Bibhishan Mahto vs The State Of Jharkhand
2023 Latest Caselaw 3011 Jhar

                                       1                           L.P.A. No. 302 of 2022



            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                L.P.A. No. 302 of 2022
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1. Bibhishan Mahto, aged about 61 years, son of Late Mahendra Mahto, resident of Pathra, P.O. Pathra, P.S. Godda, District-Godda.

2. Gopal Jha, aged about 52 years, son of Late Yamuna Prasad Jha, resident of Mohalla Sonuwadangal, Ward No.2, P.O. and P.S. Dumka, District-Dumka.

3. Sunil Verma, aged about 53 years, son of Late Choudhary Ram resident of Kalyanpur, P.O. Deoghar, P.S. Deoghar, District-Deoghar.

... ... Petitioners/Appellants Versus

1. The State of Jharkhand.

2. The Director, Higher Education, Government of Jharkhand, having office at Project Building, Dhurwa, P.O. and P.S. Dhurwa, District-Ranchi.

3. The Vice-Chancellor, Sidhu Kanhu Murmu University, Dumka, P.O. and P.S. Dumka, District Dumka.

4. The Registrar, Sidhu Kanhu Murmu University, Dumka, P.O. and P.S. Dumka, District Dumka.

5. The Principal, Godda College, Godda, P.O. and P.S. Godda, District-Godda.

6. The Principal, S.P. College, Dumka, P.O. and P.S. Dumka, District Dumka.

7. The Principal, A.S. College, Deoghar, P.O. and P.S., Deoghar, District Deoghar.

... ... Respondents/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 Kr. Verma, Advocate
       For the Resp.-State          : Mr. Vineet Prakash, AC to SC-IV
       For the Resp.-University     : Dr. Ashok Kr. Singh, Advocate
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     06/Dated: 19th August, 2023

I.A. No. 7077 of 2023:

1. This interlocutory application has been filed for condoning the delay of 51 days, which has occurred in preferring this appeal.

2. No counter to the delay condonation application has been filed.

3. Heard the parties.

4. Having heard the learned counsel for the parties and considering the statements made in this application, we are of the view that the appellant was prevented from sufficient cause in preferring this appeal within time.

5. Accordingly, this interlocutory application is allowed and the delay of 51 days in preferring this appeal, is hereby condoned.

6. With the consent of the parties, the matter has been heard at this stage for final disposal.

L.P.A. No. 302 of 2022:

7. The instant appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 15.12.2020 passed by the learned Single Judge of this Court in W.P.(S) No. 5818 of 2016 and analogous cases, whereby and whereunder, the direction sought for upon the respondents for claim of writ petitioners for payment of actual pay scale and arrears of difference of salary of Class-III post, has been declined by dismissing the writ petition.

8. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, read as under:

The writ petitioners were appointed on compassionate ground in Class- IV post in different colleges at Godda, Deoghar and Dumka.

It is the case of the writ petitioners that the writ petitioners vide office order no. 112/12 were appointed on Class-III post and although are discharging their duties in 3rd Grade post as office order in different colleges but the respondent-authority is not making payment to the writ petitioners in Grade 3rd scale for which they have approached before the authority but the authority has not passed any order to that effect. The writ petitioners have also made representation dated 04.06.2013 before the then Vice-Chancellor, S.K.M. University for payment of salary in Class-III grade, but no heed to their grievance has been given by the authority concerned.

Being aggrieved with the same, writ petitioner approached before this court by filing writ petition being W.P.(S) No. 893 of 2015 which was disposed of on 25.01.2016 with a direction to file representation before the

authority concerned. Pursuant to the order passed by the writ court, the writ petitioners filed fresh representation before the Registrar, S.K.M. University, Dumka for consideration of their claim but the respondents have not passed any order within the stipulated time.

Thereafter, the writ petitioners filed contempt petition being Cont. Case (Cvl.) No. 396 of 2016 and during pendency of the said contempt case, the claim of the writ petitioners has been rejected vide order dated 26.05.2016 by the respondent.

Being aggrieved thereof, the writ petitioner have again filed writ petition being W.P.(S) No. 5818 of 2016 which has been dismissed vide order dated 15.12.2020 against which the instant intra-court appeal has been preferred.

9. It appears from the factual aspect that the writ petitioner on account of demise of his father in harness was provided with appointment on class-IV post on compassionate ground. However, the writ petitioner was subsequently been appointed in Class-III post but the salary of the said post was not been disbursed, therefore, the writ petitioner has raised the grievance by filing writ petition being W.P.(S) No. 893 of 2015 has been filed seeking therein a direction for disbursement of salary. The aforesaid writ petition was disposed of vide order dated 25.01.2016, whereby and whereunder, while dismissing the writ petition liberty was granted to the writ petitioner to approach the respondent no.5, Registrar, Sidhu Kanhu Murmu University, Dumka by filing representation for its consideration by the authority concerned.

