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Judgment
Both the aforesaid writ applications have been heard together since the facts delineated and emanated therein and the reliefs sought for are more or less similar, with the consent of the respective counsels, the matters have been heard analogously and are being disposed of by this common judgment. W.P. (S) No. 4837 of 2009
The captioned writ application has been filed, praying, inter alia, for issuance of an appropriate writ/direction for quashing the Office order No. 645 dated 29.05.2001 (Annexure-13), issued by the respondent no. 5, whereby the service of the petitioner has been terminated with retrospective effect i.e. from 31.05.1986 (Annexure-3) and further to reinstate the service of the petitioner with all consequential benefits of back wages and further for quashing the order dated 12.06.2009, whereby the representation of the petitioner for review of his order of termination dated 29.05.2001, as contained in Order No. 645, has been rejected and further for issuance of an appropriate direction, restraining the respondents from compelling the petitioner to vacate his residential accommodation, which has been allotted to him, while he was in service and to that effect, various notices have been issued.
Sans details, the facts, as disclosed and delineated in the writ petition are that the petitioner, a Graduate trained in typing, was working on daily wages in the office of Divisional Forest Officer, wildlife, Division, Ranchi as Asstt.-cumTypist from 1983 to 1985. It has been averred that the petitioner applied for regular appointment on a recommendation of the then Divisional Forest Officer, Wildlife Division, Ranchi and Conservator of Forest Wildlife Circle, Ranchi-2, accordingly, he was appointed to the post of Asstt.-cum-Typist in the scale of Rs.580-860/- by the Addl. Chief Conservator of Forest cum Chief Wildlife Warden, Bihar, Ranchi vide his Office Order No. 1, dated 20.12.1985 and posted in his Office and after the petitioner joined his service. To the utter consternation of the petitioner, after about 5 months, the above authority who made appointment to the petitioner issued an Office Order No. 6, dated 29.05.1986 and the same was communicated to the petitioner vide memo no. 8, whereby the petitioner came to know about his termination from 31.05.1986. The service of the petitioner along with others, who were terminated earlier and order was kept in abeyance was made permanent and confirmed after completion of his 3 years of service against the duly sanctioned permanent post by the Chief Conservator of Forest-cum-Chief wildlife Warden, Bihar, Ranchi by virtue of an Office order contained as memo no. 1233 dated 29.12.1993 and the name of the petitioner appears at Sl. No. 2. It has been further averred that when the pay scale of the petitioner along with two others was downgraded, they moved before the Ranchi Bench of the Patna High Court in C.W.J.C. No. 1026 of 1998 (R) challenging the order dated 23.12.1997 and 22.11.1997, whereby their pay scale was in the scale of Rs.580-860/- and it was ordered to receive the amount paid excess to them and C.W.J.C. No. 1026 of 1998 (R) was dismissed vide order dated 16.08.1999 on the ground that the petitioner alongwith others were on the post of Asstt.cum-Typist in the scale of Rs.580-860/- and as such they could not have been placed in the scale of Rs.580-965/-. In the meantime, after bifurcation of the then State of Bihar, the service of the petitioner was placed within the jurisdiction of the State of Jharkhand. The then Chief Conservator of Forest-cum-Chief Wild Life Warden, Ranchi vide his letter no. 645, dated 29.05.2001 informed by virtue of letter dated 29.05.1986, service of petitioner had been terminated from 31.05.1986. It has been further averred that when the matter of termination of the petitioner alongwith others came to the knowledge of the Government, then the Additional Secretary, Forest and Environment, Department, Jharkhand vide his letter contained in memo no. 3585 dated 20.09.2001 directed the Chief Forest cum Chief Wild Life Warden, Ranchi to keep the letter of termination in abeyance. It has been further averred that although the order of termination of the petitioner was kept in abeyance and the petitioner gave his joining, but the petitioner was not being paid his salary for which, he kept running from pillar to post. It has been further averred that the Chief Conservator of Forest, Jharkhand, Ranchi vide his letter no. 263, dated 27.02.2007 communicated to the petitioner, that the Govt. decided not to consider the case of the petitioner for reinstatement in service after his termination which too was resorted to without show cause notice like earlier ones which were kept in abeyance. In this way, it transpires that the termination of the service of the petitioner in spite of his satisfactory service record of more than 21 years is illegal and whimsical act on the part of the Government authorities. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.
