Jharkhand High Court
Jitendra Kumar Mahto vs Vice Chancellor on 14 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3317 of 2016
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Jitendra Kumar Mahto, son of Late Punit Mahto, resident of Ranchi University Campus, P.O. G.P.O., P.S. Kotwali, District Ranchi.
... Petitioner Versus
1. Vice Chancellor, Ranchi University, having its office at Ranchi University Campus, P.O. G.P.O., P.S. Kotwali, District Ranchi.
2. Registrar, Ranchi University, having its office at Ranchi University Campus, P.O. G.P.O, P.S. Kotwali, District Ranchi.
3. Controller of Examination, Ranchi University, Ranchi University, having its office at Ranchi University Campus, P.O. G.P.O., P.S. Kotwali, District Ranchi.
4. Officer Incharge, Kotwali Police Station, Near Sahid Chowk, P.O. G.P.O., P.S. Kotwali, District Ranchi.
...Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Arpan Mishra, Advocate Mr. Amitabh Prasad, Advocate For the Respondents : Mr. Amit Kumar Sinha, Advocate
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04/14.08.2018 The petitioner is aggrieved of order dated 03.05.2016 by which his appointment as Grade-IV employee under the respondent-Ranchi University has been cancelled by the respondent-Vice-Chancellor.
2. Stand of the petitioner is two-fold; (a) petitioner's appointment vide Notification dated 26.04.2016 is not provisional or ad-hoc, rather he was appointed on permanent basis and while so, without initiating a regular departmental enquiry his appointment cannot be cancelled and, (b) in view of various decisions by the High Courts prohibition contained under Government letter dated 01.12.2015 for appointment of dependant of a missing employee on compassionate grounds is illegal and cannot be relied on by the respondent-Ranchi University to cancel otherwise valid appointment of the petitioner.
3. Briefly stated, petitioner's father who was a permanent 2 employee under the respondent-Ranchi University was missing since 08.07.2008, when he had left home for pilgrimage. On 19.07.2008 a missing report was lodged with Officer Incharge, Kotwali Police Station, and information in this regard was also given to the Ranchi University; Finance Officer and the Vice-Chancellor, on 25.07.2008 and 26.07.2008. About 7 years thereafter Officer Incharge of Kotwali Police Station, Ranchi informed the Sub-Divisional Officer, Sadar, Ranchi that in spite of search and enquiry petitioner's father could not be traced. Thereafter an application was submitted by mother of the petitioner for his appointment on compassionate grounds. This application was supported by an affidavit dated 14.07.2015 sworn by his mother. The petitioner along with six other persons were appointed on compassionate grounds vide Notification dated 26.04.2016. Now his appointment has been cancelled on the ground that in the Government letter dated 01.12.2015 there is no provision for appointment of dependant of a missing employee on compassionate ground.
4. Stand taken by the respondent-Ranchi University is that an administrative mistake can be corrected at any stage.
5. In the first place, it is necessary to record that petitioner's stand that without a show-cause notice his appointment has been cancelled vide office order dated 03.05.2016 - paragraph no. 17 of the writ petition - has not been controverted by the respondent-Ranchi University in its counter-affidavit (paragraph no. 15). All that the respondents have done is to justify cancellation of appointment of the petitioner on the ground that within few days of his appointment when it was detected that there is no provision in the Government letter dated 01.12.2015 for compassionate appointment to a dependant of a missing employee, petitioner's appointment was cancelled.
6. No doubt, an administrative mistake can be corrected at any stage, however, the authority must show the circumstances under which a mistake in decision making crept in and how that mistake was detected by the authority. Notification dated 3 26.04.2016 by which the petitioner and others were appointed takes note of Government letter dated 01.12.2015 and thus they cannot take a plea that the aforesaid notification was not within their knowledge when Notification dated 26.04.2016 was issued. This notification indicates that petitioner's appointment is permanent, only condition attached to his appointment is that he shall look after the family. He is otherwise eligible and possesses requisite qualifications. In the above facts without a show-cause notice petitioner's appointment could not have been cancelled. Even in cases where on admitted facts, without any dispute, it is found that the appointee does not possess requisite minimum educational qualification, his appointment cannot be cancelled without show-cause notice; a regular departmental enquiry may not be initiated but a show-cause notice is the minimum requirement in law. In my opinion, on the ground that the petitioner's appointment has been cancelled in breach of the rules of natural justice the impugned order dated 03.05.2016 is liable to be quashed.
7. On merits also it is found that the petitioner is entitled for his appointment on compassionate grounds. This Court in a series of orders one being "Bijay Kumar Pradhan Vs. State of Jharkhand and Others" reported in 2014 (1) JLJR 33 has held that no distinction between civil death and natural death can be drawn for declining compassionate appointment to a dependant of the missing employee. In those cases stand taken by the respondent-State was founded on Government Circular dated 22.01.2008 which is similar to clause 3 of the scheme for compassionate appointment contained under letter dated 01.12.2015. It is admitted at Bar that one of such cases has travelled upto the Supreme Court and order passed by this Court has been affirmed by the Supreme Court ["Podin Devi Vs. M/s Central Coalfields Limited" {W.P.(S) No. 4946 of 2011} and "M/s Central Coalfields Limited Vs. Podin Devi" {L.P.A No. 150 of 2014}].
8. It is really a matter of some concerned that in spite of judicial pronouncements by which the "issue" stands concluded 4 the respondent-State continues to insist on their invalid Circulars/Guidelines/Notifications. It is high time when the authorities must take a serious note of such inconsistency in the stand of the State in the judicial proceedings.
9. Now coming to the facts of the case a missing report was lodged on 19.07.2008 and Officer Incharge of Kotwali Police Station, Ranchi vide its letter dated 23.06.2015 has informed the Sub-Divisional Officer, Sadar, Ranchi that in spite of search and enquiry petitioner's father could not be traced. Section 108 of the Indian Evidence Act, 1872 provides that if a person is not heard of 7 years the burden to prove whether a man is alive or dead is on those who would naturally have heard of him if he had been alive. The petitioner has produced copies of letter dated 19.07.2008, 23.06.2015 and mother of the petitioner has sworn affidavit dated 14.07.2015 to plead civil death of her husband. The respondent-Ranchi University has paid all admissible post-retiral benefits which were payable to the father of the petitioner and, therefore, it must be construed in law that the respondents themselves admit that father of the petitioner has met with a civil death. In view of the judgments of this Court cancellation of petitioner's appointment on the ground that under clause (3)(iii) of the scheme for compassionate appointment as contained in letter dated 01.12.2015 appointment on compassionate ground to dependant of a missing employee cannot be granted is held illegal and accordingly, it is quashed. Petitioner shall be reinstated in service forthwith.
10. The writ petition stands allowed.
(Shree Chandrashekhar, J.) Amit/