Manoj Kumar vs Jharkhand State Electricity Board

Pramath Patnaik, J

Since identical issues are involved in both the writ applications, with the consent of learned counsel appearing for the parties, both the writ

applications were heard together and by this common order, they are being disposed of at the admission stage itself.

In W.P. (S) No. 1248 of 2010, the petitioners have inter alia prayed for quashing office order dated 07.05.2009 whereby implementation of different

orders by which the petitioners appointed on the post of Junior Accounts Clerk, Lower Division Assistant and Routine Clerks; has been stayed and

further prayer has been made for direction upon the respondents to post the petitioners on the post of Junior Accounts Clerk, Lower Division Assistant

and Routine Clerks and pay all consequential benefits.

In W.P. (S) No. 1269 of 2010, the petitioners have prayed for quashing office order dated 27.10.2009 whereby order of promotion of these

petitioners in Grade-III has been cancelled and further prayer has been made for direction upon the respondents to treat the petitioners as having been

validly promoted to the respective posts under Grade â€" III w.e.f the dates of appointment/promotion.

Facts, which are necessary to adjudicate the matter, in brief is that the petitioners were initially appointed on Class IV posts in Jharkhand State

Electricity Board in between 1991 to 2006. The Board vide resolution dated 02.12.1998 decided to fill up the vacant post on non-technical Class III

posts. Thereafter, the Director (Personnel), J.S.E.B made internal communication for internal appointment on non-technical Class-III posts, informing

therein that the employees, who have completed two years of service on 30.09.2008 and have requisite qualification for appointment on the post of

Junior Accounts Clerk, Lower Division Assistant and Routine Clerks, may submit their application by 31.08.2008. Thereafter, the interested

candidates including the petitioners submitted their application in prescribed format and after scrutiny of application form, they were allowed to sit in

the examination held on 15.02.2009. It has further been averred that list of all successful candidates was published on the same day, in which, the

names of the petitioners were reflected and petitioners were appointed on the post, for which they were fulfilling the eligibility criteria. It has further

been averred that after their appointment the petitioners started working on the post on which they were appointed to the utmost satisfaction of

authorities concerned, but all of a sudden, the respondents-authorities issued office order dated 07.05.2009 whereby implementation of different orders

of appointment on the post of Junior Accounts Clerk, Lower Division Assistant and Routine Clerks; has been stayed, so far petitioners in W.P. (S)

No. 1248 of 2010 is concerned and further issued office order dated 27.10.2009 whereby order of promotion of these petitioners in Grade-III has been

cancelled, so far petitioners in W.P. (S) No. 1249 of 2010 is concerned, which are impugned in this case.

In the writ applications, it has further been averred that being aggrieved with the issuance of impugned orders, the petitioners through their Service

Association and in individual capacity submitted representation before the competent authority but it did not evoke any response. However, an enquiry

committee was constituted to enquire into the matter, who submitted its report basing on which, the respondents-authorities vide order dated

22.07.2010 the appointment/promotion in question, which were kept in abeyance was cancalled, which the petitioner challenged by way of filing

amendment petition being I.A. No. 2782 of 2010.

Furthermore, during pendency of the writ application, the Board issued order for holding departmental examination for the employees including the

post of Junior Accounts Clerk, which the petitioner has challenged by way of filing I.A. No. 1566 of 2012.

Heard Mr. Indrajit Sinha, learned counsel for the petitioner in W.P. (S) No. 1248 of 2010; Mr. Nityanand Pd. Choudhary, learned counsel for the

petitioner in W.P. (S) No. 1269 of 2010 and Mr. Amitabh, standing Counsel for the respondents-Board.

Learned counsel for the petitioners submitted that the impugned orders have been passed on non-existent and non-est grounds. It has further been

submitted that the appointment of the petitioners on the post of L.D.A/Junior Accounts Clerk/Routine Clerk was made by the competent authority, on

the sanctioned strength of posts through internal advertisement, in accordance with law and rules prescribed by the Board; as such the petitioners are

entitled to salary on the post they were appointed. It has further been submitted that the impugned orders are hit by principles of natural justice as

before issuance of impugned orders the petitioners have not been given any notice or show cause. Learned counsel for the petitioners further

submitted that no reason has been assigned for staying the implementation of the appointment order of the petitioners or for cancellation of

appointment order vide impugned orders.

Learned counsel for the petitioners submitted that as a matter of fact, from bare perusal of note-sheet of the file relating to internal appointment, it

appears that there was mention that since after creation of J.S.E.B, no external vacancy was advertised and sufficient number of vacancies are

existing in Class III nontechnical cadres and for want of staff in these posts, the work has been suffering, therefore decision was taken that for one

transaction 50 % of each total vacancy should be filled up through internal candidate, who possess requisite qualification by deviating Board’s

Standing Order dated 07.01.1999, and for which the Chairman has rightly given approval who is the Chief Executive of the Board; hence no illegality

or irregularity was done in appointment of the petitioners.Â

Learned counsel for the petitioners further submitted with vehemence that it is not the case where any misconduct is alleged to have been

committed by the petitioners, but for no fault or misrepresentation on the part of petitioners, they have been subjected to suffer. In support of his

submission, learned counsel for the petitioners referred to the decision rendered in the case of Vikas Pratap Singh & Ors Vs. State of ChhattisgarhÂ

& Ors as reported in (2013) 14 SCC 494.

