Jharkhand High Court
Randhir Kumar Singh vs State Of Jharkhand & Ors. on 22 June, 2016
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6738 of 2006
1.Randhir Kumar Singh, son of Late Indradeo Singh, resident of
village & P.O Gaharpathra, P.S. Patna, District Palamau
2.Shailendra Kumar, son of Sri Jagtanand Tiwary, resident of
village-Barahiya, P.O. & P.S. Sarmera, District-Nalanda
3.Surendra Towary, son of Sri Ambika Tiwary, resident of
village-Redma, P.O. Chianki, P.S. Daltonganj,District-Palamau.
... ... Petitioners
Versus
1.The State of Jharkhand
2.Principal Secretary, Animal Husbandry & Fishery Department,
Ranchi
3.Regional Director, Animal Husbandry, Palamau
4.Regional Director, Animal Husbandry, Dumka
5.District Animal Husbandry Officer, Palamau
6.District Animal Husbandry Officer, Dumka ... ... Respondents
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
---------
For the Petitioner : Mr. A.K.Sahani, Advocate
For the Respondents : J.C. to S.C.(L&C)
11/Dated: 22nd June, 2016
The petitioners have challenged the office order under
Memo No. 2327 dated 03.11.2006 issued by the respondent
no.2 by which the petitioners promotion to Class III posts was
canceled and the petitioners were reverted to Class IV posts.
The petitioners were employee of Animal Husbandry & Fishery
Department, Jharkhand, Ranchi. The petitioner no.1 was
appointed on 23.10.1973 in Class IV post of Chara Sardar and
was posted at Hay Making Centre, Kumandih, Palamau.
Petitioner no.2 was appointed on 14.12.1978 in Class IV post of
Peon and was posted at Animal Hospital, Ramna, Palamau.
Petitioner no. 3 was appointed some time in the year 1978 in
Class IV posts and was posted at SLPP, Daltonganj. The
petitioners state that they have been appointed after following
the due process of law. The petitioners state that they were
promoted vide office order dated 28.01.1986 issued by the
Regional Director, Animal Husbandry Department,
Chhotanagpur & Santhal Paragana Development Authority,
Ranchi. By virtue of the said order all these three petitioners
were promoted to Class III posts. The petitioners state that after
-2-
being promoted they had been working in their respective places
in Class III posts. Petitioner no.3 was issued notice to show
cause as to why his promotion will not be cancelled/recalled, in
view of the fact that the Regional Director who has promoted the
petitioner did not have any power to grant promotion. The
petitioner no. 3 had sought several documents and the copy of
the judgment from the District Animal Husbandry Officer,
Palamau, so, that he can properly file his reply to the notice,
which was not supplied. Thereafter, vide impugned order dated
03.11.2006, the promotion granted to the petitioner no. 3 was recalled by cancelling the promotion order dated 28.01.1986. This gave rise to this litigation.
The counsel for the petitioners submit that not only the impugned order is violative of the principal of natural justice, but also on the ground that at the relevant point of time, the Regional Director had authority to promote the employees from Class IV to Class III posts. He further submits that after 20 years the order of promotion could not have been recalled. He submit that there is no misrepresentation on the part of the petitioners at any point of time and as such the petitioners cannot be penalised. Lastly it is submit that the case of the petitioners are covered by the judgment dated 11th April, 2014 passed in the case of Krishna Prasad Singh Vs. The State of Bihar and others in C.W.J.C. Case No. 391 of 2000 (P).
Counsel for the State submits that the Regional Director, had no power to promote and thus, the promotion granted to the petitioners is illegal. He further submits that in the case of Ram Krishna Choudhary & others Vs. The State of Bihar/Jharkhand & Ors in CWJC Case No. 536 of 2000(R) this Hon'ble Court has held that the Regional Director of Animal Husbandry Department was not competent to make any appointment. He submits that since the promotion was granted without authority or jurisdiction there is no illegality in recalling -3- the same. He submits that an illegality can be cured at any point of time and as such the petitioners cannot be allowed to take plea that they have worked on the promoted post for 20 years and thus their promotion orders cannot be recalled. It is lastly submitted that petitioner nos. 1 and 2 have already been superannuated from the services and as such their post retiral benefits cannot be fixed taking into consideration that they have been promoted to Class III posts.
