Mansidh Surin Vs State of Jharkhand

IN THE HIGH COURT OF JHARKHAND, RANCHI W.P.(S.) No. 504 of 2024

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1. Mansidh Surin, aged about 52 years, son of Patras Surin, Resident of Mohalla Krishnapuri Road No.11, PO and PS – Chutia, District – Ranchi

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2. Niral Kerketta, aged about 48 years, son of Late Simon Kerketta, Resident of Village – Murga Patratoli, PO – Gara, PS – Kamdara, District – Gumla

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3. Md. Javed Iqbal Ansari, aged about 41 years, son of Md. Luqman Ansari, Resident of Jealgora No.16, PO – Jealgora, PS – Jorapokhar, District – Dhanbad

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4. Ranjeet Kumar, aged about 40 years, son of Late Surendra Pandit, Resident of Village – Ghatamarpur, PO – Korkaghat, PS – Pathargama, District – Godda

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5. Roshan Oraon, aged about 40 years, son of Erush Oraon, Resident of Village – Chiri, PO – Chiri, PS – Kuru, District – Lohardaga

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6. Anand Nayak, aged about 43 years, son of Budhwa Nayak, Resident of Village – Durin, PO – Hatia, PS – Dhurwa, District – Ranchi

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7. Arbind Kumar, aged about 37 years, son of Padum Kumar Singh, Resident of Village – Jori, PO and PS – Jori, District – Chatra

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8. Jaypal Kujur, aged about 45 years, son of Benjamin Kujur, Resident of Village – Konkel, PO – Konkel, PS – Raidih, District – Gumla

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9. Rajendra Ram Bediya, aged about 42 years, son of Late Chakrawati Bediya, Resident of Village – Chokarbera, PO – Sondimra, PS – Gola, District – Ramgarh

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10. Suman Kumar, aged about 49 years, son of Rabindra Nath Singh, Resident of c/o Devendra Prasad, Bihar Colony, Chas,

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PO – Godhadih More, Chas, PS – Chas, District – Bokaro

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11. Shreya Alankar, aged about 40 years, son of Uday Shankar, Resident of Ashok Vatika Colony Darku Nagar, PO – Jodhadih More, Chas, PS – Chas, District – Bokaro

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12. Rishikesh aged about 46 years, son of Nand Kumar Pathak, Resident of Village – Neema, PO – Naudiha Bazar, PS – Chhattarpur, District – Palamau

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13. Sanjeev Kumar Sharma, aged about 41 years, son of Nagendra Sharma, Resident of Village – Tupudana, PO – Hatia, PS – Dhurwa, District – Ranchi

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.... Petitioners

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1. The State of Jharkhand

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2. Home Department, Government of Jharkhand through its Additional Chief Secretary having its office at Project Building, PO and PS – Dhurwa, District – Ranchi

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3. Director General-cum-Inspector General of Police, having office at Police Head Quarter, Dhurwa, PO and PS -Dhurwa, District – Ranchi

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4. Director General-cum-Commandant General, Home Guard and Fire Extinguishing Services, Jharkhand having office at Police Head Quarter, Dhurwa, PO and PS – Dhurwa, District – Ranchi .... Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Atanu Banerjee, Advocate :- Mr. Suman Kumar Ghosh, Advocate :- Mr. Aditya Banerjee, Advocate For the State :- Mr. Indranil Bhaduri, Advocate

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07 /17.01.2025 Heard learned counsel for the petitioners and learned

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counsel appearing for the respondent State.

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2. This petition has been filed for direction upon the

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concerned respondents to consider the case of the petitioners for grant of pay increments since from the date of their original appointment being made in the year 2012 and accordingly the current pay of the petitioners may be fixed and consequential monetary benefits may be released in favour of the petitioners. Further prayer is made to direct the respondents to consider the case of the petitioners for grant of continuity of their services since from the date of their original appointment made from the year 2012 in view of the fact that the services of the petitioners reinstated in pursuance of the order and direction of this Court passed in W.P. (S) No.1562 of 2014 and other analogous cases by judgment dated 12.08.2016 on quashing and setting aside of the order of termination of services of the petitioners. Further prayer is made to pay the full pay and allowances in the applicable scale of pay to the petitioners for the period from 26.02.2014 i.e. when the petitioners were dismissed from their services.

