Jharkhand High Court
Commissioner Commercial Taxes vs The State Of Jharkhand on 17 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
W.P.(S) No.2326 of 2016
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.2326 of 2016
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Asgar Ali, son of Late Abdul Razzaque resident of Village-
Saidpur, Dhobi Tola-Kathari, Post Office-Parsa and Police
Station-Daryapur, District-Chapra (Sharan). Retired on
30/06/2012 as peon in the office of Assistant
Commissioner Commercial Taxes, Sahebganj Circle,
Sahebganj. ... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Secretary, Ministry of Commercial Taxes,
Government of Jharkhand, Project Building, Dhurwa,
Post Office and Police Station - Dhurwa, District-Ranchi.
3. The Joint Commissioner, Commercial Taxes, Ranchi,
Project Building, Dhurwa, Post Office and Police Station
- Dhurwa, District-Ranchi.
4. The Assistant Commissioner, Commercial Taxes
Department, Sahebganj, Post Office and Police Station -
Sahebganj, District-Sahebganj.
5. The Secretary, Human Resource Development
Department, Project Building, Dhurwa, Post Office and
Police Station - Dhurwa, District-Ranchi.
6. The Director, Primary Education, State of Jharkhand,
Project Building, Dhurwa, Post Office and Police Station
- Dhurwa, District-Ranchi.
7. The Sub-Divisional Education Officer, Sahebganj, Post
Office and Police Station - Sahebganj, District-
Sahebganj.
8. The Accountant General, Ranchi, Post Office and Police
Station-Doranda, District-Ranchi.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Arshad Hussain, Advocate
For the State : Mr. M.K.Roy, G.A.-I
For the Resp. No.8 : Mr. Sudarshan Shrivastava, Advocate
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Order No. 07/Dated 17.02.2024
Per Sujit Narayan Prasad, J.
1. The instant writ petition is under Article 226 of the
Constitution of India whereby and whereunder the following
reliefs have been sought for :-
"I. For issuance of an appropriate writ/writs,
order/orders, direction /directions in nature of
Certiorari for quashing the memo No. 1326 Ranchi,
dated 04/03/2013 issued by the Joint Commissioner,
Commercial Taxes, Government of Jharkhand whereby
he has refused to grant the retiral benefits such as
pension, gratuity, group insurance, general provident
fund amount and leave encashment etc. to the
petitioner even after continuous service of 36 years.
II. For issuance of an appropriate writ/writs,
order/orders, direction/directions in the nature of
mandamus commanding upon the Respondents to
finalize the pension and to pay it regularly with other
pensionary benefits which has not yet been paid to the
petitioner.
III. To issue appropriate writ/writs, order/orders,
direction /directions in the nature of Certiorari for
quashing the clause 11 and 12 of the letter No.-824
dated 30/5 / 2007 (ANNEXURE-4) issued by Ministry
of Human Resource Development Department,
Government of Jharkhand, whereby and whereunder
the Respondents have imposed a condition on the
Petitioners that their adjustment/absorption will be
deemed to be new services and they will not be given
the service benefit of remuneration/payment
protection.
IV. For issuance of an appropriate writ/writs,
order/orders, direction /directions in the nature of
mandamus commanding upon the Respondents to pay
to the petitioner his rest amount of Rs. 1,35,000/-
(Rupees one lakh, thirty five thousand only) plus
interest because the petitioner has partly been paid
Rs. 4 ,00,000/- (Four Lakhs only) by way of cheque
no. 059492 dated 13/06/2013 out of total due of Rs.
5,35,000/- against the arrear salary which was not
paid to him for the period since 16/05/2001 till his
readjustment/absorption (03/03/2008) in a
commercial Tax Department (Annexure-5).
V. For issuance of an appropriate writ/writs,
order/orders, direction /directions in nature of
Certiorari for quashing the clause/condition (1), (2) &
(3) of letter No. 138 (Vidhi) dated 17/03/2015
(Annexure-9) and letter bearing memo No. 364 dated
20/07/2015 (Annexure-9/1) issued by the Director,
Primary Education, Human Resource Development,
Government of Jharkhand whereby and whereunder
he has directed its office to calculate the amount of
arrear salary for the period of 16/05/2001 till his
readjustment (03/03/2008) on the basis of reduced
minimum pay which was granted to him at the time of
readjustment. By the impugned Letter petitioner was
neither granted any annual increment nor any
allowances applicable to the Government servant
which itself is illegal, unjust, void ab-iniotio."