Counter affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the office of the Additional Chief Conservator of Forestscum-Chief Wildlife Warden, Bihar was sanctioned during the financial year 1985-86 for a period of five months. Ten (10) posts including four (4) posts of assistant-cum-typist in the scale of Rs.580-860/- were created for the said office. It has been further averred that against three (3) of the said four (4) posts of assistant-cum-typist, illegal and irregular appointments of Sri Raghuvendra Mishra, Rajnath Singh and Brajesh Kumar were made by the then Additional Chief Conservator of Forest without observing due formalities.
A rejoinder to the counter affidavit dated 22.02.2011 has been filed on behalf of the petitioner, wherein, it has been stated that the respondents authorities have not followed the principle of natural justice, as enshrined under Article 311 (2) of the Constitution of India and hence the order of termination dated 29.05.2001 is in gross violation of the principles of natural justice. It has been further stated that if any daily wager has been appointed prior to 1.8.1985 and if has worked regularly for a period of 240 days, his services ought to have been regularized under regular establishment. Here in the instant case, the petitioner has worked as daily wager on 14.9.1983 and prior to 1.8.1985, he had already completed 240 days of regular service and hence he became entitled to be considered for regularization on the post on which he was working as daily wager. W.P. (S) No. 3310 of 2011
In the instant writ application, the petitioners have, inter alia, prayed for issuance of an appropriate writ in the nature of certiorari for quashing the order dated 29.05.2001 (Annexure-13), as contained in Letter No. 645, issued under the signature of the respondent no. 4, whereby the services of the petitioners have automatically been removed and further for quashing the order dated 23.2.2007, which has been issued by respondent no. 2, whereby the review application filed by the petitioners for recalling the order dated 29.05.2001 has been rejected and further for quashing the communication dated 12.06.2009, whereby petitioners have been communicated that their services have been found to be illegal and further for issuance of an appropriate direction commanding upon the respondents to forthwith reinstate the petitioners in services and, thereafter, to release all consequential benefits in their favour alongwith interest.
The facts, as disclosed in the instant writ application, is that the petitioner no. 1 has been appointed on the post of Typist in the pay scale of Rs.580-860/- against the sanctioned post vide letter no. 87 dated 12.12.1985 while petitioner no. 2, who was working as daily wager, was appointed on 18.1.1986 vide office order no. 4 to the post of Assistant-cum-Typist in the pay scale of Rs.580-860 against the sanctioned post by the competent authority. It has been further averred that the services of the petitioners have been terminated with effect from 31.05.1986 vide order dated 29.5.1986. However, the order of removal passed on 29.05.1986 was kept in abeyance vide office order no. 96/C dated 21.06.1986 by the Principal Chief Conservator of Forests, Bihar. It has been further averred that when the matter with respect to illegal appointment has been sent before the Department of Personnel & Administrative Reforms of the erstwhile State of Bihar, then a Circular was issued on 22.04.1994, whereby the Department of Personnel & Administrative Reforms of the erstwhile State of Bihar has taken a decision to follow the same principle, which was issued on 31.12.1994. It has been further averred that the said Circular was sent before the Secretaries of all the departments vide communication dated 31.12.1994 to take appropriate and necessary action in pursuance of the same and to permit all thirty Typists for their appearance in the departmental typist test. Thereafter, both the petitioners alongwith others had appeared at the typing test, wherein, they have been declared successful vide order dated 29.08.1995 and in view thereof, the services of the petitioners have been confirmed with effect from 21.12.1988 and 18.1.1989 and thereafter, the petitioners had started discharging their duties without any complaint. Thereafter, an order was issued on 29.5.2001, whereby the services of the petitioners have been cancelled in supersession of the order of stay, granted in this regard by the department. Being aggrieved by the impugned order dated 29.05.2001 (Annexure-13) whereby the service of the petitioner has been terminated, the petitioners have filed the instant writ application for redressal of their grievances.