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3. Mr. Atanu Banerjee, learned counsel appearing for the petitioners submits that pursuant to newspaper advertisement being Advertisement No.1/2008 for appointment of Sub Inspector / Sergeant and Company Commander the petitioners have applied for that post. By way of referring Annexure-1 which is the advertisement, he submits that Clause 7 of the Advertisement stipulated that the candidates opting for Sub

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Inspector, Sergeant and Company Commander has to indicate their order of preference and further by way of referring Clause 13 of the said advertisement he submits that inter-se seniority of two candidates having score of same marks shall be decided on the basis of their performance in written examination. He submits that the petitioners have qualified in terms of advertisement and they have been issued appointment letters by way of Annexure-2 series in the year 2012. He further submits that the petitioners gave their joining on 30.11.2012 on the post of Company Commander in the Home Guard Head Quarter contained in Annexure-3 and thereafter the petitioners were deputed and sent for in-service training at Police Training Centre College, Hazaribagh and during the course of training, the final examination of petitioners of internal subjects were taken. He then submits that in pursuance of the enquiry being conducted in relation to the selection of the petitioners a decision taken to rectify the earlier selection list. In view of the revision of the result, a direction was issued to remove petitioners from their services under different categories under Rule 668 (Ka) of the Police Manual. The forty-two candidates including the petitioners were removed from services and dismissal orders dated 26.02.2014/26.02.2013 was issued whereby the petitioners were dismissed contained in Annexure-4 series.

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4. He submits that the petitioners have challenged the

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same in W.P. (S) No.1553/2014, W.P. (S) No.1567/2014, W.P. (S) No.1848/2014 respectively before this Court. He then submits that the writ petitions were allowed by the common judgment dated 12.08.2016 and the termination order was quashed on the principle of the judgment of Hon’ble Supreme Court in the case of Vikash Pratap Singh & Ors. vs. State of Chhattisgarh & Ors. reported in (2013) 14 SCC 494 and termination order was quashed and set aside and the respondents were directed to pass an order for reinstatement of the petitioners in service against existing/anticipated or future vacancies, treating it to be fresh appointments and on their reinstatement, they shall be placed at the bottom of the seniority list of the revised merit list.

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5. He further submits that the order of the learned Single Judge was challenged in L.P.A. No.473 of 2016 along with other analogous L.P.As and the Division Bench by judgment dated 18.07.2019 dismissed all the L.P.As and affirmed the order of the learned Single Judge.

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6. He submits that the said order was challenged by some of the interveners as well as the State of Jharkhand in Civil Appeal Nos.429-430 of 2021 along with other analogous Civil Appeals before Hon’ble the Supreme Court which was decided by judgment dated 18.02.2021 whereby Hon’ble the Supreme Court has affirmed the judgment of the High Court and dismissed the S.L.P. He submits that since the matter is settled up to the

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Supreme Court in light of the direction of the learned Single Judge of this Court, the petitioners are entitled for consequential benefits. By way of drawing the attention of the Court to Annexure-15 of the writ petition, he submits that one Kishore Kumar, who was appointed on the post of Sergeant Major and who was also the petitioner in the aforesaid writ petition, he has been given the benefit with effect from 2012 by the State of Jharkhand and in view of that on the ground of parity as well as equity, the case of the petitioners is also covered. He further submits that one Vinod Kujur, who was also appointed with the same advertisement he was dismissed and subsequently the department has reinstated, however, the consequential benefits were not paid and that person has challenged the same before this Court in W.P. (S) No.2820 of 2016 and by order dated 28.03.2022 the co-ordinate Bench has directed to provide the consequential benefits to Vinod Kujur, who was also dismissed and appointed under the same advertisement.

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7. On the above grounds, he submits that the law is well settled that once a reinstatement order is passed meaning thereby everything is restored and the petitioners are entitled for consequential benefits. He relied in the case of Shiv Nandan Mahto versus State of Bihar and Others reported in (2013) 11 SCC 626 wherein, at paragraph No.8, it has been held as under:

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8. Having heard the learned counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, a wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service.

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8. Relying on the above judgment, he submits that no illegality has been done by the petitioners, it was the conduct of the State and for that the petitioners have not been allowed to work and in view of that the petitioners are entitled for the consequential benefits.

