Jharkhand High Court
Naresh Prasad vs State Of Jharkhand & Ors on 22 February, 2013
Equivalent citations: 2013 (3) AJR 344
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
W.P.(S) No. 3252 of 2002
[An application under Article 226 of the Constitution of India]
Naresh Prasad ... ... ... Petitioner
Versus
1. The State of Jharkhand
2. Secretary, Animal Husbandry Department, Jharkhand, Ranchi.
3. Regional Director, Animal Husbandry Department,
North Chhotanagpur, Hazaribagh.
4. District Animal Husbandry Officer, Giridih.
5. The State of Bihar.
6. Secretary, Animal Husbandry Department,
Bihar, Patna.
7. Director, Animal Husbandry Department,
Bihar, Patna.
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For the Petitioner : M/s. Sujit Narayan Prasad,
: Mr. R. Prasad, Advocates
For the Respondents : G.P. IV
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court 1. The petitioner has filed writ petition seeking quashing
of order dated 12.10.2001 whereby his service has been
terminated w.e.f. 12.10.2001.
2. It is stated in the writ petition that the petitioner was
appointed on 27.8.1991 in Grade-IV in the Animal Husbandry
Department and thereafter he has been discharging his duty
regularly. However, as the petitioner was not paid his salary,
he moved the High Court in C.W.J.C. No. 25 of 2001 which
was disposed of by order dated 5.1.2001 in the following
terms:
"Following the decision in the case of Pradeep
Kumar Pandey and others(supra), I also give
liberty to petitioner to file representation before
the Regional Director, Animal Husbandry
Department, Hazaribagh giving details relating
to his appointment place of posting and the
period for which prayer made for payment of
salary.
On receipt of such representation, the authority
will determine the claim and pass reasoned
order within two months and if any amount is
-2-
found payable, to be paid within 3 months from
the date of such decision.
It will be open to the authority to look into the
legality and propriety of appointment of
petitioner."
3. In terms of above direction of the High Court, the
petitioner submitted representation on 19.2.2001 contending
that Regional Director, Animal Husbandry Department was
empowered to make appointment in Grade-IV prior to
28.10.1991and since the petitioner was appointed on 27.8.1991 by the Regional Director, Animal Husbandry Department, he has been validly appointed and therefore he is entitled for payment of salary etc. However, as the petitioner was not paid his salary he moved Contempt(C) No. 648 of 2001 which was disposed of on 15.6.2002 and the proceeding was dropped. In the meantime by order dated 12.10.2001 the service of the petitioner was terminated on the ground that his appointment was illegal. The petitioner has challenged the said order by filing the present writ petition. When the matter was listed on 18.2.2003 the learned counsel for the respondent was directed to file a supplementary counter-affidavit annexing a copy of show-cause notice given to the petitioner before passing the impugned order.
4. The respondents have filed counter-affidavit and supplementary counter-affidavit as directed by the Court on 18.2.2003. The show-cause notices dated 8.10.1998 and 14.8.2001 have been brought on record. The respondents have stated that the appointment of the petitioner along with others was made by the then Regional Director, Animal Husbandry Department who was made an accused in the Fodder Scam case. The appointment of the petitioner was without following the procedure and guidelines besides being in excess of the sanctioned strength. It has further been stated that no advertisement was issued, no interview letter was issued nor Selection Committee was constituted and the -3- reservation rules were not followed. The petitioner has filed a rejoinder-affidavit controverting the statements made in the counter-affidavit and the supplementary counter-affidavit.
5. Heard counsel for the parties and perused the documents on record.
6. The petitioner has based his case on the ground that he was appointed by the Regional Director, Animal Husbandry Department prior to 28.10.1991 and therefore he was validly appointed in the Grade-IV by the Regional Director. The letter of appointment of the petitioner dated 27.8.1991 would disclose that his appointment was purely temporary and it was liable to be terminated without any notice. The respondents have taken a stand that such appointment was illegal and the person who made the appointment, the Regional Director has been made an accused in the Fodder Scam case. It appears from the record of the case that the petitioner was issued show-cause notice on 8.10.1998 whereby he was informed that his service was irregular and illegal. The petitioner, it does not appear that submitted any reply to show-cause notice dated 8.10.1998.
7. The learned counsel for the petitioner has raised a plea that the service of the petitioner has been terminated without giving any show-cause notice to him. By supplementary counter-affidavit filed on behalf of the respondents, the show-cause notice dated 14.8.2001 has been brought on record. It is clear from the show-cause notice dated 14.8.2001 that such notice was issued in view of order passed by the High Court in C.W.J.C. No. 25 of 2001. On a perusal of order dated 5.1.2001 passed in C.W.J.C. No. 25 of 2001, I find that the respondents were permitted to decide the claim of the petitioner and also to look into the legality of the appointment of the petitioner. The learned counsel for the petitioner has denied that such show-cause notice was served upon the petitioner. I am unable to accept the stand taken by the learned counsel for the -4- petitioner. In view of the earlier show-cause notice dated 8.10.1998 and order dated 5.1.2001 passed in C.W.J.C. No. 25 of 2001, there is no reason to disbelieve issuance of show-cause notice dated 14.8.2001 by the respondents to the petitioner.
8. Learned counsel for the petitioner has next contended that the petitioner is at least entitled to know the reason for termination of the service and by subsequent affidavit reasons cannot be supplemented. He relied upon judgment of the Hon'ble Supreme Court in the case of "Mohinder Singh Gill and another Vs the Chief Election Commissioner, New Delhi and others" reported in (1978)1 SCC 405 and in the case of "East Coast Railway and Another Vs. Mahadev Appa Rao and others" reported in (2010) 7 SCC 678. The learned counsel has relied upon para 8 of the judgment in the case of "Mohinder Singh Gill and Another" which is extracted below,
8."The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out."
9. I find that reliance of the counsel for the petitioner on the judgments in the case of "Mohinder Singh Gill" and "East Coast Railway " is misplaced. It has been held by the Hon'ble Supreme Court that the order of a statutory functionary has to be examined in the light of reasons mentioned in the order and the reasons which are not appearing in the order cannot be supplemented by way of affidavit adding fresh reasons. The present is the case of illegal appointment. The petitioner was issued show-cause notices dated 8.10.1998 -5- and 14.8.2001, though there is no requirement in law to give show-cause notice in case of illegal appointment.
10. In a case of persons not possessing prerequisite qualification prescribed by statutory rules who were wrongly selected and after successful completion of training were appointed, the Hon'ble Supreme Court has held in the case of "State of M.P. and others. Vs. Shyama Pardhi and others"
reported in (1996) 7 SCC 118, that principles of natural justice is not attracted in case of termination of their appointment.
11. In the case of "State of Manipur and others Vs. Y. Token Singh and others" reported in (2007) 5 SCC 65, where the appointments were made without following any procedure, without knowledge of the department and without maintaining any record and not by any competent authority and such appointments were cancelled by the Government, the Hon'ble Supreme Court has held,
17. "If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fides.
18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature -6- of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange."
12. The petitioner has been specifically informed by show-cause notice that his appointment was illegal. However, the petitioner has not brought on record any evidence justifying his appointment allegedly made by the Regional Director, Animal Husbandry Department. There is nothing on record to even indicate that the petitioner after his so-called appointment continued in service prior to termination of his service.
13. In view of aforesaid, I do not find any merit in the writ petition and accordingly the writ petition is dismissed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated the 22nd February, 2013 shanant/N.A.F.R.