Jharkhand High Court

Gautam Kumar Mandal vs The State Of Jharkhand on 1 August, 2023

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P.A. No. 337 of 2022
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1.Gautam Kumar Mandal, aged 36 years, S/o Sri Manohar Mandal, R/o Village & P.O.-Kathliya, P.S. - Masaliya, District-Dumka (Jharkhand).

2.Hirlal Rai, aged 31 years, S/o Sri Nemani Rai, R/o Village & P.O.-Barapalasi, P.S.-Jama, District-Dumka (Jharkhand).

3.Surendra Kumar Mirdha, aged 37 years, S/o Sri Jiten Mirdha, resident of Village-Ranga, P.O. and P.S-Masaliya, District-Dumka (Jharkhand).

4.Sunil Kumar Mandal, aged about 49 years, S/o Sri Manik Chandra Mandal, R/o Village Bharnadih, P.O. - Dadhihat, P.S. - Ramgarh, District - Dumka (Jharkhand).

5.Ajay Kumar Rai, aged about 36 yers, S/o Sri Vishnu Rai, R/o Village-Kordaha, P.O. - Dighi, P.S. Sariyahat, District- Dumka (Jharkhand).

                      ...    ...        Petitioners/Appellants
                             Versus
1.The State of Jharkhand

2.The Chief Secretary, Govt. of Jharkhand, Ranchi, Project Building, P.O. & P.S. -Dhurwa, District-Ranchi (Jharkhand).

3.The Home Secretary, Govt. of Jharkhand, Ranchi, Project Building, P.O. & P.S. -Dhurwa, District-Ranchi (Jharkhand).

4.The Director General-cum-Inspector General of Police, Jharkhand, Ranchi, Police Head Quarter, P.O. & P.S.- Dhurwa, District-Ranchi (Jharkhand).

5.The Deputy Commissioner, Dumka, P.O., P.S. and District- Dumka (Jharkhand) ... Respondents /Respondents

6.Shankar Prasad Yadav, S/o Sri Jharu Mahto, R/o Village- Chakrapathar, P.O. -Banwara, P.S. Jarmundi, District- Dumka (Jharkhand)

7.Panchu Rai, S/o Sri Baldeo Rai, R/o Village-Kharbila, P.O. Banwara, P.S. Jarmundi, District-Dumka (Jharkhand)

8.Jiyadhar Rai, S/o Janki Rai, R/o Village-Khijurma, P.O- Kaladumariya, P.S. Jarmundi, District-Dumka (Jharkhand)

9.Sachidanand Mirdha, S/o Sri Fagu Mirdha, R/o Village & P.O.-Sinduriya, P.S. Ramgarh, District-Dumka (Jharkhand)

---- Petitioners/Performa Respondents

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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellants : Mr. Anjani Kumar Verma, Advocate For the Respondents : Mr. Mohan Dubey, AC to AG

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Order No. 05 : Dated 1st August, 2023 Per Sujit Narayan Prasad, J:

1. The case has been listed under the heading for Orders

(with defects) with the office note that defect nos. 1 and

2 still exists.

2. Mr. Anjani Kumar Verma, learned counsel for the

appellants has submitted that so far as defect no. 1 is

concerned it relates to payment of authentication fee of

Rs. 10/-, which shall be removed in course of day. So

far defect no. 2 is concerned, it has been submitted that

the same may be ignored as the same relates to filing of

all the annexures as annexed with the writ petition with

the instant memo of appeal.

3. This Court considering the fact that the instant memo of

appeal has been placed with the record of writ petition,

as such defect no. 2 is ignored.

4. With the consent of learned counsel for the parties, the

appeal is taken up at this stage for hearing.

5. The instant intra-court appeal, under Clause 10 of the

Letters Patent, is directed against common order dated

21.06.2022 passed in W.P. (S) No. 5561 of 2016, by

which the case of the appellants has been disposed of in

terms of order dated 09.08.2019 passed in L.P.A. No.

196 of 2012 with L.P.A. No. 404 of 2012, in which, order

dated 17.11.20211 passed in W.P. (S) No. 2072 of 2007

[Nandan Lohra Vs. State of Jharkhand & Ors] has been

upheld.

