Dhaneshwar Ray vs The State Of Jharkhand Through The ...
2023 Latest Caselaw 2686 Jhar

                                     1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     L.P.A. No. 334 of 2022
1.Dhaneshwar Ray, aged 35 years, S/o Sri Rupan Ray, R/o Village-
  Purnighat, P.O. and P.S.- Narayanpur, District-Jamtara (Jharkhand)
2.Rakib Ansari, aged 31 years, S/o Safique Ansari, R/o Village-Baradaha,
  P.O.- Kalajharia, P.S.- Karmatanr, District-Jamtara (Jharkhand)
3.Santosh Turi, aged 39 years, S/o Late Shashi Turi, resident of At, P.O.
  and P.S.- Narayanpur, District-Jamtara (Jharkhand)
4.Suresh Kumar Turi, aged 30 years, S/o Sri Puri Turi, R/o Village- Ramnagar
  P.O- Chainpur, P.S. Narayanpur, District Jamtara (Jharkhand)
                                                --- --- Petitioners/Appellants
                                  Versus

1.The State of Jharkhand through the Chief Secretary, Govt. of
  Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S.- Dhurwa
  District-Ranchi (Jharkhand)
2.The Additional Chief Secretary-cum-Principal Secretary, Home, Jail and
  Disaster Management Department, Jharkhand, Project Building, P.O.
  & P.S. - Dhurwa, District-Ranchi
3.The Joint Secretary to the Govt., Home, Jail and Disaster Management
  Department, Jharkhand, Project Building, Dhurwa, P.O. & P.S.-Dhurwa,
  District-Ranchi (Jharkhand)
4.The Deputy Commissioner, Jamtara, P.O. & P.S.- Jamtara, District-Jamtara
  (Jharkhand)
5.The Superintendent of Police, Jamtara, P.O. and P.S.-Jamtara, District-
  Jamtara (Jharkhand)                          --- --- Respondents/Respondents

                                         .......

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

For the Appellant         : Mr. Anjani Kumar Verma, Advocate
For the Respondent        : Mr. Mohan Kr. Dubey, A.C to A.G.

Order No.05/ Dated 08th August, 2023

      Per Sujit Narayan Prasad, J.

1. This appeal has been listed under the heading for orders on defect, since, defect no.1, as was pointed out by S/R dated 08.08.2022, still exists. Defect no.1 pertains to filing of certified copy of the impugned order with authentication fee of Rs.10/- per page.

2. Learned counsel for the appellant Mr. Anjani Kumar Verma has submitted that the said defect will be removed during course of the day by filing certified copy of the impugned order. He further submits that, since, he undertakes to remove the defect during course of the day, the appeal may be heard on merits and order may be passed that the certified

copy of the order will not be delivered unless the defect no.1 is removed.

3. There is no objection on the part of the learned counsel for the State.

4. Heard learned counsel for the parties.

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. 5887 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 17.11.2011 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 between 14.07.2010 to 29.01.2011 by the Deputy Commissioner, Jamtara, as per decision taken by the District Level Chaukidar Selection Committee in its meeting on 03.06.2010; 15.09.2010 and 04.01.2011 held under the chairmanship of Deputy Commissioner, Jamtara in pursuant to Government Memo No. 11287 dated 20.12.1995 as well as other circulars/ letters issued by the Home Department, Government of Bihar/Jharkhand State. 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 22.06.2016 issued by the Deputy Commissioner, Jamtara, 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 rules of 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. 5887 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 17.11.2011 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 appellants 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 by 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 person 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 2022 and analogous cases [Bhola Ram & Ors Vs. The State of Jharkhand & Ors].

18. The Office is directed to deliver the certified copy of the order subject to the removal of the defect no.1 by filing the certified copy of the impugned order, as has been undertaken by the learned counsel for the appellant.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

A.Mohanty