KUMAR KUNAL AND OTHER vs STATE OF JHARKHAND AND OTHER

This application has been filed seeking recall of order dated 26.03.2018.

When a specific counter-affidavit in compliance of order dated 22.02.2018 was not filed, by order dated 26.03.2018 one week’s adjournment

was granted for filing an affidavit in compliance of order dated 22.02.2018, however, with cost of Rs. 5000/-.

Mr. Jai Prakash, the learned Additional Advocate-General submits that for filing an affidavit in terms of order dated 22.02.2018 voluminous record

running into more than 1700 pages were to be arranged, numbered and indexed and that is the reason why an affidavit in compliance of order dated

22.02.2018 could not be filed within time.

The explanation offered on behalf of respondent nos. 3 and 4 seems to be plausible and accordingly that part of order dated 26.03.2018 by which

cost of Rs. 5000/- was imposed upon them is recalled.

I.A No. 2804 of 2018 stands disposed of.

Counter-affidavit is taken on record, a copy thereof has already been served upon the learned counsel for the petitioners.

 W.P.(S) No. 6752 of 2017

The petitioners are aggrieved of order dated 07.10.2016 by which they were placed under suspension and directed to hand-over charge. They are

seeking a direction upon the respondents for payment of salary/honorarium to them since 01.08.2016.

The petitioners were appointed on different dates between 2003 to 2008 by the Project Director, Jharkhand State AIDS Control Society (JSACS)

and since then they are working on different posts under JSACS before they were issued show-cause notice on 07.10.2016. Their appointment was

contractual which has been extended every year; lastly it was extended by an order dated 26.04.2016. The petitioners have pleaded that the posts on

which they were appointed are need-based posts and they possess the requisite qualifications for appointment on the said posts.

In the counter-affidavit the respondent nos. 3 and 4 have taken a stand that the guidelines issued by NACO were not followed when the petitioners

were appointed by the Project Director and, in fact, the guidelines of Finance Department dated 05.07.2002 which provide the process of selection,

qualification etc. were also not followed in appointment of the petitioners. The petitioners were issued show-cause notice on 07.10.2016 to which they

have submitted their reply on different dates. Elaborating the steps taken by the respondents pursuant to complaints received in the department, the

respondent nos. 3 and 4 have pleaded that in view of the report submitted by the departmental committee on 29.03.2017, the impugned decision taken

vide letter dated 07.10.2016 is justified. With reference to revocation of suspension of seven other employees, who according to the petitioners are

similarly situated to them, the respondents have pleaded that they were selected from a wait-list prepared by JRHMS, and therefore a decision was

taken to revoke their suspension.

JSACS is formed by National AIDS Control Organisation (NACO) and it is registered under the Societies Registration Act, 1860. Work and

activities of JSACS pertain to prevention of HIV/AIDS and treatment of the people infected by such disease. It is stated that JSACS is funded by

NACO which is funded by World Bank and the Government of India. The Memorandum of Association of JSACS under Clause K(i) confers powers

upon the Project Director to fill up posts within the budget, on a consolidated salary as sanctioned/fixed by the State or Central Government.

On admitted facts, qualification of the petitioners for appointment on the posts on which they were appointed has not been challenged by the

respondents, in the counter-affidavit. They have continued in service for a decade and no complaint on their performance has been received by the

respondents. In fact, extension of the petitioners’ service every year is itself an indicator of good performance of the petitioners. There is no

allegation of breach of terms of their appointment by the petitioners. There is no allegation of securing appointment through fraudulent means. From

the materials produced by the respondents in the present proceeding it is apparent that the reason why a Committee was constituted to look into the

legality of appointment of the petitioners and others is, the letters received in the Chief Minister’s Secretariat and a public interest litigation vide

W. P.(PIL) No. 686 of 2017 filed in this Court. It is stated that the aforesaid public interest litigation was never taken on Board for hearing and, in

fact, on 18.08.2017 it was last listed before Lawazima and thereafter it has not been further listed for hearing.

The learned counsel for the petitioners has referred to the file notings pertaining to enquiry against the petitioners to submit that discrimination with

the petitioners vis-a-vis seven other employees was not initially approved by the Departmental Minister, who has also noticed that the petitioners have

now crossed the maximum age for appointment.

In the counter-affidavit the respondents have now taken a stand that in view of the report submitted by the departmental enquiry committee on

29.03.2017 petitioners’ appointment was illegal and, thus, liable to be terminated. However, Mr. Jai Prakash, the learned Additional Advocate-

General submits that in view of the enquiry report dated 29.03.2017 a final decision in the matter is yet to be taken.

In the first place, it needs to be recorded that the enquiry report dated 29.03.2017 would indicate that no conclusive finding on the alleged illegality

committed in appointment of the petitioners has been recorded by the departmental committee. The complaints which were received in the Chief

Minister’s Secretariat written by Swaraj Foundation, Koderma and one Ravi Shankar Prasad refer to continuation of Sudeep Sanyal on the post of

Statistical Officer, a post which according to the complainants was abolished. There is no complaint on illegality or irregularity in appointment of any of

the petitioners except, the said Sudeep Sanyal. Under MoU & Contract Service Agreement executed between JSACS and the petitioners, termination

of the service agreement can be under Clause H on the ground of improper conduct by the appointee. Service conditions of the petitioners entitle them

for 10 days’ medical leave,

30 days’ earned leave, travelling and dearness allowance and maternity leave in case of female appointee as per the Rules of Jharkhand

Government. Under Clause 4 of Finance Department letter dated 05.07.2002, conduct rules applicable to the Government employees have been made

applicable to the contractual employees. Admittedly, no regular departmental proceeding has been initiated against the petitioners, for no charge-memo

has been served to them; only a show-cause notice was issued on 07.10.2016. In the above facts the enquiry report dated 29.03.2017, at best, can be

a preliminary fact finding report, which may form foundation for initiating a regular departmental enquiry against the petitioners. Filing of voluminous

records running into more than 1700 pages, prima facie, establishes that a decision on the alleged illegality/irregularity in appointment of the petitioners

cannot be inferred lightly. It is a matter of record that the petitioners were placed under suspension on 07.10.2016 without a show-cause notice and

payment of honorarium to them was stopped. In any case suspension of the petitioners cannot be continued any further, particularly in view of the

aforesaid facts and the enquiry report dated 29.03.2017.

In view of the aforesaid discussions, the impugned orders of suspension contained in Annexure-5 series, all dated 07.10.2016 are quashed.

Consequently, the impugned order contained in letter dated 07.10.2016 vide Annexure-7 stands quashed. The petitioners shall be assigned their duties,

within two weeks and they shall be paid salary/honorarium for the period 01.08.2016 to 06.10.2016, as well as, for the current period. A decision on

payment of salary/honorarium for the period from 07.10.2016 shall be taken by the competent authority.

The writ petition stands allowed, in the above terms.