Jharkhand High Court
Binod Kumar Sharma vs The State Of Jharkhand on 28 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.100 of 2023
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1. Binod Kumar Sharma s/o Late Bir Chandra Sharma, Resident of
Mohalla-New Musallahpur, Patna-6, at present resident of Mohalla-
33A, Kasturba Nagar, PO Mahendru, PS Bahadurpur, District Patna
800006.
2. Sanjay Kumar son of Birju Prasad, resident of Mohalla Arya Kumar
Road, Patna, at present of Mahalla - Shahganj, PO Mahendru, PS
Sultanganj, District Patna 800006.
... Appellants
Versus
1. The State of Jharkhand
2. The Principal Secretary, Health, Government of Jharkhand, Nepal
House, Doranda, Ranchi.
3. Director-in-Chief, Health Services, Government of Jharkhand,
Namkom, Ranchi.
4. Regional Deputy Director, Health Services, Daltonganj, Palamu.
5. Civil Surgeon-cum-Chief Medical Officer, Daltonganj, Palamu.
... Respondents
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CORAM : SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Appellants: Mr. Sanjay Kumar, Advocate
Mr. Ravindra Nath, Advocate
For the Respondents : Mr. Arun Kumar Dubey, AC to GA
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06/ 28.08.2023 Upon hearing the learned counsel for the parties, this Court
passed the following, (Per Ananda Sen, J.)
ORDER
1. This Letters Patent Appeal has been preferred by the writ
petitioners of W.P.(S) No.4766 of 2012, challenging the order dated
09.12.2022 passed by the learned Single Judge in W.P.(S) No.4766 of 2012,
whereby the writ petition of the writ petitioners-appellants has been dismissed.
2. Counsel for the writ petitioners-appellants submits that the learned
Single Judge has failed to take into consideration that the writ petitioners were
never appointed by Dr. A.A. Malik, rather, they were appointed by the Civil
Surgeon, Palamau under the Family Welfare Scheme, thus, their appointment
could not have been held to be illegal. The writ petitioners-appellants were
appointed pursuant to Advertisement No.1/89-90, which has not been properly
appreciated by the learned Single Judge. It is their case that since the writ
petitioners were appointed pursuant to an advertisement against sanctioned
and vacant posts, their removal is absolutely bad and so is the impugned order
passed by the learned Single Judge.
3. After hearing the appellants, we find that the writ petitioners-
appellants claim that they were appointed vide letter dated 11.09.1989. This
letter is at Annexure 5 to the writ petition, which the learned Single Judge has
taken note of. Learned Single Judge has found that the said letter was issued
by referring to Memo No.459 dated 04.03.1989, on the basis of which, three
Member Selection Committee was constituted. Admittedly, the said order of
appointment reflects that the writ petitioners-appellants were appointed by way
of absorption. Admittedly, the original letter of appointment of the writ
petitioners-appellants was not brought on record by the writ petitioners.
Learned Single Judge has also found that though the writ petitioners-
appellants have annexed an advertisement, but even from the affidavit filed by
the writ petitioners-appellants, there is no document to suggest and indicate
that the writ petitioners-appellants had participated in the Selection process.