6. It is the case of the writ petitioners-appellants that they

were duly appointed on the post of Chaukidar vide

Memo No. 05 dated 04.01.2011 issued by the Deputy

Commissioner, Dumka, as per decision taken by the

District Level Chaukidar Selection Committee in its

meeting on 03.08.2010 held under the chairmanship of

Deputy Commissioner, Dumka in pursuant to

Government Memo No. 11287 dated 20.12.1995 issued

by the Home Department of Bihar and Government

Memo No. 3206 dated 15.06.2002 issued by the Home

Department, Government of Jharkhand. The petitioners-

appellants after their appointment on the said post

joined their respective Police Stations and continued to

perform their duties.

7. The Department of Home, Government of Jharkhand

vide letter dated 23.05.2014 directed the Deputy

Commissioners of all the districts of the State of

Jharkhand, enclosing therewith copy of order dated

17.11.2011 passed in W.P. (S) No. 2072 of 2007

[Nandan Lohra vs. State of Jharkhand & Ors] to stay the

matter related to the appointment of

dependent/nominee of the Chaukidar/Dafadar, who

retired after 01.01.1990 as one time exception.

8. Thereafter, the Department of Home, Government of

Jharkhand issued letter dated 23.12.2015 directing the

Deputy Commissioners of all the districts of State of

Jharkhand to show cause to all the Chaukidar having

been appointed being the dependant nominee of

Chaukidar/Dafadar, who retired after 01.01.1990 as

one time exception, as to why they should not be

terminated from service in compliance of order dated

17.11.2011 passed in W.P. (S) No. 2072 of 2007

[Nandan Lohra vs. State of Jharkhand & Ors].

9. Pursuant thereto, vide order dated 09.08.2016 issued by

the Deputy Commissioner, Dumka, the petitioners-

appellants and other similarly situated chaukidars were

terminated from services giving reference of order dated

09.03.2016 passed in W.P. (PIL) No. 1048 of 2016

arising out of L.P.A. No. 437 of 2014 that allowing those

Chaukidar/dafadar who have been appointed between

19.04.2010 to 17.11.2011 on the basis of

nomination/hereditary basis is contrary to rule and

Jharkhand Chaukidar Gradation Rules, 2015.

10. Aggrieved thereof, the writ petitioners-appellants

have approached this Court by filing writ petition being

W.P.(S) No. 5561 of 2016, which was disposed of by

common order dated 21.06.2022 by which the case of

the appellants has been disposed of in terms of order

dated 09.08.2019 passed in L.P.A. No. 196 of 2012 with

L.P.A. No. 404 of 2012, in which, order dated

17.11.20211 passed in W.P. (S) No. 2072 of 2007

[Nandan Lohra Vs. State of Jharkhand & Ors] has been

upheld, against which, the instant intra-court appeal has

been filed.

11. At the outset, learned counsel for the respondents-

State of Jharkhand has submitted that similar issue has

been decided by this Court in L.P.A. No. 303 of 2022

and analogous cases vide order dated 25.07.2023,

taking note of the order passed in L.P.A. No. 196 of 2012

wherein the Division Bench of this Court while

disposing of the appeal has taken into consideration the

order passed by the Hon'ble Apex Court in the Case of

Surender Paswan & Ors. vs. State of Bihar & Ors.

reported in (2010) 6 SCC 680.

12. Submission, therefore, has been made that the

instant appeal may also be disposed of in terms of order

passed in L.P.A. No. 303 of 2022.

13. In view of specific submissions advanced by

learned counsel for the parties, we have perused the

judgment passed in L.P.A. No. 303 of 2022 and

analogous cases [Bhola Ram & Ors Vs. The State of

Jharkhand & Ors], wherefrom we have found that the

plea of the appellant that the statutory rule which has

come in the year 2015 cannot have retrospective

application since the Chaukidars were appointed prior

to the aforesaid rule but we have not found substance in

the said plea based upon the fact that dispensing with

the services of the Chaukidars was based upon the

order passed by this Court in W.P. (PIL) No. 1048 of

2016 wherein it was apprised to the Court that the legal

heirs of the Chaukidars had been dispensed with who

have got service on the basis of inheritance after

19.04.2010.

14. This Court has considered the issue that even in

absence of any rule if the Constitutional Court has

taken a decision, holding such appointment based upon

inheritance being public employment, to be illegal and

as such in absence of any rule to that effect, however,

subsequently the rule has come but since the action has

been taken on the basis of order passed this Court

under Article 226 of the Constitution of India, therefore,

this Court in the aforesaid judgment has refused to

interfere with the decision of the authority dispensing

with the services.

