Jharkhand High Court
The State Of Jharkhand Through The ... vs Ganesh Prasad Singh Son Of Late Ram Sakal ... on 3 February, 2020
Equivalent citations: AIRONLINE 2020 JHA 1280
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 168 of 2019
1.The State of Jharkhand through the Principal Secretary, Department of
Forest, Environment & Climate Change, Government of Jharkhand, Nepal
House, Doranda, P.O. & P.S-Doranda, District-Ranchi.
2.The Principal Chief Conservator of Forest, Jharkhand, Ranchi, P.O. & P.S-
Doranda, District-Ranchi. ....... Appellants/Respondents
Versus
1.Ganesh Prasad Singh Son of Late Ram Sakal Singh, Resident of C/52,
Forest Colony, P.O. & P.S-Doranda, District-Ranchi.
...... Respondent/Writ petitioner
2.The Principal Secretary, Personnel, Administrative and Raj Bhasa
Department, Government of Jharkhand, P.O. & P.S-Dhurwa, District-
Ranchi.
3.The Principal Secretary, Department of Planning and Finance,
Government of Jharkhand, P.O. & P.S-Dhurwa, District-Ranchi.
4.The Accountant General, Jharkhand, P.O. & P.S-Doranda, District-Ranchi.
......... Respondent/Performa Respondent
---------
CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
----------
For the Appellants : Mr. Atanu Banerjee, Sr. S.C-III : Mr. Ashwini Bhushan, A.C to Sr. S.C-III For the Respondent No.1 : Mr. Rahul Kumar, Advocate For the Accountant General: Mr. Suresh Kumar, Adv.
-----------
Oral Judgment:
Order No.10/Dated: 3rd February, 2020 I.A. No.3197 of 2019 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 95 days in preferring this Letters Patent Appeal.
2. Heard.
3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation.
2
4. Accordingly, I.A. No.3197 of 2019 is allowed and delay of 95 days in preferring the appeal is condoned.
L.P.A. No.168 of 2019
5. The instant intra Court appeal has been filed under Clause 10 of the Letters Patent directed against the judgment dated 04.10.2018 passed in W.P.(S) No.4848 of 2017, whereby and whereudner the order/decision as contained in office order dated 30.01.2017 as also the order dated 15.03.2017 have been held to be unsustainable and in consequence thereof, the writ petitioner has been held entitled for all consequential benefits and for fixation of pension in the last pay drawn by him at the time of retirement, in accordance with law.
The writ petitioner is further held entitled for the financial upgradation by granting him 2nd Assured Career Progression scheme and 3rd Modified Assured Career Progression scheme on completion of requisite length of service and fulfilling other required terms and conditions, if there is no other legal impediments. Further direction has been to refund the recovered amount in pursuance to the impugned order within a period of 8 weeks from the date of receipt/production of a copy of the order.
6. The brief facts which requires to be enumerated which is relevant for consideration of the lis involved herein reads hereunder as:
The writ petitioner was selected and recommended by Bihar Public Service Commission, in short BPSC, for the post of Typist. The Department of Personnel and Administrative Reforms, Government of Bihar, Patna vide Memo no.1225 dated 12.12.1984 allocated him to join in the office of Chief Conservator of Forest, Bihar, Ranchi with direction to the concerned department to issue appointment letter after proper verification. 3
It is the case of the writ petitioner that prior to selection and appointment of the writ petitioner as Typist, he was recommended for the post of "Personal Assistant" by the erstwhile State of Bihar vide notification dated 26.10.1983 on the basis of examination conducted by Bihar Public Service Commission, however, he was never been appointed as Personal Assistant pursuant to the said notification. The writ petitioner was appointed temporarily as Typist in the pay scale of Rs.580-860 by the then Chief Conservator of Forest, Bihar vide order dated 05.01.1985. The writ petitioner, thereafter, was appointed to the post of Steno-Typist in the enhanced pay scale of Rs.680-965 by the order of the then Chief Conservator of Forest vide office order no.293 dated 20.03.1985 and reverted to the original post of Typist vide order dated 04.06.1985.
The Chief Conservator of Forest again appointed the respondent no.1/writ petitioner vide order dated 26.08.1985 to the post of Steno-Typist and subsequently took decision to undertake some Steno-Typists in the cadre of Personal Assistant and circulated a list of that to all different Departments and Directorate of the State Government and asked for details and requisite information of the efficient Steno-Typists working under them but neither the name of the writ petitioner was circulated vide said letter nor the letter was addressed to the Department of Forest.