Vide order dated 30.05.1992, the writ petitioners-appellants were terminated,
wherein it has been clearly recorded that for their appointment no
advertisement was ever issued neither there was any roster clearance nor
there was any reservation roster and the posts were not sanctioned. The
termination order was passed in 1992, but, only in 2011, vide W.P.(S) No.3376
of 2011, the writ petitioners-appellants had challenged the same. The said writ
petition [W.P.(S) No.3376 of 2011] was disposed of by directing the
respondents to dispose of the representation of the writ petitioners, wherein
reference of C.W.J.C. No. 6575 of 2009, L.P.A. No.230 of 2011 and W.P.(S)
No.6400 of 2002 was given. The authority, thereafter, rejected the claim of the
writ petitioners-appellants, holding that the case of the writ petitioners-
appellants is not similar. Further, the learned Single Judge has also referred
that the Hon'ble Supreme Court in the case of Ashwani Kumar versus State
of Bihar reported in AIR 1994 SC 1628 has held that the initial entry of
employees was itself unauthorized and Dr. Mallick was not entrusted with the
power of creating the vacancies in the scheme and consequently it was held
that termination of services of such persons cannot be found faulted with, nor
any relief as claimed by them of reinstatement with continued services could
be made available to them. Learned Single Judge has also taken note of the
fact that the Authority has clearly held that it was informed by the Civil
Surgeon, Palamau vide letter dated 1128 dated 16.06.2012 that at the time of
appointment of the petitioners, Dr. Mallick was the Deputy Director in the
Health Department. Learned Single Judge also had taken note that the letter
of appointment of the petitioners referred to Memo No.459 dated 04.03.1989,
said to have been issued by the Deputy Director, Health Services,
Tuberculosis, Bihar, Patna, which was during the tenure of Dr. A.A. Mallick.
4. The writ petitioners claim that their case was covered by the
judgment of the Hon'ble Patna High Court in C.W.J.C. No.6575 of 2009 was
also taken note of by the learned Single Judge and it was held that the
aforesaid judgment was subject matter of consideration before the Division
Bench of the Hon'ble Patna High Court in different batches of Letters Patent
Appeals, including L.P.A. N.1741 of 2010 [State of Bihar versus Devendra
Sharma, arising out of C.W.J.C. No.6683 of 2009] and the appeal was
dismissed vide judgment dated 12.07.2011. There was some other sets of
Letters Patent Appeals, i.e., LPA No.230 of 2011 and other analogous cases
filed against the judgment dated 06.10.2009 and those Letters Patent Appeals
were dismissed vide order dated 29.03.2011. There was another set of Letters
Patent Appeals against the same judgment dated 06.10.2009 which were
allowed vide judgment dated 24.09.2014. Thus, as there were conflicting view
at the stage of Letters Patent Appeals with respect to the judgment dated
06.10.2009 passed by the learned Single Judge of Patna High Court, the
appeals against the orders passed in Letters Patent Appeals were before the
Hon'ble Supreme Court, which was decided in the case of State of Bihar
versus Devendra Sharma, reported in (2020) 15 SCC 466, wherein at
paragraphs 44, 45 and 46 the Hon'ble Supreme Court has held as under: -
44. In view of the aforesaid judgments, it cannot be said that
the appointment of the employees in the present set of
appeals were irregular appointments. Such appointments
are illegal appointment in terms of the ratio of the Supreme
Court judgment in Umadevi (3). As such appointments were
made without any sanctioned post, without any
advertisement giving opportunity to all eligible candidates
to apply and seek public employment and without any
method of recruitment. Such appointments were back door
entries, an act of nepotism and favouritism and thus from
any judicial standards cannot be said to be irregular
appointments but are illegal appointments in wholly
arbitrary process.
45. In light of the above discussion, we find that the order
dated 12-7-2011 or other similar orders passed by the High
Court cannot be sustained in law and, thus, are set aside.
The appeals filed by the State are allowed.
46. We do not find any error in the order of the High Court
dated 24-9-2014 and, therefore, the appeals filed by the
candidates against such order are dismissed. The pending
applications, if any, shall stand disposed of.
5. Learned Single Judge, after considering the aforesaid judgments
and facts of the case, dismissed the writ petition, holding that the appointment
of the writ petitioners-appellants is illegal and not irregular and the order of
termination dated 30.05.1992 as well as the order dated 20.06.2012 do not call
for any interference and dismissed the writ petition accordingly.
6. We find no merit in this Letters Patent Appeal, calling for any
interference with the impugned order dated 09.12.2022 passed by the learned
Sngle Judge in W.P.(S) No.4766 of 2012. There being no merit, this Letters
Patent Appeal is, accordingly, dismissed.
7. There shall be no orders as to costs. Urgent certified copies of this
order shall be issued as per the Rules.
(Sanjaya Kumar Mishra, C.J.)
(Ananda Sen, J.)
Kumar/Cp-02
