Arun Kumar Raut And Ors vs The State Of Jharkhand And Ors
2022 Latest Caselaw 1273 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                 W.P.(S) No. 736 of 2010

                Arun Kumar Raut And Ors.                       ...      ...      Petitioners
                                         Versus
                The State of Jharkhand and Ors.
                                                        ...         ...       Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioners : Mr. Vishal Kumar Rai, Advocate For the Respondents : Ms. Priyanka Boby, Advocate

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Through Video Conferencing

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08/30.03.2022 Heard Mr. Vishal Kumar Rai, learned counsel appearing on behalf of the petitioners.

2. Heard Ms. Priyanka Boby, learned counsel appearing on behalf of the respondents.

3. This writ petition has been filed for the following reliefs:

"That this is an application praying for issuance of a writ in the nature of writ of certiorari for quashing the order issued by the Civil Surgeon-cum- Chief Medical Officer, Dumka vide Memo No. 2770 dated 14/10/93 and 13/10/93 respectively whereby the re-appointment of the petitioners pursuant to various judgments passed by this Hon'ble Court and Hon'ble Patna High Court has been cancelled in a most illegal and arbitrary manner and in violation of the Principle of natural justice and further for issuance of a writ in the nature of writ of Mandamus commanding the Respondents to reinstate the service of the petitioners with back wages and pay him the arrears of salary and grant them other consequential relief for which the petitioners are entitled in accordance with law."

4. Learned counsel for the petitioners submits that there are altogether seven petitioners in the present case and along with others, they were appointed as daily wage workers as back as in the year 1989. 31 persons amongst them including the petitioners were regularized vide Memo dated 30.03.1989 as contained in Annexure- 1 and 1/A. The petitioners were issued show-cause notice on 10.09.1993 as contained in Annexure- 2 and were terminated from services on 14.10.1993 (Annexure-3). The order of termination was challenged

before Hon'ble Patna High Court by 20 persons out of 31 and amongst the 20 persons, the present petitioner nos. 1, 5 and 6 were also party in the writ petition which was numbered as C.W.J.C. No. 13043 of 1993. He submits that this fact is apparent from the counter affidavit wherein it has been mentioned that the said three persons were party in the matter before the Hon'ble Supreme Court. The learned counsel further submits that eventually the matter travelled upto Hon'ble Apex Court and vide order dated 20.11.1997 passed in Civil Appeal No. 8336 of 1997, direction was issued to the State to fill up vacancy, interalia, giving 50 percent weightage to the petitioners in S.L.P.

5. In compliance of the order passed by the Hon'ble Supreme Court, order dated 12.05.1998 was passed by the respondents as contained in Annexure- 4, which included the three persons i.e. petitioner no. 1 , 5 and 6. Altogether 12 persons were absorbed by the respondents vide Annexure- 5 dated 08.06.1999.

6. During the course of argument, the learned counsel for the petitioners fairly submits that neither the order of the writ petition being C.W.J.C. No. 13043 of 1993 nor the order of the Hon'ble Apex Court dated 20.11.1997 passed in Civil Appeal No. 8336 of 1997 is on record, but the counsel for the respondents, at this stage, has submitted that the extract of the order passed by the Hon'ble Supreme Court has been quoted in the counter-affidavit which is not in dispute.

7. The learned counsel for the petitioners further submits that Sunita Kumari and Others filed another writ petition being C.W.J.C. No. 10554 of 1998. During the course of arguments and upon query by this court, the learned counsel for the petitioners submitted that none of the present petitioners were party in the said writ petition being C.W.J.C. No. 10554 of 1998. However, the said writ petition being C.W.J.C. No. 10554 of 1998 was disposed of on 08.02.2000 with a finding that the petitioners of the said case were similar to the ones who were before Hon'ble Apex Court and consequently, a direction as contained in Annexure -6 was issued to the respondents of the said writ petition to give the same preference to the petitioners of C.W.J.C. No. 10554 of 1998. The learned counsel submits that in compliance of order dated 08.02.2000 passed in the case of Sunita Kumari and Others (Supra), in which the petitioners were not party,

the State of Jharkhand took a decision that remaining 11 persons will be appointed in similar manner to that of Arun Kumar Rout and others.