The case of the in terms of the aforesaid order dated 25.01.2016 has been considered by the authority and vide order dated 26.05.2016, the authority concerned has not decided the representation but the same has not been decided on the ground that the similar issue is lying pending in the case of Amar Archar Tudu who for the same cause of action has preferred a writ petition before this Court in W.P.(S) No. 449 of 2015.

The writ petitioner has assailed the order dated 26.05.2016 by filing writ petition being W.P.(S) No. 5818 of 2016 but the said order has been

refused to be interfered with against which the present appeal has been preferred.

10. Mr. Anjani Kumar Verma, learned counsel for the appellant has submitted by referring to the impugned order dated 26.05.2016 wherein the concerned authority has passed the order that since the similar issue is lying pending before this Court in the case of Amar Archar Tudu, W.P.(S) No. 449 of 2015, as such, awaiting for the outcome, no decision was taken.

11. The submission has been made that although the writ petition filed on behalf of Amar Archar Tudu being W.P.(S) No. 449 of 2015 was dismissed but the same was held to be not a correct law by the Division Bench of this Court in L.P.A. No. 79 of 2021 disposed of vide order dated 24.03.2022.

12. The submission, therefore, has been made that since the sole ground taken in the impugned order regarding pendency of the issue before this Court in the case of Amar Archar Tudu and when the issue in the said case has finally been decided by the Division Bench of this Court, therefore, the writ petitioners/appellants are entitled for the same relief.

13. Dr. Ashok Kumar Singh, learned counsel for the respondent-University has submitted that the claim which has been sought for on behalf of the appellant for appointment in Class-III post on compassionate ground cannot be said to be permissible since once the appointment in Class-IV post has been consummated, there is no occasion for the dependant of the deceased employee to claim appointment in the higher post, i.e., Class-III post.

14. The submission, therefore, has been made that on the aforesaid inadmissibility, although the appointment initially was provided in favour of the writ petitioner in Class-IV post subsequently he has been posted in Class-III post by the University, but the same has not been approved by the State and that was the reason for non-disbursement of the salary.

15. However, the learned counsel for the University has admitted that the case of Amar Archar Tudu has finally been decided by the Division Bench of this Court in L.P.A. No. 79 of 2021 wherein direction has been passed in favour of the said Amar Archar Tudu for acceptance of his service in Class-III post along with direction upon the State to disburse the salary.

16. Mr. Vineet Prakash, learned AC to SC-IV appearing for the State has not disputed the fact that the similar issue has been decided by this Court in L.P.A. No. 79 of 2021.

17. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.

18. This Court on consideration of the submission and by going through the order passed by the administrative authority wherein the claim of the writ petitioner since was denied, therefore, the grievance was raised by filing writ petition being W.P.(S) No. 893 of 2015. The authority in pursuance of the direction passed by the writ court has taken the decision wherein the reference of a case filed on behalf of Amar Archar Tudu, W.P.(S) No. 449 of 2015, has been made. The specific stipulation has been made that the final decision will be taken in the light of the order of this Court, i.e., after passing of the order in the case of Amar Archar Tudu.

19. It appears from the aforesaid order, save and except, the aforesaid reason, there is no other reason in denial of the claim of the appellant.

20. It is admitted fact that case the case of Amar Archar Tudu has been decided by the co-ordinate Division Bench of this Court in L.P.A. No. 79 of 2021 wherein the order passed by the writ court in W.P.(S) No. 449 of 2015 was the subject matter.

21. The co-ordinate Division Bench of this Court after having discussed the factual aspect in entirety and on appreciation of the rival submissions on behalf of the parties, has reversed the order passed by the learned Single Judge by quashing and setting aside the order by giving the reason for the same as would appear from paragraphs-11, 12, 13, 14, 15 and 16 of the said appeal. For ready reference, the said paragraphs are being referred as under:

"11. This Court, apart from the aforesaid concession made on behalf of the concerned respondent and as per the stand taken in the affidavit on their behalf, is of the view that the learned Single Judge while dismissing the writ petition by relying upon the provision of Section 35 of the Jharkhand University Act, 2000 is incorrect in applying the said provision in the matter of appointment on compassionate ground, reason being that the appointment on compassionate ground is required to be made under the provision of scheme floated by the State.

