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Dharmendra Pradhan and Anr Vs. State of Jharkhand and Ors - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantDharmendra Pradhan and Anr
RespondentState of Jharkhand and Ors
Excerpt:
.....block- saraikella, p.o., p.s. and district-seraikella-kharsawan.6. head master, government middle school, murup, block-saraikella, p.o., p.s. and district-seraikella-kharsawan. … respondents … coram: - hon’ble mr. justice pramath patnaik. … for the petitioners : - mr. rupesh singh, advocate. for the respondents : - mr. soumitra baroi, j.c. to g.p.-vi. … c.a.v. on : - 28/06/2016 delivered on :16. 09/2016 ... per pramath patnaik, j.in the accompanied writ application, the petitioners have inter alia prayed for quashing of order as contained in memo no. ssa/36, dated 30.1.2012 (annexure-5) issued by the respondent no. 3, whereby the concerned respondent has refused to permit/allow the petitioners to work as para-teachers in government middle shool, murup and further prayed.....
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 3011 of 2012 … 1. Dharmendra Pradhan, Son of Shri Bharat Pradhan, Resident of Village- Murup, P.O.-Burudih, P.S. & District-Seraikella-Kharsawan 2. Semal Kumar Pramanik, Son of Shri Navendra Pramanik, Resident of Village-Murup, P.O.-Burudih, P.S. & District-Seraikella-Kharsawan … Petitioners -V e r s u s- 1. The State of Jharkhand, through the Secretary, Human Resource Development Department, Government of Jharkhand, having its Office at Project Building, P.O.-Dhurwa, P.S.-Jagannathpur, District-Ranchi.

2. The Director Primary Education, Human Resource Development Department, Government of Jharkhand, having its Office at Project Building, P.O.-Dhurwa, P.S.-Jagarnathpur, District-Ranchi.

3. The Deputy Commissioner, P.O., P.S. and District-Seraikella-Kharsawan.

4. The District Superintendent of Education, P.O., P.S. and District-Seraikella- Kharsawan.

5. Block Education Extension Officer, Block- Saraikella, P.O., P.S. and District-Seraikella-Kharsawan.

6. Head Master, Government Middle School, Murup, Block-Saraikella, P.O., P.S. and District-Seraikella-Kharsawan. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioners : - Mr. Rupesh Singh, Advocate. For the Respondents : - Mr. Soumitra Baroi, J.C. to G.P.-VI. … C.A.V. On : - 28/06/2016 Delivered On :

16. 09/2016 ... Per Pramath Patnaik, J.

In the accompanied writ application, the petitioners have inter alia prayed for quashing of order as contained in Memo No. SSA/36, dated 30.1.2012 (Annexure-5) issued by the respondent no. 3, whereby the concerned Respondent has refused to permit/allow the petitioners to work as Para-Teachers in Government Middle Shool, Murup and further prayed for quashing the Memo No. 117, dated 5.5.2012 (Annexure-6), issued by the respondent no. 5 whereby the concerned Respondent has issued direction upon the Headmaster of the Government Middle School, Murup to disallow the petitioners from discharging their duties as Para-Teachers in the said School and consequently for a direction upon the Respondents-authorities to permit the petitioners to discharge their duties as Para-Teachers in 2 Government Middle School, Murup and further to pay their regular salary.