8. The learned counsel further submits that thereafter another order dated 22.08.2003 was passed by this Court in L.P.A. No. 343 of 1995 (P) and L.P.A. No. 56 of 1997(P). These two L.P.As. were arising from the common order dated 14.03.1995 passed in C.W.J.C. Nos. 12368 and 12203 of 1993. The said LPAs were disposed of in terms of the observations and directions given by the learned Single Judge at para 13 as well as the judgement passed by the apex court in the case of Arun Kumar Rout and Others i.e. in the case of Civil Appeal No. 8336 of 1997 arising out of S.L.P. (C) No. 2439 of 1995. The paragraph no. 13 of the order of the learned Single Judge has been quoted in para 7 of the LPAs disposed of by this Court on 22.08.2003. The learned counsel further submits that one Abhimanyu Kumar Singh preferred writ petition being C.W.J.C. 2624 of 2000 which was disposed of vide order dated 11.03.2004 with a direction to treat the said petitioner on the same footing as that of Arun Kumar Rout and others. The said order is contained in Annexure-8 to the present petition.

9. The learned counsel for the petitioners, upon a query by this Court, has fairly submitted that in the said decision which has been taken pursuant to the order passed in the case of Sunita Kumari and Others at Annexure-9, the name of the petitioners do not figure.

10. The learned counsel further submits that a letter was issued by the Deputy Secretary, Department of Health and Family Welfare, Government of Jharkhand to the Civil Surgeon, Dumka for complying the order of the Hon'ble High Court (Annexure- 10 and 10/A) and thereafter, vide letter dated 31.10.2002, the petitioners were asked to submit their certificates.

11. The learned counsel for the petitioners submits that as stated in para 25 of the writ petition, the respondent no. 6 vide letter dated 31.10.2002 (Annexure-11), asked to submit certificates regarding educational qualification and accordingly, the petitioners submitted the entire documents. After receiving the applications, the respondent no. 6 constituted a three men committee to consider the case of 11

persons for their reappointment in pursuance of order passed by Hon'ble Patna High Court and communicated the recommendation of the committee to the Health Department through letter no. 1883 dated 01.12.2003 (Annexure-11/A). He further submits that as mentioned in para 26 of the writ petition, total seven persons i.e. the petitioners in W.P.(S) No. 5513 of 2004 were reappointed and posted to their respective places as indicated in column 4 of the said notification dated 19.05.2004 (Annexure-12) out of total 11 persons.

12. During the course of argument, the learned counsel for the petitioners while clarifying the position, submitted that none of the present petitioners were party in W.P.(S) No. 5513 of 2004 which was disposed of by this Court vide order dated 18.08.2009. The order of the writ court is at Annexure- 17.

13. The learned counsel submits that interim order dated 21.04.2010 was passed by this Court in the present case wherein it was observed that the case of the petitioners are covered by Annexure- 17 i.e. order passed in W.P.(S) No. 5513 of 2004. It was further observed as follows:-

" ...in the meantime, leaving it open to the respondents, if they have reservation regarding propriety of the appointment of the petitioners, to pass fresh reasoned order after due opportunity of hearing, the operation of the impugned termination order, i.e. Annexure- 16 to the writ petition, shall remain stayed and the petitioners shall be allowed to continue in the employment."

The learned counsel submits that the order of termination issued in the year 1993 was stayed and consequently, the petitioners were allowed to continue. He also submits that the petitioner no. 5 has attained the age of superannuation as mentioned in the rejoinder. However, it is not in dispute that the petitioners, if continued in service, they have continued by virtue of the interim order passed by this Court, which would certainly merge with the final order.