The petitioner, in one pretext or the other, had been allowed to continue as Steno-Typist in pursuant to the decision of the Chief Conservator of Forest dated 28.08.1987, thereafter, the designation of the post of the writ petitioner had been changed to Personal Assistant. The writ petitioner was allowed to discharge his duty as Personal Assistant but before his retirement the petitioner has been reverted to the post of Typist vide impugned order dated 30.01.2017 which has been assailed by the writ petitioner before the 4 writ Court vide W.P.(S) No.4848 of 2017 and which has been quashed by allowing the writ petition, against which the present Letters Patent Appeal has been preferred by the authorities of the State of Jharkhand.
The ground upon which the instant appeal has been filed is mainly that when the writ petitioner has not been granted any substantive appointment but worked as Personal Assistant, he has got no right to continue in such post and if he has illegally been continued upon the said post no right will be said to have accrued in his favour. Further on the ground that if any illegality has been committed by any of the authority, the competent authority has got power to rectify the same and in exercise of the said power, the order of reversion has been passed vide impugned order dated 30.01.2017 and as such the same cannot be said to be suffer from any illegality. It has further been argued that even accepting that the writ petitioner has been allowed to continue for a period of 30 years, but if any wrong has been committed on its inception, the same cannot be legalized.
7. Mr. Rahul Kumar, learned counsel for the respondent no.1/writ petitioner has defended the order passed by the writ Court by taking the ground and referring to various orders, whereby and whereunder while allowing the petitioner to work to the post of Personal Assistant on its re- designation by the Chief Conservator of Forest and simultaneously various correspondences have been made by the Chief Conservator of Forest to the Personnel and Administrative Reforms Department in the erstwhile State of Bihar, but no such decision has been taken either rejecting or allowing the recommendation made by the Chief Conservator of Forest.
He further argues that if the decision would have been taken even adverse to the interest of the writ petitioner it could be understood, but when recommendation is being made by the authority who is the immediate 5 controlling authority/departmental authority/appointing authority, it was incumbent upon the Personnel and Administrative Reforms Department to take such decision without any delay but instead of taking any decision the writ petitioner has been allowed to continue to the post of Personal Assistant and one day before the day of superannuation such decision has been taken by reverting the writ petitioner to the post of Typist which cannot be said to be correct and taking into consideration the aforesaid aspect of the matter, the learned Single Judge has passed the order by quashing the impugned decision dated 30.01.2017 which requires no interference by this Court.
8. This Court having heard learned counsel for the parties and after going across the materials brought on record as also the finding recorded by the impugned order, has found certain admitted facts in this case to the extent hereunder as:
Admittedly the writ petitioner was appointed as Typist by the Personnel and Administrative Reforms Department of erstwhile State of Bihar, duly been recommended by the Bihar Public Service Commission, however, by directing the writ petitioner to report to the office of the Chief Conservator of Forest, so that appointment letter could be issued, in terms thereof, has accepted the joining of the writ petitioner as Typist.
The Chief Conservator of Forest of the erstwhile State of Bihar vide order dated 20.03.1985 has posted the writ petitioner as Steno-Typist in the pay scale of Rs.680-965 and subsequently the post of Steno-Typist had been re-designated as Personal Assistant by the decision taken in this regard by the Personal and Administrative Reforms Department, Government of Bihar.
The case of the writ petitioner, before the writ Court, was that even though his appointment is substantively to the post of Typist on being recommended by the Bihar Public Service Commission, but since he had 6 been allowed to continue as Steno-Typist which was subsequently been re- designated as Personal Assistant by the decision taken by the Personal and Administrative Reforms Department of the erstwhile State of Bihar, therefore, he has right to continue as Personal Assistant.
While on the other hand, the case of the appellants is that when the writ petitioner was appointed as Typist, on due recommendation he had got right to continue as Typist unless promoted by following due procedure by the competent authority but admitted position herein is that the writ petitioner had never been granted promotion to the post of Steno-Typist and as such there is no question of allowing the writ petitioner to perform his duty as Personal Assistant on re-designation of post of Steno-Typist.
9. In the backdrop of the rival contention, this Court has proceeded to examine the order passed by the learned Single Judge.