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9. He further submits that the continuity of service of the petitioners is deemed to be there in view of the fact that the earlier training provided to the petitioners was treated to be the valid training and they have not been sent up for fresh training and only the remaining training was provided to them. He further relied in the judgment of Hon’ble Supreme Court in the case of

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Gowramma C. (Dead) by Legal Representatives versus Manager (Personnel), Hindustan Aeronautical Limited and Another reported in (2022) 11 SCC 794 wherein, at paragraph No.13, it has been held as under:-

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13. The most important question is whether the

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employee is at fault in any manner. If the employee is not at all at fault and she was kept out of work by reasons of the decision taken by the employer, then to deny the fruits of her being vindicated at the end of the day would be unfair to the employee. In such circumstances, no doubt, the question relating to alternative employment that the employee may have resorted to, becomes relevant. There is also the aspect of discretion which is exercised by the Court keeping in view the facts of each case. As we have already noticed, this is a case where apart from the charge of the employee having produced false caste certificate, there is no other charge. Therefore, we would think that interests of justice, in the facts of this, would be subserved, if we enhance the back wages from 50% to 75% of the full back wages, which she was otherwise entitled. The appeals are partly allowed. The impugned judgments will stand modified and the respondents shall calculate the amount which would be equivalent to 75% of the back wages and disburse the amount remaining to be paid under this judgment within a period of six weeks from today to the additional appellants.

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10. Relying on the above judgment, he submits that the employee of that case was also not at fault and in view of that the Hon’ble Supreme Court has passed the said order enhancing the back wages.

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11. He Further relied on the judgment of Hon’ble Supreme Court in the case of Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyala (D.Ed.) and Others reported in (2013) 10 SCC 324. He submits that the principle laid down in that case has further been considered by this Court in W.P. (S) No.605 of 2024 by order dated 15.03.2024 in which the benefits have been directed to be paid in that case. On this ground, he submits that the appropriate direction may kindly be

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issued to the State to grant the consequential benefits.

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12. Per contra, Mr. Indranil Bhaduri, learned counsel appearing for the respondent State opposes the prayer of the petitioners and submits that the argument advanced by learned counsel appearing for the petitioners are misconceived one. He submits that the writ court has quashed the termination order directing to reinstate, however, the appointment was treating to be a fresh appointment and in light of the writ court’s order, the petitioners were appointed and in view of that the petitioners are not entitled for consequential benefits. He further submits that even the L.P.A. Court has affirmed the order of the learned Single Judge and further dismissal of S.L.P. by Hon’ble the Supreme Court are not helping the petitioners, so far the consequential benefits are concerned. He distinguishes the judgment relied by learned counsel appearing for the petitioners and submits that in those cases the termination was found to be illegal and the termination order was quashed and in that background, the back wages were directed to be paid, however, so far the petitioners are concerned they have not been terminated on the ground of any disciplinary proceedings and in view of that those judgments are not helping the petitioners. On this ground, he submits that the writ petition is fit to be dismissed. He then submits that so far providing the benefit to the Sergeant is concerned the explanation has been sought from the concerned Superintendent

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of Police of the District to explain how some of the Sergeant are getting benefits contained in Annexure-A. On this ground, he submits that there is no merit in the writ petition and the same may kindly be dismissed.

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13. In light of above submission of learned counsel appearing for the parties, the Court has gone through the materials on record and finds that admittedly by way of Annexure-1 which is the Advertisement No.1/2008 the selection process was started for the post of Sub-Inspector Sergeant and Company Commander and pursuant to that the petitioners have applied and they have faced the selection process and they have been appointed on the post of Company Commander in the year 2012 and thereafter they have been sent for in-service training at Police Training Centre College, Hazaribagh and they have also passed the final examination with regard to the internal subjects while they were in training, subsequently, on enquiry the State decided to rectify the earlier select list pursuant to that the petitioners have been terminated by order dated 26.02.2014 which is challenged before this Court in W.P. (S) No.1553 of 2014, W.P. (S) No.1567 of 2014 and W.P. (S) No.1848 of 2014 respectively and the writ petitions were allowed by the judgment dated 12.08.2016 holding at paragraph No.15 as under:-

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15. In view of the reasons stated in the foregoing paragraphs and as the view of this Court gets fortified by the judgment of the Hon’ble Apex Court rendered in the case of Vikas Pratap Singh (Supra) and as a logical sequitur to the aforesaid

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reasoning, the impugned order of termination of services of the petitioners are hereby quashed and set aside and the respondents are directed to pass orders for reinstatement of the petitioners in services against existing/anticipated or future vacancies, treating it to be fresh appointments, and on their reinstatement, they shall be placed at the bottom of the seniority list of the revised merit list. The whole exercise be completed expeditiously, preferably within a period of four weeks from the date of receipt/production of a copy of this order.