Section 35 of the Jharkhand University Act, 2000 speaks about allocation of fund by the State Government. Appointment on compassionate

ground since is to be made against the sanctioned post, therefore, while making such appointment there is no reason of applying the provision as contained under Section 35 of the Jharkhand University Act, 2000 and in absence of sanctioned post, there cannot be any appointment on compassionate ground. Therefore, the reason of dismissal of the writ petition by the learned Single Judge by applying the provision as contained under Section 35 of the Jharkhand University Act, 2000, according to our considered view, is incorrect as per the discussion made hereinabove.

12. So far as the second ground for dismissal of the writ petition, i.e., Section 5 of the Jharkhand Staff Selection Commission Act, 2008 is concerned, it is not in dispute that the power to fill up the post through direct recruitment has been vested to the Staff Selection Commission under the provision of Section 5 of the Act, 2008.

Since, we have already discussed hereinabove that the appointment on compassionate ground is to be made in view of the scheme floated by the State which admittedly cannot be considered to be direct recruitment rather it is an appointment under exception to Article 14 and 16 of the Constitution of India as per the scheme to provide immediate succor to the bereaved family on account of sudden demise of the bread earner, therefore, the section 5 of the Act, 2008, in such circumstances, will not be applicable for the reason as referred hereinabove.

It further requires to refer herein that the University itself has taken the stand that the policy of the State Government with regard to appointment on compassionate basis is being followed, therefore, we have considered the policy formulated by the State Government for the purpose on 05.10.1991 which was in vogue on the date of consideration of the case of the writ petitioner taking into consideration the date of death and the date of convening the meeting by the compassionate committee, i.e., on 07.07.2012 as per which the appointment is to be made on compassionate ground against the Class-III/Class-IV posts by the District Compassionate Committee/Compassionate Committee. Therefore, once the University has taken the plea about following the policy of the State Government in the matter of appointment on compassionate ground which admittedly as per the Circular dated 05.10.1991 is required to considered by the Compassionate Committee, therefore, there is no question of making appointment on compassionate ground through the examination conducted by the Jharkhand Staff Selection Commission.

13. Admittedly herein, the writ petitioner was appointed on the basis of the recommendation made by the compassionate committee under the authority of the Vice Chancellor of the concerned University by virtue of notification no. 110 of 2012 dated 06.10.2012. The writ petitioner gave his joining and started rendering his duty as also transferred from one place to another and has given joining in terms of the aforesaid order of transfer. The State Government has come with the specific stand that the Vice Chancellor is competent authority and if such appointment has been made against the sanctioned post, there is no reason to get an approval from the State Government.

14. This Court, therefore, in the entirety of the facts and circumstances, is of the considered view that the learned Single Judge while dismissing the writ petition, has not considered the facts in the right perspective as per the discussion made hereinabove, therefore, the order passed by the learned Single Judge suffers from patent illegality.

Accordingly, the order passed by the learned Single Judge requires interference, as such, quashed and set aside.

The notification no. 41 of 2014 dated 20.06.2014 by which the writ petitioner has been reverted to Class-IV post is also hereby quashed and set aside.

In consequence thereof, the writ petition being W.P.(S) No. 449 of 2015 stands allowed.

15. The respondent-University is directed to accept the joining of the writ petitioner in Class-III post in pursuance of the notification no. 110 of 2012 dated 06.10.2012 within a period of four weeks from the date of receipt of copy of this order.

16. This Court, considering the stand of the State Government, directs the concerned department of the State Government to release the fund forthwith so that the salary of the writ petitioner be paid."

22. It further appears that the case of the said Amar Archar Tudu had been given analogous hearing along with the writ petitioner filed by the appellants. Since the order passed in W.P.(S) No. 449 of 2015 has been quashed and set aside. Therefore, there is no reason to take different view taking into consideration the admission on the respondent-University wherein the fact about pendency of the case of Amar Archar Tudu has finds mention.

23. Since the ground taken while considering the case of the appellants in the light of the order passed by learned Single Judge that awaiting the final decision which was to be taken by this Court in Amar Archar Tudu wherein the decision has already been taken as has been referred hereinabove, therefore, there is no reason now for this Court to not extend the same benefit as has been granted in favour of the said Amar Archar Tudu.

24. Considering the aforesaid reason, the impugned order dated 15.12.2020 passed in W.P.(S) No. 5818 of 2016 so far as it relates to the appellants/writ petitioners are quashed and set aside in the light of the direction passed by this Court in L.P.A. No. 79 of 2021.

25. Accordingly, the instant appeal stands disposed of.

26. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) Saurabh/-

N.A.F.R.