Jharkhand High Court
State Of Jharkhand And Anr. vs Km. Suman And Ors., Pramilla Kumari, ... on 3 March, 2003
Equivalent citations: [2003(2)JCR171(JHR)], (2003)IIILLJ951JHAR, 2003 LAB. I. C. 2104, 2003 AIR - JHAR. H. C. R. 582, (2006) 3 JLJR 378, (2003) 3 LABLJ 951, (2003) 2 JCR 171 (JHA), (2003) 3 CURLR 237, (2007) 1 JLJR 560
Author: Hari Shankar Prasad
Bench: Hari Shankar Prasad
JUDGMENT Hari Shankar Prasad, J.
1. Since in all the appeals filed under Section 10 of the Letters Patent, similar question of law and facts are involved, these appeals have been heard together and are being disposed of by this common judgment.
2. All these appeals have been filed on behalf of the State of Jharkhand challenging the judgment dated 7th October. 2000, whereby writ petitions filed by the writ petitioners were allowed and order dated 2.2.2000 passed by respondent-Director, Primary Education Department, Secondary, Primary and Adult Education, Bihar (now Jharkhand) was quashed.
3. It appears that services of the respondents were terminated by order dated 2.2,2000 and by the impugned order dated 7th August, 2000 services were reinstated and order dated 2.2.2000 terminating their services was quashed.
4. Sri A.K. Mehta, learned counsel appearing for the appellants, submitted that services of the respondents were rightly terminated by the Director, Primary Education Department, Secondary, Primary and Adult Education, Bihar. Patna on the ground that they were wrongly appointed on their respective posts and by the impugned judgment passed in the case of Mathura Prasad Dhibar (CWJC No. 2736 of 1998(R)) there was a direction to re- open the cases of these writ petitioners and to find out whether their appointment is in accordance with law or not and pursuant to the direction contained in the judgment passed in CWJC No. 2736 of 1996(R) the cases of writ petitioners were re-opened and Director, Primary Education finding their appointment to be illegal, terminated their services. It was pointed out that it is within the competence of the Director, Primary Education to re- open the cases of the writ-petitioners while making inquiry of similar matter as because the appointment of writ-petitioner were not in accordance with law. It was also pointed out that the learned Single Judge failed to appreciate the decision of the Establishment Committee with regard to the appointment of writ-petitioners that the appointments were not done in true spirit of Rules, 1991 and while inquiring into the matter by the Director, Primary Education, it was discovered that appointment of the petitioners and similar persons were made in contravention of Rules, 1991 and amended Rules, 1993. It was in the context of the direction passed by the Hon'ble Court in CWJC No. 2736 of 1998(R) that Director, Primary Education examined the entire cases including the case of the petitioners and after giving them show-cause notice found that appointments were made in contravention of rules and, therefore, the Director rightly passed the impugned order on 2.2.2000. It was also pointed out that the original panel prepared district wise for appointment of Assistant Teachers in Primary School in different districts in the State of Bihar was challenged in the case of Anil Kumar v. The Chief Secretary, reported in 1981 PLJR 846 and the said panel was declared to be unconstitutional and, respondents were accordingly restrained from making any further appointment from the panel prepared for different districts and the Hon'ble Single Judge failed to appreciate that the said panel was cancelled. The Hon'ble Single Judge has also failed to appreciate the fact that after promulgation of appointment Rules, 1991 and amended Rules, 1993 the appointment to the post of elementary teachers was to be made on the recommendation of the BPSC, Patna. The Hon'ble Single Judge has also failed to appreciate the fact that the petitioners could have been appointed on the basis of panel prepared in 1986-88. It was also pointed out that the Hon'ble Single Judge failed to appreciate the case of Sabita Prasad v. State of Bihar and Ors., reported in 1994 (1) PLJR 62 and the case of Binod Kumar Tiwari v. State of Bihar and Ors., reported in 1995 (2) PLJR 273 and according to these two cases, services of the petitioners were rightly terminated. The Director, Primary Education, after proper enquiry, found that the District Establishment Committee was not competent to give appointment letters to the petitioners," as the same was in contravention of the Appointment Rules, 1991 and amended Rules, 1993. It was also submitted that cancellation of the appointment of the petitioners was valid and in line of the direction of this Hon'ble Court. It was also submitted that case of Mathura Prasad Dhibar is similar to the case of the writ petitioners and there was a direction to the Director, Primary Education to re-open the case of the writ petitioners and cancel the appointments made in 1996 but learned Single Judge held that case of Mathura Prasad Dhibar, (supra) is not similar to the case of the writ petitioners and that there was no direction to re-open the case of the writ petitioners and cancel their appointments made in 1996. It was also submitted that it has to be considered that a panel prepared in 1988-89, which remains valid for one year only, can appointment be made, on the basis of the panel prepared in 1988-89 remaining valid up to 1989-90, in the year 1996.