It is settled position of law that in the matter of public appointment, the due procedure is required to be followed. Herein, it is admitted fact that the writ petitioner being a candidate for being considered as Typist had made an application for consideration of his candidature and the case of the writ petitioner was considered by the Bihar Public Service Commission for appointment as Typist in which he was found suitable and thereafter due recommendation had been made for his appointment as Typist.
The Personal, Administrative Reforms Department accepted the aforesaid recommendation and posted the writ petitioner to the office of Chief Conservator of Forest, Bihar, Ranchi with a direction upon the Chief Conservator of Forest, Bihar to issue appointment letter. The writ petitioner while working as Typist was allowed to continue as Steno-Typist. The post of Steno-Typist in the meanwhile was re-designated as Personal Assistant by the decision taken in this regard by the Personal, Administrative Reforms 7 Department dated 28.08.1987. The writ petitioner since was allowed to work as Steno-Typist admittedly without any promotion on substantive basis, was allowed to work as Personal Assistant, the post on which he continued to discharge his duty for 30 years. The competent authority has taken decision one day prior to his retirement by passing order of reversion to the substantive post on 30.01.2017, the writ Court has quashed the aforesaid order, inter alia, on the ground that after 30 years it is not proper for the appellants to take such decision.
Learned counsel for the writ petitioner has tried to justify that the Chief Conservator of Forest, the department where the writ petitioner was posted as Typist where he was allowed to perform duty as Steno-Typist which has subsequently been re-designated as Personal Assistant, made several correspondences before the Personal, Administrative Reforms Department for taking decision with respect to re-designation of Steno-Typist to that of Personal Assistant but no such decision has been taken, therefore, contention has been raised on behalf of the writ petitioner that no illegality has been committed on the part of the writ petitioner and as such, the order of reversion cannot be said to be justified.
10. This Court is not in agreement with such submission for the reason that when the writ petitioner has been appointed on substantive post with due recommendation of Bihar Public Service Commission as "Typist" and as such, he has no right to continue as "Steno-Typist". It is not in dispute that "Steno-Typist" is altogether a separate cadre having separate hierarchy in service.
The question which is to be decided by this Court, if the writ petitioner has been appointed as Typist, can he be allowed to be shifted to the cadre of Steno-Typist?
8
The answer of this Court would be negative as because there is no provision in the service rule to make change in the cadre and once the person has been appointed in a cadre, he will remain in the same cadre having the avenues hierarchy of promotion to the higher grade.
11. Learned counsel for the writ petitioner has failed to satisfy this Court rather he has fairly accepted that the cadre of Typist and Steno-Typist is altogether different.
Now the further question is, when the writ petitioner has illegally been allowed to work to the post of Steno-Typist, can he be allowed to work on the said post even he was allowed to work for 30 years.
The answer of this Court is in negative, it is for the reason that if any wrong has been committed at its inception the subsequent development cannot rectify the illegality committed at its inception as has been held by the Hon'ble Apex in the case of State of Orissa and Anr. vs. Mamata Mohanty reported in (2011) 3 SCC 436, at paragraph 37:
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam, Mangal Prasad Tamoli v. Narvadeshwar Mishra and Ritesth Tewari v. State of U.P)."
It is evident from the proposition laid down that if any wrong has been committed at its inception the same cannot be rectified at later stage. 9
Herein, admittedly the writ petitioner has never been appointed as Steno-Typist and as such he has got no right to remain on the said post and on re-designation of the post to that of Personal Assistant he has no right to claim the said post.
The further question, as has been argued by the learned counsel appearing for the writ petitioner that the Chief Conservator of Forest has made several correspondences to take final decision on the recommendation made by it for re-designating the post of Steno-Typist as Personal Assistant and since no decision has been taken, the writ petitioner cannot be allowed to suffer.
According to us, this argument has also got no force as because even accepting that there is recommendation by the Chief Conservator of Forest in that regard and no decision has been taken, the question is, what prevented the writ petitioner to approach before the Court of law for redressal of his grievance rather he has chosen to work without any authority of law upon the post to which he has never been appointed legally and as such he with all consciousness and naked eye discharged his duty as Steno-Typist subsequently re-designated as Personal Assistant and if the State authorities has taken decision to rectify such mistake it cannot be said to be suffered from infirmity.