14. The learned counsel for the petitioners has referred to paragraph 6 of the rejoinder to submit that vide order dated 18.08.2009 (Annexure-17) passed in W.P.(S) No. 5513 of 2004, the respondents were directed to reinstate the persons similarly situated with full back wages and consequently, on account of non-compliance of the order, contempt case (Civil) No. 687 of 2009 was filed and vide order dated

31.10.2004, the direction of the Hon'ble High Court was complied with by reinstating all seven petitioners of that case giving them full back wages since 2004. The learned counsel submits that the case of the present petitioners is similarly situated as that of petitioners of W.P.(S) No. 5513 of 2004 and accordingly, the petitioners are also entitled to the same relief.

Arguments of the Respondents

15. The learned counsel appearing on behalf of the respondents, on the other hand, while opposing the prayer has referred to the counter- affidavit and submits that as per the counter-affidavit, the petitioners were illegally appointed and against the rules framed by the State Government vide letter no. 16440 and 16441 dated 03.12.1980 of the Personnel and Administrative Reforms Department, after due consideration, the termination letters were issued. She has referred to paragraph 14 of the counter-affidavit, wherein portion of the judgement dated 20.11.1997 passed by the Hon'ble Supreme Court in the case of Arun Kumar Rout Vs. State of Bihar (Supra) has been quoted. She also submits that the said judgment was confined to the petitioners before the Hon'ble Supreme Court and it was also clearly mentioned in the aforesaid judgement that the directions contained therein are given on consideration of the special facts of the case and it was directed that the order being confined to special facts is not to be treated as precedent. She submits that petitioner no. 1, 5 and 6 were not appointed because they were out of the first 50 percent of inter se merit position and petition nos. 2, 3, 4 and 7 were not applicant in the case before Hon'ble Supreme Court so they were not entitled to get the benefit on the basis of the order passed by Hon'ble Supreme Court.

16. The learned counsel for the respondents has also submitted that the power of appointment of class -III personnel was withdrawn from the Civil Surgeon -Cum-Chief Medical Officer and the power of appointment was vested with the Divisional Commissioner and a statement to that effect has been made in paragraph no. 19 of the counter-affidavit. She refers to paragraph 25 of the counter-affidavit to submit that the respondent no. 6 issued separate show-cause to all 31 persons vide different letter numbers which included letter nos. 2329,

2331, 2334, 2340, 2350 and 2354 all dated 10.09.1993 in respect of the petitioners and the replies were also received. After considering all aspects of the matter, the respondent no. 6 i.e. Civil Surgeon-Cum- Chief Medical Officer, Dumka cancelled the appointment of all the 31 persons including the petitioners.

17. The learned counsel for the respondents has further referred to paragraphs 26 and 27 of the counter-affidavit to submit that in compliance of the order passed in W.P.(S) No. 5513 of 2004, Civil Surgeon- cum-Chief Medical Officer, Dumka vide letter no. 589 dated 08.03.2010 sought direction from the Department of Health and Family Welfare, which was under consideration. The learned counsel further submits that during the pendency of contempt petition, certain appointments were made, but later on it was found that the same was contrary to the order passed by the Hon'ble Supreme Court in Civil Appeal No. 8336 of 1997, therefore the appointment of such persons was cancelled.

18. At this, the learned counsel for the petitioners submits that the word 'petitioners' has been used in paragraph 27 of the counter- affidavit, but the same does not relate to the present petitioners. For this, he refers to the rejoinder to the counter-affidavit (paragraph 16) and submits that the benefit of reinstatement as well as back wages were given to seven persons who were petitioners in W.P.(S) No. 5513 of 2004, but there is no denial to cancellation of their appointment as mentioned in paragraph no. 27 of the counter-affidavit.

19. The learned counsel for the respondents has further submitted that only petitioner nos. 1, 5 and 6 had taken some steps in connection with their termination which was as back as on 14.10.1993, but so far as the other petitioners are concerned, they did not take any steps whatsoever and they have filed the present writ petition only on 19.02.2010. The learned counsel has submitted that there is no merit in this writ petition which is fit to be dismissed.

20. The arguments of the parties are concluded.

21. Post this case on 02.05.2022 for 'Judgement'.

(Anubha Rawat Choudhary, J.) Pankaj