2. The brief facts of the case as per the pleading made
in the writ petition which are required to be enumerated,
read hereunder as :-
It is the case of the petitioner that in the year of
1978, the central Government with a view to impart literacy
to illiterate of age group of 15 to 35 years living in rural
areas adopted a scheme known as Adult Education
Programme. In compliance of the said scheme different
Adult Education Programmes were started all over the
country including the state of Bihar with the effect from 2nd
October 1975.
3. The State Government, in order to implement the
Scheme, needed persons for office work as well as for the
field work. The State Government constituted a High power
committee and also prescribed norms and ability to fill up
the posts in Supervisor/Clerk/Peon in Adult Education
Project. Accordingly, from 1978 to 1996 in different stages,
advertisement were published in the daily newspapers and
after obtaining the application and holding interview, panel
of successful candidates were prepared and the petitioners
along with others were appointed on regular pay scale in
different phases by the order of State Government, on the
recommendation of Constituted Committee.
4. The petitioner, before joining Adult Education
Programme, was initially appointed on the post of
Chowkidar and was posted in the 9th Bihar Battalion,
National Cadet Corps, Monghyr where he had joined on
15.06.1976. Thereafter, he joined Adult Education
Programme on 19.03.1980 and he was given posting in
Kathikund, Santhal Pargana as a peon.
5. In 1987, the petitioner was transferred to Adult
Education Office, Taljhari District-Dumka (now Sahebganj)
and he remained there as a peon till he was declared
surplus on 15.05.2001.
6. It is the further case of the petitioner that by a press
release given by the Director, Primary Education and Mass
Education vide PR-430 (Shiksha 6) 2001-02 the Non-Formal
Education Programme was abolished with effect from
16.05.2001 and by this notification the petitioner including
other persons working under Adult-cum-Non Formal
Education Programme became surplus but they were
neither retrenched nor terminated.
7. The department of Human Resource Development,
Jharkhand, however, vide Notification dated 31.01.2002
decided to scrutinize all the surplus employees of non-
formal Cum-Adult Education and requested to respective
persons to submit the complete Bio-data in given Performa.
8. Pursuant to said advertisement, the petitioner has
submitted his bio-data. When the petitioner and other
similarly situated persons were not taken into the service,
numbers of petitions were filed in this High Court
demanding readjustment of their services to any suitable
and equivalent post in any department of Government of
Jharkhand. They also demanded their arrear salary from
the date they were declared surplus, i.e., on 16.05.2001 till
their readjustment.
9. During the pendency of the writ petitions, the State
of Jharkhand has taken a policy decision dated 30.05.2007
issued by the department of Human resource Development,
Government of Jharkhand by which petitioner with other
similarly situated employee were adjusted among nine
different departments of Government of Jharkhand.
10. The petitioner was adjusted/absorbed on the post of
Peon in the Office of Commissioner Commercial Taxes,
Sahebganj Circle, Sahebganj under Ministry of Commercial
Tax Department, Government of Jharkhand.
11. In the meantime, some employees have got the age
of superannuation before the policy decision of the state for
readjustment. The Court has considered those cases and
passed the order regarding payment of salary accumulated
since 16.05.200l till the date of their superannuation and
also granted the pensionary benefits.
12. It is the case of the petitioner that in the aforesaid
circumstances, the petitioner is entitled to full arrear salary
on the basis of the pay scale which was available to him on
15.05.2001 when he was declared surplus. The petitioner is
entitled to the amount of Rs. 5,35,000/- against the arrear
salary from 16.05.2001 till the date of readjustment on
03.03.2008 in Commercial Tax Department but the
petitioner has not been paid that amount.
13. The petitioner has been paid the partial amount
that is Rs.4,00,000/-only and balance amount of Rs.
1,35,000/- is still due.