As against this, learned counsel for the respondents-Board submitted that the Board vide its Standing Order dated 07.01.1999 has already decided

that the percentage of vacancies against sanctioned posts was to be filled by departmental candidates by making internal advertisement, which should

not exceed the pertantage as indicated against each of the posts, but while making such appointment the standing Order was not followed in true spirit,

in which neither percentage of quota on each post was mentioned nor quota for reserve categories was mentioned in the internal advertisement, so

published. It has further been averred that for the irregularities, a three member enquiry committee was constituted, which submitted its report vide

order dated 27.06.2009 and basing on such report, the Board has drawn departmental proceeding against the erring officers, who were responsible for

arranging alleged internal appointment and appointment made on promoted class-III posts of Meter Reader, Sectional Clerk and Correspondence

Clerk was cancelled vide order dated 27.10.2009. Drawing attention of the Court to supplementary affidavit dated 14.05.2018, filed on behalf of

respondents, learned counsel for the respondents-Board submitted that after cancellation of internal appointment vide order dated 07.05.2009 till date

no appointment has been made but vide Internal Advertisement No. 05/16, the Board has initiated appointment process, but, on query, it was admitted

that till date the same has not been finalized.

On close scrutiny of the materials available on record and after bestowing my anxious consideration to the pleadings available on record, I am of

the considered view that the petitioner has been able to make out a case for interference for the following facts, reasons and judicial pronouncements:

 (i).The petitioners, who were working on Class IV posts in different departments of Board, applied for and were appointed on non-technical Class

III posts, but their appointment was stayed and later on cancelled by issuance of impugned orders stating that Board’s Standing Order 07.01.1999,

which says that ‘the percentage of vacancies against sanctioned posts to be filled up by the departmental candidates by making internal

advertisement should not exceed the percentage as indicated against each in the following posts’, has not been followed in true spirit.

 (ii).In service law jurisprudence, it is well settled that no legal right is accrued for appointment of the candidate, who has obtained the employment

by means of fraud, mischief or misrepresentation. Equally, the Court must not be oblivious of  the fact that a person erroneously appointed on a post

must not enjoy the taste of sweet fruit jeopardizing the interests of meritorious and worthy candidates. But admittedly, in the case at hand, for no fault

of the petitioners they have been denied appointment on Class III posts. Though respondents-Board has come up with a case that enquiry committee

was constituted for making the appointment de hors the rule. The enquiry committee submitted its report basing on which, the officials responsible for

such irregularity in conducting the internal examination has been subjected to departmental examination, but in my considered view, would not

compensate the petitioners and would be of no help to the petitioners.Â

 (iii).Had the case been that the candidates/appointees have committed fraud, it would have justified in cancelling the selection process. But, here the

case is contrary. It is admitted case that the petitioners are the in-service candidates and they fulfilled all the eligibility criteria and qualification to be

appointed on the post in question and at one point of time, the authorities themselves offered them the promotional class III post.

 (iv).For the discussions made in foregoing paragraphs, I am of the considered view that facts of the present case is squarely covered under the

decision referred by learned counsel for the petitioner rendered in the case of Hon’ble Apex Court in the case of Vikas Pratap Singh & Ors

(Supra), where the Hon’ble Apex Court has unequivocally enunciated that where a wrongful or irregular appointment is made without any mistake

on the part of the appointee and upon discovery of such error or irregularity, the appointee is terminated, taking a sympathetic view, order of

termination ought to be quashed and appointee should be reinstated. The relevant paragraphs of Vikas Pratap Singh & Ors (Supra), is quoted

herein below:

27.Admittedly, in the instant case the error committed by the respondent Board in the matter of evaluation of answer scripts could not be attributed to

the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the

preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their

ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.

28.In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent State 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 apointees 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 qua the revised list.

29.Accordingly, we direct the respondent State to appoint the appellant 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.

30.We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages,

seniority or any other benefit based on their earlier appointment.

In the backdrop of aforesaid facts, reasons and judicial pronouncements, the impugned orders are quashed and set aside and the respondents are

directed to issue fresh order of appointment on their promotional post, on which, they were earlier promoted/decision was taken to promote, whichever

is applicable. However, in the facts of the case and as per the decision rendered in the case of Vikas Pratap Singh & Ors (Supra), it is made clear

that their appointment shall for all intents and purpose be treated as fresh appointment and they would not be entitled for any back wages, seniority or

other benefit on their earlier appointment/promotion.

Before parting with the judgment, it is also directed to complete this exercise within a period of eight weeks from the date of receipt/production of

copy of this order, particularly before the exercise of appointment as processed vide Internal Advertisement No. 05/16 to cut short the multiplicity of

litigation and to meet the ends of justice. It is made clear that this Court has neither stayed nor quashed the Advertisement No. 05/2016; only direction

has been issued to finalize the process of Advertisement No. 05/2016 after appointment of the petitioners herein. Â

With the aforesaid observations and directions, the writ applications stands disposed of. Â