Allowed

Md. Razaul Haque v. State of Jharkhand And Ors.

Jharkhand HC27 Feb 2018WPC/6762/2007

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Jharkhand quashed an order reverting a petitioner from a promoted Typist post to Daftari. The Court held the order violated natural justice under Article 311(2) as no hearing was provided and affirmed the petitioner's right to remain on the post.

What did the court decide?

The impugned order of reversion dated 13.04.2006 is quashed and set aside. The petitioner is allowed to continue on the post of Typist. The matter is remitted to the respondents to pass a fresh order

Md. Razaul Haque Vs State of Jharkhand And… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI. W. P. (S) No. 6762 of 2007

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Md. Razaul Haque, S/o-Late Abdul Jabbar, R/o-at presen Daftari Drinking and Sanitation Division, Godda, Jharkhand, Permanent resident of village Kayajpur, P.O.-Dharma-Phapara via Maheshpur (Raj), Dist.-Pakur

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… … Petitioner

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-V e r s u s-

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1.The State of Jharkhand

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2.The Secretary, Drinking Water and Sanitation Department, Government of Jharkhand, Ranchi.

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3.The Chief Engineer, (Technical) P.H.E.D.,Government of Jharkhand, Ranchi.

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4.The Superintending Engineer, Drinking Water and Sanitation Circle, Deoghar, Jharkhand.

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5.The Executive Engineer, Drinking Water and Sanitation Division, Godda, Jharkhand. … Respondents

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CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK.

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For the Petitioner : - M/s. Arbind Kr. Jha, Prabhash Kumar and Subha Jha, Advocates.

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For the Respondent-State: - Mr. Ajit Kumar, J.C. to S.C. (L&C).

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17/27.02.2018 In the instant writ application, prayer has been made for quashing the office order No. 2C/3-3/06-23 contained in Memo dated 13.04.2006, issued by the Respondent No. 4 pertaining to reversion of the petitioner from the post of Typist to the post of 'Daftari' .

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The case of the petitioner in brief is that he was appointed initially on the post of 'Daftari' (Class IV post) on 30.09.1981 in which post, he has been confirmed in the year 1985. Since the petitioner was a matriculate, having typing qualification, he was assigned the work of typing during the period, when the regular typist was on leave and because of his highly satisfactory performance, as a Typist, the respondent no. 5 in a series of letters requested the respondent no. 4 for grant of special allowance to the petitioner for his officiating as substitute Typist in the Division, as evident from Annexure-2 series to the writ application. The Respondent no. 5 also requested the respondent no. 3 to consider the representation of the petitioner dated-19.08.1991 for considering his due promotion/appointment against the sanctioned vacant post of Typist in the Division in accordance with the Rules/Policy in this regard.

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Thereafter, the respondent no. 5 also made recommendation for giving promotion to the petitioner on the post of Typist under the Government Policy from Class IV post to Class III post against the vacant post of Steno-Typist and Typist. The petitioner also submitted representation on 05.06.1998 enumerating the detailed facts for his promotion/appointment against the sanctioned vacant post of Typist. Subsequently, the Establishment Committee held at P.H.E.D. Circle, Deoghar took a decision to give promotion to the petitioner considering his representations as well as the recommendation of the Respondent No. 5 and the petitioner was given promotion vide Office Order dated 24.12.1998 on the post of Typist (Class-III post) in accordance with the Government Rules/Circulars/Policies, as evident from Annexure-5 to the writ petition and in pursuance to the said promotion, the petitioner joined the said post on 01.01.1999 and continued to discharge his duties to the utmost satisfaction of his authorities and the petitioner also continued to receive the annual increments but to the utter surprise and all of a sudden, the petitioner received an office order dated 13.04.2006, issued from the office of the respondent no. 4, whereby the promotion of the petitioner has been quashed, which is impugned in this writ application. Being aggrieved by the order vide Annexure-6 to the writ application, the petitioner submitted representations. The Respondent No. 5 also sent one reminder to the respondent no. 4 to consider the case of the petitioner sympathetically but the request of the respondent no. 5 fell on the deaf ears of the respondent no. 4. Being aggrieved by the action of the reversion, the petitioner has been constrained to knock the door of this Court for mitigation of his grievances under Article 226 of the Constitution of India.

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A supplementary affidavit dated 27.08.208, has been filed by the petitioner, wherein, the recommendation of the respondent no. 5 for restoring his promotion on the post of Typist taking into consideration his efficiency for the post vide his letter No. 252, dated 17.05.2008 and on the basis of such recommendation, the respondent no. 4 has directed the Executive Engineer, Drinking Water and

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Sanitation Division, Godda to take work of Typist from the petitioner in the interest of work and need of the Department vide Memo dated 30.07.2008 (Annexure-9 series to the supplementary affidavit).

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Learned counsel for the petitioner has strenuously urged that the impugned order has been passed in violation of the principles of natural justice and the order of reversion being a punitive action, is hit by Article 311 (2) of the Constitution of India. Learned counsel for the petitioner further submits that the petitioner having worked for more than seven years on the post of Typist ought not to have been reverted unceremoniously, whereby the acquired right of the petitioner has been set at naught. Learned counsel for the petitioner further submits that the averments made in the writ application, more particularly, paragraph 20 of the same, has not been controverted in the counter affidavit, therefore, the said averments are to be accepted on the doctrine of non-traverse. In order to buttress his submissions, learned counsel for the petitioner has referred to the following citations : -

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(i) AIR 1986 SC 638, Narender Chadha and

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others-v.-Union of India and others,

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(ii) 2003 (4) JCR 352 (Jhr), Jagdish Mahto-v.State of Jharkhand & Ors. and

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(iii) 2003 (4) JCR 344 (Jhr), Baliram Ojha-v.State of Bihar through the Secretary-cum-Commissioner, Forest and Environment Department Government of Bihar & Ors.