14. It is the further case of the petitioner that since the
petitioner has been appointed after completing all required
procedure of law for appointment, he is entitled for the
retiral benefits such as pension, gratuity, group insurance,
general provident fund amount and leave encashment etc.
and, therefore, the order of the Joint Commissioner,
Commercial Taxes, Government of Jharkhand issued memo
No. 1326 Ranchi dated 04.03.2013 refusing to grant the
retiral benefits such as pension, gratuity, group insurance,
general provident fund amount and leave encashment etc.
to the petitioner even after continuous service of 36 years is
illegal and liable to be set aside.
15. The sole contention raised by the petitioner that
since he was working in National Cadet Corps (NCC) and
subsequent thereto his services have been placed to the
Non-Formal Education Programme and due to the closure of
the Non-Formal Education Programme, the writ petitioner
has been absorbed in service with a condition that he will
not claim any protection of salary and the past service as
per condition Nos. 11 and 12 of the order of absorption.
But, since he was working under the NCC, hence, condition
stipulated under Clause 11 and 12 will not be applicable,
reason is based upon the Full Bench judgment of this Court
passed in Bholanath Hansda @ Bhola Hansda v. The
State of Jharkhand and Others reported in 2017 (3) JCR
795 (Jhr.) (F.B.) as per paragraph 48 thereof.
16. On the other hand, Mr. Mrinal Kanti Roy, learned
G.A.-I appearing for the State, has seriously disputed the
contention raised by the petitioner by taking the ground
that once the service of the petitioner has been absorbed
with the condition that he will not claim any protection
either of the salary or the past service, then he cannot be
allowed to take advantage of the part of the order of
absorption and make prayer for discarding the condition
stipulated under Clause 11 and 12. Therefore, prayer has
been made that the past service, in the facts and
circumstances, cannot be counted.
17. Moreover, the aforesaid issue has also been decided
by the Hon'ble Apex Court in the case of Parmeshwar
Nanda and Others v. State of Jharkhand through Chief
Secretary and Others reported in (2020) 12 SCC 131.
18. This Court, having heard learned counsel for the
parties and on appreciation of rival submission, is of the
view that the issue which requires consideration is as to
whether the condition of absorption as under Clause 11 and
12 to the effect that the past service will not be counted for
the pensionary benefit or even the salary cannot be claimed
the moment the decision of absorption will be accepted by
the concerned by treating the said absorption as fresh
appointment.
19. The reference of the judgment rendered by the Full
Bench of this Court in the case of Bholanath Hansda @
Bhola Hansda v. The State of Jharkhand and Others
reported in 2017 (3) JCR 795 (Jhr.) (F.B.) (Supra) as under
paragraph 48.
20. This Court has perused the aforesaid paragraph of
the said judgment, for ready reference, the same is being
referred hereunder as :-
48. The question referred before this larger Bench is
answered accordingly. However, as has been noted
earlier, cases of individual petitioners in WPS Nos.
2458/2008, 3660/2009, 4702/2009 and 4963/13
who claim to have been appointed in government
service prior to start of Adult Education Project in the
year 1978 have to be dealt with by the appropriate
Bench on the basis of their individual facts. Rest of
the writ petitions are disposed of in the light of the
aforesaid decision."
21. Learned counsel for the petitioner wants to take
advantage basing upon the aforesaid observation made in
paragraph 48 that since he was appointed in NCC and
irrespective of the condition stipulated in the order of
absorption, even though said absorption is to be treated as
the fresh appointment, he will be deemed to be in service as
if he has discharged his duties while working as employee of
NCC.
22. The aforesaid judgment has travelled to the Hon'ble
Apex Court wherein the relevant is paragraph 26 which is
on consideration of order of absorption as under Clause 11
and 12 by which it has been stipulated that while making
absorption one or the other employees will not claim the
benefit of past service as also the pay protection and they
will be treated to be fresh appointees, for ready reference
Clause 11 and 12 of the absorption order are being referred
hereunder as :-
"11. अतिरे क कतमिय ों का समाय जन नई तनयुक्ति समझी जायगी िथा
अतिरे क ह ने के पूर्ि की सेर्ा के आधार उन्हें र्रीयिा का लाभ अनुमान्य
नहीों ह गा।
12. इन अतिरे क कतमिय ों क र्ेिन सोंरक्षण का लाभ प्राप्त नहीों ह गा।"
23. The Hon'ble Apex Court while dealing with the said
condition in the case of Parmeshwar Nanda and Others v.