2. The factual matrix sans details, in a nutshell is that the petitioners were appointed as Para-Teachers in Government Middle School, Murup, after due process of law. It has been stated in the writ application that vide Letter dated 2.6.2008 of the Government of Jharkhand, notice was put in the Block Resource Centre for selection and appointment of two Para-Teachers for Government Middle School, Murup, on or before 1.7.2008 and accordingly, the information was circulated in the concerned village on 11.6.2008 and the same was also put on notice in the Government Middle School, Murup. It has been submitted in the writ application that the Village Level Education Committee, in its meeting held on 17.06.2008, had approved and recommended the case of the petitioners for appointment as Para- Teachers to the Block Education Extension Officer, Seraikella. It has been averred in the writ application that save and except the petitioners, there was no other applicant for the post of Para-Teachers in the concerned Middle School, Murup. In the light of the recommendation and approval dated 17.6.2008 of the Village Level Education Committee, in favour of the petitioners, the concerned Respondents- authorities vide letter dated 5.7.2008, accorded approval to the appointment of the petitioners as Para-Teachers in the Government Middle School, Murup Seraikella which is evident from Letter dated 23.10.2010 of the Respondent No. 5 and the Letter dated 07.05.2012 (Annexure-1 series) of the Head-Master, Government Middle School, Murup. The petitioners, in the light of the appointment letters mentioned hereinabove (Annexure-1 series), have submitted their joining in the Government Middle School, Murup, on 5.7.2008, which was duly accepted by the Head-Master of the concerned School and this fact was communicated to the Respondent No. 4 vide letter dated 7.7.2008 of the Head Master, Government Middle School, Murup. It has been further averred in the writ application that the petitioner no. 1 was also entrusted the duty of census in the year 2011 by the Block Development Officer, Saraikella, vide Memo dated 24.01.2011, 3 indicating him as Para-Teacher. The petitioners thereafter diligently rendered their duties to the satisfaction of superior authorities and continued to discharge their duties for almost for a period of two years but the petitioners were not being paid their salary by the concerned Respondent-authorities and subsequently by the orders of Respondent No. 5, the petitioners were illegally stopped from discharging their duties. It has been further stated that being aggrieved by the aforesaid action of the Respondents-authorities, the petitioners moved before this Court by filing W.P. (S) No. 1268 of 2011, praying for payment of salary for the period they have worked and the said writ application was disposed of vide order dated 16.08.2011. It has been further stated in writ application that in the light of directions of this Court, the Respondent No. 3 disposed of the claim of the petitioners vide Memo No. SSA/36 dated 30.1.2012, whereby the concerned Respondent- authorities on the one hand found the claim of the petitioners for payment of salary to be sustainable, but on the other hand, restrained the petitioners to continue on the post of Para-Teachers, on the ground of absence of necessary documents and records pertaining to approval of the appointment of the petitioners after about four years of their selection. It has been further averred in the writ application that such conclusion of the Respondent No. 3, was on account of non-submission of necessary documents by the Respondent No. 4 and/or respondent No. 5 relating to appointment of the petitioners and such action of the aforesaid respondents is completely illegal and unexplained. It has been further submitted in the writ application that all the necessary documents pertaining to Notice for appointment of Para-Teachers in the Government Middle School, Murup and the entire process of the selection at the Village Level Education Committee are in the custody of the Head-Master of the concerned school, who after selection of the Petitioners had forwarded the necessary documents to the higher authorities for approval and accordingly, the appointment letters dated 5.7.2008 (Annexure-1 series) was issued in favour of the petitioners by the Respondent No. 4 and the stand taken by the respondents for termination of the petitioners is mala fide, arbitary and devoid of any 4 merit. It has been further stated that in the light of Annexure-4, the petitioners have been paid their due salary for the period of services rendered and evident as per the attendance register of the concerned School, but subsequently have been stopped from discharging their duties by the order of the Deputy Commissioner, vide Memo dated 30.01.2012 and 5.5.2012 of the Respondent No.

5. Being aggrieved by the aforesaid order of termination and left with no other efficacious, alternative and speedy remedy, the petitioners have been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for mitigating their grievances.

3. Heard Mr. Rupesh Singh, learned counsel for the petitioners and Mr. Soumitra Baroi, learned J.C. to G.P.-VI for the respondent-State.

4. Counter affidavit has been filed on behalf of the respondent no.4, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the instant writ application has been filed with a prayer for quashing of order as contained in Memo No. SSA/36, dated 30.1.2012 (Annexure-5) issued by the respondent no. 3 as well as for quashing the Memo No. 117, dated 5.5.2012 (Annexure-6), issued by the respondent no.

5. It has been averred that the petitioners were neither selected by the Village Education Committee nor selection was approved by the Block Education Committee, which is required as per Rule. It has been further averred that the petitioners were working in the School merely on the ground that the petitioners' name were listed by the then D.S.E. Saraikella-Kharsawan, whereas, no selection procedure was followed, nor the selection was approved by the Block Education Committee. In view of the aforesaid submissions, it has been contended by the learned counsel for the respondents that the writ petition is not tenable and is liable to be dismissed in limine.