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During course of arguments, learned counsel for the petitioner has also referred to paragraph 6 of the rejoinder dated 31.01.2018, filed by the petitioner to the counter affidavit, wherein, it has been specifically mentioned that the respondents by misinterpreting the Government Circular (vide Annexure-A to the counter affidavit), which, inter alia, envisages that if no departmental examination has been conducted for a long time, then promotion from Class 4 to Class 3 will be given on the basis of persons' seniority and eligibility for such post. Since no departmental examination for the post of Typist has been taken for a long time, therefore, the promotion of the

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petitioner by the D.P.C. for meeting the administrative exigencies was just and as per the Circular contained in Memo No. 7027/92K335, dated 16.09.1992 as per Annexure-1 to the said rejoinder affidavit. 6. Repudiating the contentions made in the writ application, a counter affidavit has been filed by the respondent nos. 4 and 5. In the counter affidavit, it has been, inter alia, submitted that promotion to Grade 3rd Typist from 4th Grade was cancelled, in view of noncompliance of Government Rules and Regulations. Accordingly, the petitioner has been reverted to his original post of 'Daftari' . It has been further submitted that presently the petitioner was working as 'Daftari' under the Drinking, Water and Sanitation Division, Godda. Further, it has been submitted that Clause 2.2 of the Circular No. 2215, dated 11.02.1985 is not applicable in the instant case since promotion from Class IV to Class III is to be granted on the basis of 'SIMIT PRATIYOGITA' and the petitioner had no proof of qualifying such 'SIMIT PRATIYOGITA' and the Circular dated 11.01.1985 has been annexed as Annexure-C to the counter affidavit. 7. Controverting the averments made in the writ application, a counter affidavit dated 05.09.2008 has been filed by the respondent nos. 4 and 5. In the said counter affidavit, it has been, inter alia submitted that the State Government has issued Circular being Resolution No. 2215, dated 11.02.1985. According to the Circular, 25 per cent posts is to be filled up from Class IV to Class III post according to the seniority after holding the examination by the Commission.

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Apartfrom reiterating the submissions made in the counter affidavit, learned counsel for the Respondent-State has assiduously submitted that there is no averment in the writ application that the petitioner has passed the limited examination, therefore, the promotion of the petitioner to the post of Typist has been cancelled by the impugned order, which cannot be stated to be illegal in the eyes of law.

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Having given my anxious consideration to the rivalized submissions and on perusal of the records, this Court feels inclined to

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interfere to the impugned order due to the following facts and reasons : -

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(i) Admittedly, the petitioner was appointed by the Departmental Promotion Committee, headed by the Superintending Engineer to work on the post of Typist and he continued on the said post for more than 7 years and in the process, he has acquired a substantial right to continue on the said post and otherwise also, the petitioner also fulfills the eligibility criteria to hold such post. In the absence of any departmental examination conducted for the post of Typist for a long time, the question of promotion from Class IV to Class III post can be considered on the basis of seniority and eligibility for the post to meet out the administrative exigencies in view of the Circular contained in Memo dated 16.09.1992 (Annexure-1 to the rejoinder affidavit).

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(ii) Annexure-9/2 to the supplementary affidavit filed on behalf of the petitioner, dated 27.08.2008 would go to show that the respondent no. 5 has recommended the case of the petitioner for restoring on the post of Typist taking into consideration his efficiency and on the basis of the said recommendation, the respondent no. 4 has directed the Executive Engineer, Drinking Water and Sanitation Division, Godda to take the work of Typist from the petitioner in the interest of work and need of the Department.

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(iii) However, the reversion of the petitioner from the post of Typist to the post of the 'Daftari', is not sustainable in view of fact that there has been no show cause or opportunity of being heard has been provided to the petitioner prior to the issuance of reversion order and the impugned order cannot pass the test of judicial dictum, as has been held by the Hon'ble Apex Court in the case of Narender Chadha and others-v.-Union of India

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and others reported in AIR 1986 SC 638 .

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(iv) The respondents being the creature of the statute ought to have acted within the four corners of law while passing the impugned order of reversion in the rank, whereby the petitioner has been subjected to punitive action in breach of Article 311 (2) of the Constitution of India, therefore, the reversion order passed by the respondents, appears to be a glaring example of injustice being meted out to the petitioner in absence of compliance of principles of natural justice and Article 311 (2) of the Constitution of India.

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(v) In view of the reasons stated in the foregoing paragraphs, the impugned order dated 13.04.2006, issued by the Respondent No. 4 reverting the petitioner after more than seven years of promotion notwithstanding the fact that the petitioner possess all the requisite qualification, the same is wholly arbitrary, illegal and totally without jurisdiction, therefore, in that view of the matter, even after the order, passed by the respondents, the petitioner has been allowed to continue on the post of Typist, therefore, that would indicate the services rendered by the petitioner on the post of Typist, is being appreciated by the higher authorities.

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In that view of the matter, the impugned order dated 13.04.2006, issued by the Respondent No. 4 is hereby quashed and set aside and the matter is remitted to the respondents to pass a fresh order in accordance with law after taking into consideration the seniority, eligibility as well as the qualification of the petitioner.

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With the aforesaid observation and direction, the writ petition stands allowed.

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(Pramath Patnaik, J.)

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APK

Md. Razaul Haque v. State of Jharkhand And Ors.

Case brief

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Md. Razaul Haque v. State of Jharkhand And Ors.

Case brief

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