs."

4. It therefore appears that termination/dismissal of the persons like the petitioners from the post of Constable by the competent authority as upheld by this Court in the batch of LPAs / writ petitions were affirmed. The Apex Court, however, observed that since the appellants have continued in service for a period of 14 years, their cases may be considered for future appointment and age bar, if any, may be relaxed in relation to them. The appellant herein has been reinstated in service during pendency of Letters Patent Appeal after his dismissal was set aside by the writ court in the first instance. However, once the Letters Patent Appeal No. 699 of 2003 preferred by the State was allowed and the termination were upheld by the Apex Court in identical circumstances, the services of the petitioner terminated by order dated 3rd November, 2017, impugned in the present writ petition, cannot be faulted on the ground of violation of principles of natural justice. The DIG (Rail) Jharkhand while terminating the services of this appellant vide Regional Order No. 11 of 2017, also rendered a finding that the case of the present appellant stood on the same and similar footing as that of the appellant before the Hon'ble Supreme Court since all of them were illegal appointees.

5. The plea raised by the petitioner of denial of opportunity of hearing to him before passing of termination order dated 3rd November, 2017 in the background history of the litigation, in our considered view, is not tenable in law or facts. No relief could have been granted to the petitioner in such circumstances. His reinstatement was subject to the outcome of the Letters Patent Appeal. Once the same were held to be illegal and that those findings

were upheld in the case of similar writ petitioners by the Apex Court, the appellant herein could not seek to continue in service on the basis of illegal appointment. The question of issuing fresh notice or granting opportunity of hearing before passing the order of termination dated 3 rd November, 2017, therefore, did not arise. We therefore do not find any merit in the instant appeal. It is accordingly dismissed.

(Aparesh Kumar Singh, J)

(Deepak Roshan, J) jk/