Further, even accepting the argument made on behalf of the writ petitioner, even then the writ petitioner has got no right to claim the post of Steno-Typist as because his substantive appointment by the competent authority is to the post of Typist and as such the Chief Conservator of Forest, exceeding his jurisdiction, has allowed the writ petitioner to work as Steno- Typist, the post to which he has never been appointed and hence his posting to the post of Steno-Typist (re-designated as Personal Assistant) will be 10 void-ab-initio being done by the incompetent authority and without assessment of skill about shorthand.
It requires to refer herein that the cadre of "Typist" is exclusively for typing work while for the post of "Steno-Typist", the eligibility criteria for appointment is to possess the knowledge of shorthand with typing skill and it is settled that if any appointment made contrary to eligibility criteria, the same would be illegal and once it is illegal it is nullity.
This Court, is of the view that if authority has taken the decision to rectify any illegality, the same cannot be said to suffer on the basis of principle that illegality cannot be allowed to be perpetuated and the moment any illegality came to notice the same is to be rectified, if such exercise would not be taken, it would amount to perpetuating the illegality. In this regard, reference may be made to the judgment of the Hon'ble Apex Court rendered in the case of Basawaraj and Another vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81 wherein at paragraph 8 it has been held as under:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any 11 other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, Anand Buttons Ltd. v. State of Haryana, K.K. Bhalla v. State of M.P. and Fuljit Kaur v. State of Punjab.)"
12. This Court has also taken into consideration that whether there is violation of principles of natural justice, but the question is that when the fact is in admission, even if the opportunity of hearing would be provided to the writ petitioner, no purpose would have been served since it is admitted case of the writ petitioner that he has never been appointed as Steno-Typist subsequently re-designated as Personal Assistant and it is settled position of law that when the fact is not in dispute, no purpose would be served when the matter is remitted in order to provide an opportunity of hearing otherwise it will lead to futile exercise.
Reference in this regard may be made to the judgment of the Hon'ble Apex Court rendered in the case of Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P and Ors., reported in (2004) 4 SCC 281 wherein Hon'ble the Apex Court has held at paragraph 64 which is being quoted herein below:
"64.Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of land and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this regard appeal before this Court. Rules of natural justice are to be 12 followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India".
In the case of Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central Excise, Gauhati and Ors., reported in (2015) 8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below:
"39. We are not concerned with these aspect in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker."
This Court, therefore, is of the view that on the ground of principles of natural justice being not straight jacket formula in the judgment, this Court is of the view that this ground is also not sustainable.
13. In view of the facts stated hereinabove, this Court is of the considered view that the order dated 30.01.2017, to the extent pertains to the fixation of pay scale to the post of Steno-Typist (Personal Assistant on re-designation) cannot be faulted with, in consequence of such finding, the order passed by learned Single Judge of quashing and setting aside the order dated 13 30.01.2017 to the extent of fixation of pay scale of the post of Personal Assistant, is set aside.
So far as recovery part, as contained in the impugned order dated 30.01.2017 is concerned, since it is admitted case of the State respondent/appellants that they are not questioning the order of recovery as would appear from the Ground No.9 to the paper book wherein it has been stated that "recoveries of excess payment made to the respondent herein, as salary, would not be done, in the light of Hon'ble Apex Court as well as this Court judgment", therefore, the part of the order which pertains to recovery of amount as has been ordered in the impugned order dated 30.01.2017 is not being interfered with by this Court.
However, so far as question of consideration of upgradation in pay scale by way of 2nd upgradation under ACP scheme and 3rd upgradation under MACP, the case of the writ petitioner is required to be considered, treating the writ petitioner holding the post of Typist, since according to the writ petitioner he has not been granted regular promotion, therefore, this Court is of the view that the case of the writ petitioner for upgradation (2 nd ACP and 3rd MACP) is required to be considered by the State authority subject to fulfilment of requisite conditions as per the terms and conditions provided under the applicable scheme by taking a decision within a period of eight weeks from the date of receipt/production of a copy of the order.
Needless to say that if the authority will find the petitioner eligible and come to the conclusion by taking a decision for grant of upgradation under the ACP and MACP scheme, the pension would finally be fixed on the said enhanced pay scale.
14. The instant appeal is allowed in part, as indicated above, however, with the observations and directions made hereinabove. 14
15. Consequently, I.A. No. 2943 of 2019 stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saket/-
A.F.R.