5. Respondents-writ petitioners have appeared and filed their counter affidavit. Learned counsel for the respondents submitted that an advertisement was published in 1985, a panel was prepared in 1989 and when writ petitioners, whose names were on the panel but they were refused appointment on the ground that they failed to provide residential certificates of the districts, on the panel of which districts their names were appearing and further that persons below them on the panel were appointed, then they filed writ petitions and by the order of the Court they were appointed. It was also pointed that case of Mathura Prasad Dhibar does not apply in their case as that case is not identical to their case and there was no direction to re-open the case of the writ petitioners and cancel their appointments. It was also submitted that Rules, 1991 and amended Rules, 1993 were considered and thereafter their appointments were made. It was also submitted that the panel, which was prepared in 1988-89, remained effective till 1989-90 but CWJC No. 1153/90 was filed in the year 1990 and this CWJC was tagged with other writ petitions filed subsequently and, therefore, all those writ petitions were heard together and a common judgment was passed in the year 1996, hence there was no violation so far as the appointment on the basis of panel prepared in 1988-89 is concerned.
6. It is true that Director, Primary Education, reopened the cases in the light of so-called decision passed in Mathura Prasad Dhibar's case and examined the cases of writ-petitioners and cancelled their appointments. The learned Single Judge, while examining the matter, came to a finding that there was no such direction in Mathura Prasad Dhibar's case to the Director, Primary Education to reopen the cases and examine their matter. The learned Single Judge further found that these writ petitioners were not parties in Mathura Prasad Dhibar's case and, therefore, whatever directions were given, were not binding on these writ petitioners as well as there was no such direction. The findings of the learned Single Judge is quoted hereinbelow :--
"While dismissing the writ petition filed by Mathura Prasad Dhibar and others, this Court never issued any direction to the respondents to reconsider the appointment of the present writ petitioner and to cancel the same and such direction was rightly not issued as the present writ petitioner was not a party in CWJC No. 2736/98(R). In spite of the fact that there was no such direction to the Director, Primary Education in the judgment of Mathura Prasad Dhibar's case (CWJC No. 2736/98(R)), it is rather surprising as to how the Director, Primary Education, on the basis of aforesaid order, reopened the case of the present writ petitioner, who was appointed in 1996 by a decision taken by the District Education Establishment Committee on the basis of direction issued by this Court in the judgment referred to hereinabove. In my opinion, therefore, the case of the present writ petitioner is neither similar to the case of Mathura Prasad Dhibar and others nor there was any direction to the Director, Primary Education to re-open the case of the present writ petitioner and to cancel her appointment made in 1996. In that view of the matter, in my opinion, the impugned order cancelling the appointment of the petitioner cannot be sustained in law."
7. The learned Single Judge examined the cases of other writ petitioners in the light of decision in Mathura Prasad Dhibar's case and found that the cases of other writ petitioners are not covered by the decision in Mathura Prasad Dhibar's case and, therefore, came to a finding that cancellation of their appointments was illegal and without jurisdiction. The learned Single Judge also found that Rules, 1991 and amended Rules, 1993 were complied with and thereafter District Establishment Committee had made appointments of these writ petitioners.
8. On hearing we find that the cases of these writ petitioners were not to be reopened because there was no such direction in Mathura Prasad Dhibar's case to reopen the cases of all these writ petitioners and to cancel their appointments. We also find that the writ petitioners were not parties in Mathura Prasad Dhibar's case and there was no such direction to reopen the matter and to examine the same. Thus, the Director, Primary Education exceeded his jurisdiction in the name of direction of this Court passed in the case of Mathura Prasad Dhibar and cancelled their appointments, which was illegal and without jurisdiction.
9. So far as the point regarding appointment on the basis of a panel prepared in 1988-89 in the year 1996 is concerned, it was submitted on behalf of the learned counsel for the appellant that life of the panel had already expired and no appointment could have been made. The learned Single Judge also examined this matter in the case of Parmila Kumari in CWJC No. 1153/90. It appears that her name was in the panel and when she was not appointed on the ground that she failed to furnish residential certificate of Dhanbad, on the panel of which district her name was appearing, she immediately filed a writ petition and her case was tagged with other writ petitions filed in this case and her writ petition was finally disposed of in the year 1995 and subsequently she was appointed in the year 1996. It is not a case of extension of life of the panel but it is a case in which discriminations were made and persons below writ petitioners in the panel were appointed. The writ petitioners being above in the panel of those appointed persons and thus they were discriminated against and in such a situation, in order to give proper relief to the persons discriminated against, Court has to interfere and give proper relief to the persons discriminated against. It is a case of violation of principles of natural justice as well as fundamental rights and in such a situation, the Court has to interfere and give proper relief to the writ petitioners.
10. We do not find any merit in these LPAs and they are accordingly dismissed.