Writ petition seeking quashing of order rejecting reinstatement claims was dismissed. Court held petitioners' appointment was unauthorized and quashed in earlier Benches and LPA cases.
Writ petition dismissed. Representation regarding reinstatement rejected based on precedent holding appointment void.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 7427 of 2016
Versus
1.The State of Jharkhand
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Petitioners : Mr. Ram Subhag Singh, Advocate For the Respondents : None
Through Video Conferencing
8 /22.02.2022
Heard Mr. Ram Shubhag Singh, learned counsel appearing on behalf of the petitioners.
2. Nobody appears on behalf of the State. However, a counter affidavit has been filed by the respondent nos. 1 to 4 which is on record.
3. This writ petition has been filed for quashing the order as contained in memo no 352 (24) dated 09.03.2015 (annexure-7) passed by the Respondent no.3 who in turn has rejected the claim of the petitioners filed pursuant to order dated 01.12.2014 passed by this court in WPS No. 1740 of 2009. A further prayer has been made directing the respondents to reinstate the petitioners in service with back wages in view of judgement dated 06.10.2009 passed by Hon’ble Patna High Court in CWJC No. 6575 of 2009 wherein the same order by which the present petitioners were terminated was quashed.
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4. Learned counsel for the petitioners submits that the petitioners were dismissed vide order as contained in Annexure-2 which is dated 30.05.1992 and the said order was subject matter of challenge by other similarly situated persons in CWJC No. 6575 of 2009 before the Hon’ble Patna High Court and was set aside on the ground of violation of principles of natural justice. The judgement passed by the writ court was also affirmed in L.P.A. No. 230 of 2011.
5. The learned counsel submits that the petitioners had earlier moved this court in W.P. (S) No. 1740 of 2009 wherein the aforesaid facts have been recorded and the grievance of the petitioners was also recorded that their case is similar to the case of the petitioners of CWJC No. 6575 of 2009 and W.P. (S) No. 3376 of 2011. Accordingly, it was prayed that the case of the petitioners be also directed to be considered in the light of the said decision. The writ petition W.P. (S) No. 1740 of 2009 was disposed of with a liberty to approach the competent authority who in turn was directed to consider the grievance of the petitioners in the light of the aforesaid judgement.
6. The learned counsel submits that pursuant to the order passed in W.P. (S) No. 1740 of 2009, the impugned order as contained in Annexure-7 has been passed. The learned counsel has submitted that impugned order calls for interference as the same has not been passed in terms of the order passed by this court in the case of the petitioners being W.P. (S) No. 1740 of 2009.
7. Learned counsel for the respondents has opposed the prayer and has submitted that a counter affidavit has been filed in the present case stating that the petitioners were appointed by Dr. Mallick, the then Deputy Director, T.B. Government of Bihar and the services of all the appointees were terminated vide order dated 30.05.1992 (Annexure-2 to the writ petition). The matter regarding termination was also subject matter of consideration in the case of Ashwani Kumar versus State of Bihar in Civil Appeal No. 10760-11058/95 reported in AIR 1994 S.C. 1624 [(1997) 2 SCC page1] wherein the Hon’ble Supreme Court has held that the initial entry of the employees itself was unauthorized as appointment was neither made against sanctioned vacancies, nor Dr. Mallick was entrusted with the power of creating vacancies or post for the scheme under Tuberculosis eradication programme. It has also
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been stated in the counter affidavit that similarly situated persons had also filed writ petitions before this court and as per the direction of Hon’ble Court to consider their representation, the various representations were considered and rejected. Counter affidavit provides the details of a number of cases being W.P. (S) No. 5629 of 2010 etc. and the date of rejection of the representation in each case. Learned counsel has also placed on record a judgment dated 07.12.2021 passed in L.P.A. No. 364 of 2020 (Arun Kumar Singh and others versus The State of Jharkhand and others) to submit that the Hon’ble Division Bench of this court has also considered the case of Ashwani Kumar versus State of Bihar (supra) in order to reject the claim of regularization. Learned counsel has referred to another judgment passed in the case of State of Bihar and Others versus Devendra Sharma [2019] 4 JLJR S.C. 323 which are also been referred to in the aforesaid L.P.A. No. 364 of 2020. Learned counsel submits that in view of the aforesaid judgements, the writ petition be rejected.