State of Jharkhand through Chief Secretary and
Others (Supra) at paragraph 26 has come to a finding that
once the appointment has been treated to be fresh
appointment, the concerned employee will relinquish his
right to claim the benefit of past services for the purpose of
pensionary benefit since it is a fresh appointment, for ready
reference, paragraph 26 of the aforesaid judgment is being
referred hereunder as :-
"26. Since the appellants were absorbed as fresh appointees
without pay protection and seniority, as a consequence thereof,
they will not be entitled to count their past service rendered
under the Project for the purpose of pension. We, thus, do not
find any error in the order [Bholanath Hansda v. State of
Jharkhand, 2017 SCC OnLine Jhar 1387 : (2017) 3 AIR Jhar R
280] passed by the High Court which may warrant interference
in the present appeals. Accordingly, the appeals are dismissed."
24. Otherwise also, if any document is being accepted,
its acceptance cannot be in piecemeal, i.e., decision which
suits the party will be accepted and the decision which will
not suit the party will not be acceptable is on the principle
that there is no principle of approbation and reprobation,
reference in this regard may be made to the judgment
rendered by Hon'ble Apex Court in the case of R. N. Gosain
v. Yashpal Dhir, (1992) 4 SCC 683 wherein at paragraph
10 it has been observed which is being quoted and referred
hereunder as :-
"10. Law does not permit a person to both approbate
and reprobate. This principle is based on the doctrine
of election which postulates that no party can accept
and reject the same instrument and that "a person
cannot say at one time that a transaction is valid and
thereby obtain some advantage, to which he could
only be entitled on the footing that it is valid, and
then turn round and say it is void for the purpose of
securing some other advantage". [See:Verschures
Creameries Ltd. v. Hull and Netherlands Steamship
Co. Ltd. [(1921) 2 KB 608, 612 (CA)] , Scrutton, L.J.]
According to Halsbury's Laws of England, 4th Edn.,
Vol. 16, "after taking an advantage under an order
(for example for the payment of costs) a party may be
precluded from saying that it is invalid and asking to
set it aside". (para 1508)"
25. In State of Punjab and Ors. v. Krishan Niwas,
AIR 1997 SC 2349 the Hon'ble Apex Court at paragraph-4
has laid down that once the employee has accepted the
correctness of the order and then acted upon it, the same
cannot be questioned by the concerned.
26. In Suzuki Parasrampuria Suitings Private
Limited vs. Official Liquidator of Mahendra
Petrochemicals Limited (In Liquidation) and Ors.,
(2018) 10 SCC 707 the Hon'ble Apex Court at paragraphs
12 & 13 has laid down which reads as hereunder:-
"12. A litigant can take different stands at different
times but cannot take contradictory stands in the
same case. A party cannot be permitted to approbate
and reprobate on the same facts and take
inconsistent shifting stands. The untenability of an
inconsistent stand in the same case was considered
in Amar Singh v. Union of India [Amar Singh v. Union
of India, (2011) 7 SCC 69], observing as follows: (SCC
p. 86, para 50)
"50. This Court wants to make it clear that an
action at law is not a game of chess. A litigant
who comes to court and invokes its writ
jurisdiction must come with clean hands. He
cannot prevaricate and take inconsistent
positions."
13. A similar view was taken in Joint Action
Committee of Air Line Pilots' Assn. of India v. DGCA
[Joint Action Committee of Air Line Pilots' Assn. of
India v. DGCA, (2011) 5 SCC 435] , observing: (SCC
p. 443, para 12)
"12. The doctrine of election is based on the
rule of estoppel--the principle that one cannot
approbate and reprobate inheres in it. The
doctrine of estoppel by election is one of the
species of estoppels in pais (or equitable
estoppel), which is a rule in equity.
...
Taking inconsistent pleas by a party makes its
conduct far from satisfactory. Further, the parties
should not blow hot and cold by taking inconsistent
stands and prolong proceedings unnecessarily."
27. This Court, having discussed the aforesaid factual
aspect along with the legal position, is of the view that the
petitioner is not entitled to claim the benefit of past services
rendered based upon the reason referred hereinabove.
28. Accordingly, the instant writ petition stands
dismissed.
(Sujit Narayan Prasad, J.)
Birendra /A.F.R.