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14. The above order was passed by learned Single Judge of this Court holding in the earlier paragraphs that the petitioners having been appointed have undergone the training and no fraud or misrepresentation have been committed on the part of the petitioners in the process of selection and if any illegality committed, the same could not have been attributed to the petitioners nor any blame could be apportioned to the petitioners that has elaborately discussed in paragraph No.13 of the said judgment. In this background, learned Single Judge has directed to reinstate, however, they have been directed to be adjusted in the existing/anticipated or future vacancies treating to be a fresh appointment and seniority to be placed at the bottom. This order of the learned Single Judge has been affirmed by the L.P.A. Court and the further affirmed by Hon’ble Supreme Court by judgment dated 18.07.2019 and 18.02.2021 respectively.

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15. Reading the judgment of learned Single Judge in its entirety, he has come to a finding that the petitioners have not made any fraud or misrepresentation and if any wrong has been committed that was on the part of the State and in the light of

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that the reinstatement is directed by the learned Single Judge. In the Black’s Law Dictionary “reinstatement” is defined to reinstall, to re-establish, to place again in a former state, condition or office, to restore to a state or position from which the object or person had been removed. The term “reinstatement” has been considered by Hon’ble Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior

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Adhyapak Mahavidyalaya (D.Ed) & Ors. reported in

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(2013) 10 SCC 324 wherein, at paragraph No.21 and 22, it has been held as under :-

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21. The word “reinstatement” has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edn., “reinstatement” means:

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“To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.”

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22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put

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in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.

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16. In the above paragraphs, it has been held that the denial

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of back wages of an employee, who has suffered due to an illegal act of the employer could amount to indirectly punishing the employee concerned and in the light of that in that case also the direction has been issued to pay the back wages. The case of the petitioners are further fortified in view of the fact that the

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training received by them earlier pursuant to first appointment was also treated to be the training of the further appointment pursuant to order of the High Court and they have been sent to only for the further remaining period that too only for appearing on the examination of the external subjects. This fact has not been denied by the counsel for the respondent State and this has happened in light of Annexure-11 of the writ petition. Thus, it was in the mind of the State that they have to be appointed in continuation of their earlier appointment. Further they have been directed to be placed at the bottom of the seniority and that part the petitioners have not challenged. Thus, the earlier appointment are deemed to be valid only they have been placed at the bottom of seniority list.

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17. The continuation of service in the identical situation was considered by Hon’ble Supreme Court in the case of Vikas

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Pratap Singh & Ors. vs. State of Chhattisgarh & Ors.

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reported in (2013) 14 SCC 494 wherein at paragraph No.28 and 29 it has been held as under:-

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28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondentState for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependents but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected

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qua the revised merit list.

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29. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.

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18. The above judgment was considered by learned Single Judge while allowing the writ petition whereby the termination order of the petitioners have been quashed and in light of that the reinstatement has been directed at paragraph No.15 of the said order.

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19. The State is having the provisions with regard to the consequential benefits in the light of Rule 13(3) of Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 which stipulates as under :-

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13. Treatment of service on reinstatement and admissibility of pay and allowances where dismissal, removal or compulsory retirement is set aside by a court of law. -

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(3) Where the dismissal, removal or compulsory retirement of a Government Servant is set aside by a court on the merit of the case, or where the dismissal, removal or compulsory retirement of a Government Servant is set aside by a court solely on the ground of non-compliance with the requirements of these Rules and no further inquiry is proposed to be held, the period intervening between the date of dismissal, removal or compulsory retirement as the case may be, and the date of reinstatement shall be treated as on duty for all purposes. As a result the Government Servant shall be paid full pay and allowances for the period to which he would have been entitled, had he or she not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.