5. Mr. Rupesh Singh, learned counsel for the petitioners has vehemently submitted that the order of the Respondent No. 3 to the extent of restraining the petitioners from discharging their duties amounting to removal was uncalled for in view of the fact that the 5 petitioners had neither made any prayer to that extent before this Court nor had they made any claim/representation before the Respondent No. 3, but the Respondent No. 3 in the garb of compliance of the order of this Court, arbitrarily passed the order of implied removal of the petitioners restraining them from discharging their duties. Learned counsel for the petitioners has submitted that in the light of Annexure-1 Series, it is evident that the petitioners were appointed after selection by the Village Level Selection Committee and by the order of the Respondents-authorities themselves and now they cannot be permitted to turn around and challenge the appointment of the petitioners on grounds, which amounts to dereliction of duties on their part in as much as necessary approval, if any, by the Block Education Committee is under the domain and power of Respondent Nos. 4 and 5 and it is the duty of the concerned Respondents to ensure the procedural formalities after the selection of the petitioners as Para-Teachers by the Village Level Education Committee and it is not the case of the respondents- authorities that the selection of the petitioners was refused by the Block Level Education Committee. Learned counsel for the petitioners has submitted that the reasons cannot be given in the counter affidavit and it must be given in the impugned order, itself. The impugned order is not giving any reason, whatsoever, against the petitioners and, therefore, subsequent filing of counter affidavit is of no help to the respondents. Learned counsel for the petitioners has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC405 6. Learned counsel for the petitioners apart from assailing the impugned order of termination, on the basis of facts available on records, has also referred to the decision of this Court in the case of Dewanti Devi Vs. State of Jharkhand & Ors. as reported in 2015 (4) JBCJ150(HC). In the said judgment in paragraph 5 to 7 exhaustive reasons have been enumerated and the counsel for the petitioners has vehemently submitted that the case of the petitioners is squarely covered by the well reasoned order of this Court reported in the case of 6 Dewanti Devi (supra).

7. Countering impassioned submissions of the learned counsel for the petitioners, Mr. Soumitra Baroi, learned J.C. to G.P.-VI for the respondent-State has submitted that the petitioners were neither selected by the Village Education Committee nor selection was approved by the Block Education Committee, which is required as per Rule. Learned counsel for the Respondent-State has submitted that the petitioners were working in the School merely on the ground that the petitioners' name were listed by the then D.S.E. Saraikella-Kharsawan, whereas, no selection procedure was followed, nor the selection was approved by the Block Education Committee.

7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : - (i) The petitioners were appointed as Para-Teachers in Government Middle School, Murup, after due process of selection and thereafter, the petitioners rendered their duties honestly, sincerely, diligently for almost uninterruptedly for a period of two years to the satisfaction of the respondents. The letter of appointment is not disputed. The findings of the Deputy Commissioner is not correct. (ii) The selection of the petitioners was cancelled without notice. The impugned order vide Annexure-5 suffers from gross illegality as the principles of natural justice has not been followed nor a full fledged enquiry has been conducted by giving adequate opportunity to the petitioner to defend their case. Therefore, the so called allegations/enquiry which resulted into culmination in the termination of services of the petitioner is illegal, unsustainable and there has been gross violation of principles of natural justice. The Hon’ble Apex Court in the case of Managing Director ECIL Hydrabad & Ors. Vs. B. Karunakar & Ors. as 7 reported in (1993) 4 SCC727held as under:

61. ........“The proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. The principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Article 14, 21 and 311 (2) of the Constitution, but also, the principles of natural justice............” (iii) Learned counsel for the respondents has heavily relied upon the counter affidavit but the statement in the counter affidavit is not reflected in the impugned order and, as such, it cannot be countenanced by this Court. (iv) It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC405in paragraph 8 as under:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J.

in Gordhandas Bhanji : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” (v) The punishment awarded vide the impugned order dated 8 30.1.2012 (Annexure-5) appears to be harsh and shockingly disproportionate being violative of Articles 14, 16, 19 and 21 of the Constitution of India. The Hon’ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC372in the placitum held as under: “However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.”

8. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned orders as contained in Memo No. SSA/ 36, dated 30.1.2012 (Annexure-5) issued by the respondent no. 3 and in Memo No. 117, dated 5.5.2012 (Annexure-6), issued by the respondent no. 5, being not legally sustainable, are hereby quashed and set aside. The Deputy Commissioner, Seraikella-Kharsawan (respondent no.

3) is directed to pass appropriate order if petitioners approaches before the authority concerned within three weeks from the date of receipt of copy of this order and pass an appropriate order within reasonable period, preferably within a period of four weeks in view of the decision of this Court rendered in the case of Dewanti Devi (Supra). The disposal of the writ application shall not preclude the respondents to take de novo action in accordance with law, if so advised.

9. Accordingly, the writ application is allowed and disposed of with aforesaid observations. (Pramath Patnaik, J.) APK


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