Heard M/s. R. Krishna and Saurabh Shekhar, learned counsels for the petitioners and Mr. Himanshu Kr. Mehta, learned A.A.G. and Ms.Kanchan Kumari, learned J.C. to A.A.G. [In W.P. (S) No. 4837 of 2009] and Mr. Anshuman Kumar, learned J.C. to A.G. [In W.P. (S) No. 3310 of 2011] appearing for the respondent-State.
Counter affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that both the petitioners were appointed on purely temporary basis with the condition that they might be terminated without any prior information. It has been further averred that the petitioners were appointed through back door without observing the laid down procedures, hence, their services were terminated.
Mr. R. Krishna, learned counsel for the petitioner has vehemently submitted that the respondent authorities has passed the impugned order of termination dated 29.05.2001 (Annexure-13) without holding the departmental enquiry properly, without giving any opportunity to cross examine the witnesses, without serving the copy of the enquiry report and also without issuance of show cause notice and in violation of the principles of natural justice. Learned counsel for the petitioner further submits that due to inadvertence and bona fide mistake, the petitioner could not challenge the order dated 12.06.2009, whereby the representation filed by the petitioners for review of the order of termination dated 29.05.2001, as contained in order no. 645, has been rejected and as such, the petitioner by way of an interlocutory application being I.A. No. 585 of 2011 challenged the said order dated 12.06.2009 and also prayed for restraining the respondents from compelling the petitioner to vacate the residential accommodation, which has been allotted to him while he was in service and to that effect various notices have been issued.
Per contra, learned counsel for the respondent-State has vociferously submitted that the petitioners were appointed through back door without observing the laid down procedures, hence, their services were terminated. Learned counsel for the respondent-State further submitted that the notice for eviction from house was correct since they were terminated from the service.
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 petitioners have been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : - (i) The impugned order of termination is not sustainable in the eyes of law since, it cannot be passed to give the order of termination effected with retrospective effect, which has been done in the instant case by issuing the order dated 29.05.2001 since the retrospective dismissal is not permissible in the service jurisprudence and the order if passed for termination or removal of a person from service will always be prospective and it cannot be retrospective.
(ii) The services of the employee once regularized cannot be revoked and that the doctrine of promissory estoppel is not really based on the principle of estoppel, but it is a doctrine evolved by equity in order of prevent injustice and it can be the basis of a cause of action. The view of this Court is further fortified by the judgment of the Hon''ble Apex Court rendered in the case of Surya Narain Yadav and others-versus-Bihar State Electricity Board and others reported in (1985) 3 SCC 38.
(iii) Since, this Court, while exercising the writ jurisdiction under Article 226 of the Constitution of India, is not supposed to enter into the complicated question of fact, as to whether, the respondents have given clean chit to 27 persons and penalized the 3 persons including the petitioners is justified and proper in the eye of law therefore, it would be appropriate to quash the impugned order.
(iv) The appointment of such employees should not be illegal, even if irregular, where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. The view of this Court is further fortified by the judgment of the Hon''ble Apex Court rendered in the case of State of Karnataka and others-versus-M.L. Kesari and others reported in (2010) 9 SCC 247
On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order dated 29.05.2001 (Annexure-13), issued by the respondent no. 5 (Annexure-3 in W. P. (S) No. 4837 of 2009) and (Annexure-4 in W. P. (S) No. 3310 of 2011) being not legally sustainable is hereby quashed and set aside.
With the aforesaid observations and directions, both these writ petitions (W.P. (S) No. 4837 of 2009 with W.P. (S) No. 3310 of 2011) stand allowed.