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20. In the light of above, it is crystal clear that the State has taken a decision in the light of said rule that if the reinstatement is there, the Government servants shall be paid full pay and allowances for the period they have been entitled. Thus, the rule of the State is also in favour of the petitioners.

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21. Thus, for the wrong of the respondent State, the petitioners were prevented to work and if such a situation is there the case of the petitioners is covered in the light of the judgment of Hon’ble the Supreme Court in the case of Pradeep

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s/o Rajkumar Jain versus Manganese Ore (India) Limited and Others reported in (2022) 3 SCC 683 wherein,

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at paragraph No.6 and 12, it has been held as under :-

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6. The Bench of two learned Judges in the said case has, after reviewing of case law which included survey of two earlier three Judges Benches of this Court, concluded as follows:

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“38. The propositions which can be culled out from the aforementioned judgments are:

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38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

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38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it

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has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

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38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

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38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in

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the form of full back wages.

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38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-àvis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees.

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38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.

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“42. In the result, the appeal is allowed, the impugned order [Kranti Junior Adhyapak Mahavidyalaya v. State of Maharashtra, (2012) 1 Mah LJ 370] is set aside and the order passed by the Tribunal is restored. The management shall pay full back wages to the appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the appellant's suspension till the date of actual reinstatement. It is also made clear that in the event of non-compliance with this order, the management shall make itself liable to be punished under the Contempt of Courts Act, 1971.”

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12. It is, undoubtedly, true when the question arises as to whether the backwages is to be given and as to what is to be

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the extent of backwages, these are matters which will depend on the facts of the case as noted in Deepali Gundu CIVIL APPEAL NO. 7607 OF 2021 Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.

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22. In the aforesaid case the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya

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(D.Ed) & Ors. reported in (2013) 10 SCC 324 was also considered.

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23. In the light of above two judgments, it is well settled that in the case where it is found that the employee is not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed, but for the illegal/malafide termination, he was not allowed.

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24. Considering all these aspects, the learned Single Judge has passed such order which has been affirmed by the Division Bench as well as by Hon’ble the Supreme Court.

¶132

25. So far as the argument of Mr. Bhaduri, learned counsel appearing for the respondent State with regard to the non-

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W.P.(S.) No. 504 of 2024

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application of aforesaid judgments relied by learned counsel appearing for the petitioners are concerned, this Court finds that the case of the petitioners are on better footing. To distinguish those judgments, the only submission was made that in those judgment termination was found to be illegal and pursuant to that those orders have been passed. In the case in hand the petitioners were not found to be made any mischief or fraud and pursuant to that the termination orders have been quashed. Thus, the case of the petitioners are on better footing, as such the argument of non-application of those judgments relied by learned counsel appearing for the State is negated by this Court.

¶136

26. A new stand has been taken in the counter affidavit with regard to the denial of the benefit to the petitioners in the light of Annexure-15 by which the Sergeant Majors have been given the benefit with effect from 2012 and those have been also appointed by way of the same advertisement and they were also the petitioners in that writ petitions and the denial of the same benefits to the petitioners are arbitrary and in view of that the petitioners are further entitled on the point of similarly situated persons who have been provided the same benefits.

¶137

27. Thus, the argument with regard to Annexure-15 of Mr. Bhaduri, learned counsel appearing for the respondent State is hereby negated on the point of equity.

¶138

28. Further one Vinod Kujur was provided the same benefit

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¶140

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in light of the judgment of a co-ordinate Bench of this Court in W.P. (S) No.2820 of 2016 who was also appointed pursuant to the said advertisement itself that has not been denied and only it has been stated that he was wrongly terminated and his termination was recalled by the State itself.

¶142

29. In view of the above facts, reasons and analysis, this Court comes to the conclusion that the petitioners are entitled for the benefit with effect from 2012 in light of Annexure-15 as well as the order of the co-ordinate Bench in light of W.P. (S) No.2820 of 2016 and also on the principle of reinstatement and on the point of equity, as such this writ petition is allowed.

¶143

30. The respondent State is directed to provide the benefit to the petitioners with effect from 2012 within eight weeks.

¶144

31. This petition is allowed and disposed of.

¶145

(Sanjay Kumar Dwivedi, J.)

¶146

Sangam/

¶147

A.F.R

¶148

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