8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case and after going through the impugned order as contained in Annexure-7 to the present writ petition, this court finds that it is not in dispute that the appointment of the petitioners was pursuant to the order of Dr. Mallick the then Deputy Director, Health Services (Tuberculosis) State of Bihar in the year 1989-90 and the services of the petitioners were terminated vide memo dated 30.05.1992 along with others. This court also finds that the case of the petitioners is squarely covered against the petitioners by the judgment passed by the Hon’ble Supreme Court in the case of Ashwani Kumar (supra) followed by this court in L.P.A. No. 364 of 2020 dated 07.12.2021 . Operative portion of the judgment passed by Hon’ble Division Bench is quoted as under:
“6. In the aforesaid decision, the judgment rendered by the Hon’ble Apex Court in the case of Ashwani Kumar (supra) has been considered and it has been held that the appointment made in the Health Department of the State of Bihar during the relevant time suffers from gross illegality. Thus, it is evident from the judgment of the Hon'ble Apex Court rendered in the case of Ashwani Kumar (supra) that
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the recruitments made by Dr. A. A. Mallick were arbitrary, capricious, null and void. It was also held that none of the appointees has any accrued right in the absence of any sanctioned posts. Herein also, the writ petitioners are referring to Annexure-1 which is order passed under the signature of Civil Surgeon and as such, contention has been made that the judgment rendered in the case of Ashwani Kumar (supra) cannot be held to be applicable since therein the consideration has been made with respect to the appointment made by Dr. A.A. Mallick but the said contention is not acceptable to this Court, for the reason, it would be evident from Annexure-1 wherein reference of memo no. 2728 dated 19.11.1989 has been made which pertains to a decision taken by the Selection Committee during the relevant time of Dr. A.A. Mallick. Therefore, this Court is not hesitant in holding that the present case is also squarely covered by the judgment rendered in Ashwani Kumar (supra) and Devendra Sharma (supra) . Since the issue has already been decided by the Hon'ble Supreme Court and the learned Single Judge has dismissed the writ petition after taking into consideration the aforesaid aspect of the matter, in our considered view, there is no reason to take different view than one taken by the learned Single Judge in the facts of the given case.
7. Accordingly, the instant appeal fails and is hereby dismissed.”
9. This court finds that the representation of the petitioners has been rejected by referring to the judgement passed in the case of Ashwani Kumar (supra). Since the initial entry of the petitioners was itself unauthorized, the claim of the petitioners has been rightly rejected by the impugned order. The impugned order also reflects that cases of other similarly situated persons as that of the petitioners have also been rejected.
10. Accordingly, this court finds no merit in the present petition, which is hereby dismissed.
11. Pending I.A., if any, stands closed.
(Anubha Rawat Choudhary, J.)
Binit
1 issue framed by the court
Whether the claim for reinstatement in service allows when appointment was unauthorized and quashed earlier by the Supreme Court.
Colour shows how this judgement treated each authority
Ashwani Kumar versus State of BiharDistinguished¶29
AIR 1994 S.C. 1624 · Who else cites this
Ashwani Kumar versus State of BiharDistinguished¶29
[1997] 2 SCC page1 · Who else cites this
Arun Kumar Singh and others versus The State of Jharkhand and othersRelied on¶29
L.P.A. No. 364 of 2020
State of Bihar and Others versus Devendra SharmaRelied on¶29
[2019] 4 JLJR S.C. 323
unreportedReferred¶22
CWJC No. 6575 of 2009
unreportedReferred¶22
WPS No. 1740 of 2009
Md. Sallauddin Saba and others
The State of Jharkhand
The Additional Chief Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Jharkhand
The Director-in-chief, Health Services, Govt. of Jharkhand
The Civil Surgeon-cum-Chief Medical Officer, Palamu
ANUBHA RAWAT CHOUDHARY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