15. For ready reference, relevant paragraph 48 to 52 of

the judgment passed in L.P.A. No. 303 of 2022 and

analogous cases [Bhola Ram & Ors Vs. The State of

Jharkhand & Ors] are quoted as under:

"48. It appears from the impugned order and the fact is admitted that all the appellants were appointed after 19.04.2010. Once the orders have been passed by the Hon'ble Apex Court as in the case Surender Paswan & Ors. (Supra) wherein the order passed in C.W.J.C. No. 7374 of 1995 decided on 07.04.1997 by refusing the prayers made on behalf of the legal heirs of the Chowkidars appointed in village within the year 1990 and 1995, the same ultimately culminated into Special Leave Petition converted to the Civil Appeal i.e. the case of Surender Paswan & Ors. (Supra) and wherein this Court has passed the following direction as would appear from paras-17 & 18 thereof, which reads as under:

"17. As a result, the only course remaining is to direct implementation of the last direction contained in the order dated 7.4.1997, that is, to have a fresh open selection process on merits. However, in view of the subsequent events, certain modifications are required in regard to the authority to conduct the fresh selections and in regard to age relaxation for the appellants and the respondents who were earlier appointed and whose appointments have been found to be invalid / irregular.

18. We therefore dispose of this appeal with the following directions:

(i) The direction contained in the High Court's order dated 7- 4-1997 to hold fresh selection process for the posts of Chowkidars is reiterated.

(ii) Having regard to the fact that the Bihar Chowkidar Gradation Rules. 2006 have come into force; the selections will be done by the Selection Committee constituted as per the said Rules, in accordance with the said Rules, instead of by the District Collector.

(iii) The appellants and Respondents 4 to 27 will be entitled to apply for the post, subject to fulfilling the eligibility criteria as per the said Rules. However, age relaxation shall be given in the case of the appellants and Respondents 4 to 27 and they will be entitled to apply, irrespective of their present age, subject to fulfilment of eligibility requirements.

(iv) Respondents 1 to 3 are directed to initiate the process of selection and complete the same within six months and till such selection and appointment, the present incumbents will be entitled to continue as Chowkidars purely on ad hoc basis."

49. It appears that L.P.A. No. 437 of 2014 which subsequently was converted into W.P.(P.I.L.) No.1048 of 2016 wherein also the similar issue has been taken note based upon the order passed in that regard in W.P.(S) No. 2072 of 2007 wherein, by filing an affidavit it was informed that the services of all the legal heirs of the Chowkidars had been dispensed with who have got service on the basis of inheritance after 19.04.2010.

50. Herein also the appointments are made after 19.04.2010. Once the order has been passed by the Constitutional Court more particularly the ratio has been decided herein by the Hon'ble Apex Court, the same having taken the force of the law of land and such the same is binding even in absence of any statutory rule.

51. Here the argument of the writ petitioner that the appointment was prior to coming into effect of rule of 2015 and hence their services should not have been dispensed with, according to our considered view, the decision of dispensing with the services has been taken on the basis of the order passed by the Hon'ble Apex Court in the case of Surender Paswan & Ors. (Supra) and the order passed by this Court in W.P.(P.I.L.) No.1048 of 2016 therefore, even in absence of any rule once the Court of law has declared such appointment to be contrary to Article 14 and 16 of the Constitution of India, the same has to go. 52. Accordingly, in such circumstances, decision has been taken for dispensing with the services, the same according to our considered view cannot be said to suffer from any infirmity. This Court has discussed the factual aspect and coming to the order passed by the learned Single Judge where from it is evident that the learned Single Judge has also given due consideration of the implication of the judgement passed by the Hon'ble Apex Court in the case of Surender Paswan & Ors. (Supra) on the

basis upon which the impugned order dated 21.06.2022 has been declined to be interfered with."

16. Even otherwise also, it requires to refer herein, as

per mandate of Article 16(1) of the Constitution of India

which speaks about the right to equality in the matter of

public employment and confers fundamental right to

treat all similarly situated persons equally in the matter

of public employment and in case, if there is government

policy inconsistent with the constitutional mandate, the

constitutional mandate will prevail and not the circular

like the facts of this case.

17. Accordingly, the instant appeal fails and is

dismissed in terms of order passed in L.P.A. No. 303 of