Heard learned counsels for the parties.
It is admitted position that all the three petitioners were appointed in the Class IV posts. It is also admitted that the petitioners were promoted vide order dated 28.01.1986 in Class III posts. Now the bone of contention is that whether the Regional Director had power to promote the petitioner. Para 7 of the counter affidavit in this respect reads as follows;
"That the Regional Director, Animal Husbandry had power to make appointment/promotion of Class-III of Regional Cadre post and Class-IV. The power to make an appointment/promotion of Class-III, Regional Cadre post was withdrawn by vide letter no. 292 dated 21.09.1992."
Further the resolutions of the Animal Husbandry Department which has been brought on record by the State in their supplementary counter-affidavit sworned on 29.07.2015, in Clause K provides that the Regional Director will exercise all the powers of the Director Animal Husbandry. This resolution is dated 18th March, 1980. A conjoint reading of the provisions of the resolution and para 7 of the counter-affidavit filed by the State, it can be inferred that the Regional Director had the power to promote the petitioners at the relevant point. Further from perusal of the Annexure-1 which is the order of promotion, it transpires that the petitioners were promoted pursuant to the recommendation by the Selection Committee. It is not a case where the Regional Director has promoted the petitioner, but -4- the order only was passed under the signature of the Regional Director on the recommendation of the Promotion Committee, which found the petitioners to be fit for promotion to the Class III posts. The petitioners have heavily relied upon the judgment passed in C.W.J.C. No. 391/2000 (P) dated 11.04.2014. In the said case Sri Krishna Prasad Singh was promoted to Class III posts, but his promotion was cancelled and he was reverted to the Class IV posts. The said Krishna Prasad Singh challenged the order of reversion in the writ application bearing C.W.J.C. No. 391 of 2000(P). The Hon'ble Court after considering the case of the Krishna Prasad Singh and also taking into consideration the judgment delivered by this Court in the case of Ajit Kumar Vs. Sate of Bihar & Ors and allowed the writ application by setting aside the order of reversion. The case of the petitioner is covered by the judgment passed in C.W.J.C. No. 391 of 2000 (P).
The judgment referred by the counsel for the State passed in C.W.J.C. No. 3566 of 2000(R) and analogous cases, arises out of a different fact. Their appointment was made by the Regional Director, who was not the competent to make the appointments. The case is on hand is different as because the case relates to promotion from Class IV to Class III posts and the said promotion was recommended by the promotion committee which is apparent from the impugned order itself. Thus, when a committee has recommended the case of the promotion of petitioners in Class III posts and the order of the said committee was merely communicated by the Regional Director, Animal Husbandry Department it cannot be said that the Regional Director had promoted the petitioners. Thus the impugned order of reversion of the petitioners to Class IV posts is absolutely bad.
I also find that there is gross violation of the principle of natural justice in the instant case. No notice has been issued to the petitioner nos. 1 and 2 before passing the impugned order.
-5-Though notice was issued to the petitioner no.3, yet on his demand, no documents were supplied to him as a result of which he could not file a show cause. Without following the principle of natural justice the impugned order was passed. The impugned order has serious civil consequence, thus it is mandatory for the State to follow the principle of natural justice. Illegality has been committed by the State in not affording any opportunity to the petitioners before passing the impugned order. On this score also the impugned order is liable to be set aside.
It has been informed that the petitioner nos. 1 and 2 have already been superannuated, during pendency of this writ application, while serving on Class III posts.
In totality of the facts and circumstances of the case, as discussed above, the impugned order 03.11.2006 is set aside. Since the petitioner nos. 1 and 2, has been superannuated from the Class-III post, their entire post retiral benefits will be calculated, after treating them to be in Class III posts. So far as the petitioner no.3 is concerned, he will continue to work on Class III posts.
This writ application is thus allowed.
(Ananda Sen, J.) Amar