Sushila Kumari vs The State of Jharkhand and Others

Pramath Patnaik, J.—In the instant writ application, the petitioner has inter alia prayed for issuance of a writ, order or direction particularly in the nature of certiorari for quashing the Memo No. 5529(S) dated 11.06.2013 (Annexure-5) issued under the signature of the Engineer-in-Chief, Road Construction Department, Government of Jharkhand, Ranchi (Respondent No. 3) by which the services of the petitioner has been terminated with immediate effect and also for quashing the office order contained in Memo No. 999 dated 19.06.2013 (Annexure-6) issued under the signature of the Executive Engineer, Road Construction Department, Road Division, Chatra (Respondent No. 4) pursuant to the impugned order dated 11.06.2013 (Annexure 5) and for direction in the nature of mandamus commanding/directing the respondents not to give effect to the impugned orders dated 11.06.2013 (Annexure-5) as well as 19.06.2013 (Annexure-6) which have been passed after a lapse of more than 18 years of the appointment of the petitioner.

The facts, as described in the writ application, in a nutshell, is that the petitioner was appointed as Correspondence Clerk on the sanctioned and vacant post in the revised pay scale of Rs. 1200-1800 by the then Superintending Engineer, Road Construction Department, Road Circle, Ranchi vide office order contained in Memo No. 434 dated 29.05.1995 and in pursuance to the said appointment the petitioner has joined in the said post on 01.06.1995. The petitioner has discharged her duties to the satisfaction of her superior authorities having an unblemished service career. In due course the petitioner passed the Hindi Drafting and Noting Examination as well as the Accounts Examination and also been granted the revised pay scale in the pay scale of Rs. 4000-6000 with effect from 01.01.1996 being approved by the District Accounts Officer, Chatra. It has also been stated in the writ application that the petitioner has been granted the benefit of 6th Pay Revision being approved by the District Accounts Officer, Chatra. While continuing as such, to the utter surprise and consternation the show cause notice has been issued vide Memo No. 6153(S) dated 28.08.2012(Annexure-4) under the signature of the Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi. Pursuant to the show cause notice vide Annexure 5 the petitioner submitted her reply. It has also been alleged in the writ application that without considering the reply to the show cause filed by the petitioner the impugned order of punishment of termination has been passed vide Annexures 5 and 6 to the writ application, thereby directing her to hand over charges.

Being aggrieved by the impugned order annexures 5 and 6 the present writ application has been filed by the petitioner under Article 226 of the constitution of India invoking extraordinary jurisdiction of this Court for redressal of her grievances.

Per-contra the counter-affidavit has been filed by the respondent Nos. 1 and 2 justifying the impugned order at annexures 5 and 6. In the counter-affidavit it has been stated that the complaint petition was received in the headquarter of department, wherein it has been alleged that the appointment of the petitioner was illegal and enquiry has been conducted on the allegations made in the aforesaid complaint petition and the enquiry officer submitted his report after completing the enquiry. The enquiry officer has reported in his enquiry report that the then Superintending Engineer, Road Circle, Ranchi had illegally appointed the petitioner without following the procedure laid down by the Government for appointment on the Government posts. On the basis of above enquiry report a point wise specific show cause was asked from the petitioner vide letter No. 956(s) dated 26.02.2010 but the petitioner had not replied the specific point wise queries asked from her in the above show cause notice. Photo copy of the letter No. 956(s) dated 26.02.2010 has been annexed as annexure A to the counter affidavit. Again a show cause was asked from the petitioner along with the copy of above enquiry report as to why her services should not be terminated on the basis of her illegal appointment vide letter No. 6153(s) dated 28.08.2012 but the petitioner failed to establish the legality of her appointment on the post of the Correspondence Clerk as the clarification submitted by her on 16.04.2013 vide Annexures B and C to the counter-affidavit, was not found satisfactory and petitioner was terminated from her services on the ground of her illegal appointment. Moreover due procedure of appointment for the post of Correspondence Clerk was not followed in the case of petitioner''s appointment, she was a back-door entrant in the Government service. It has further been submitted that in the counter-affidavit, the appointing authority of the petitioner, the then Superintending Engineer, Road Circle, Ranchi has been punished in the aforesaid illegal appointment matter vide notification contained in memo No. 5260(s) dated 27.07.2012 which has been annexed as annexure D to the counter affidavit. In the counter affidavit, it has further been submitted that petitioner''s termination order is totally proper and legal being based on the established findings of the enquiry officer according to the ruling laid down by the constitutional Bench of the Hon''ble Apex Court.

Heard Mr. Krishna Shankar, learned counsel for the petitioner and Mrs. Chaitali C. Sinha, J.C. to AAG, for the respondent.

Learned counsel for the petitioner has vehemently submitted that the impugned order of termination has been passed after lapse of more than 18 years of services rendered by the petitioner although there has been no procedure of irregularity but at this point of time after 18 years of service by the impugned order the petitioner has been visited with civic consequences. Learned counsel for the petitioner further urged that her case is covered by the decision rendered by this Court in W.P.(S) No. 556 of 2010 "Hari Nandan Singh v. The State of Jharkhand and others", which has been confirmed by the Division Bench of this Court in L.P.A. No. 519 of 2012 dated 27th March, 2014. Learned counsel for the petitioner further submits that the case of the petitioner is squarely covered by the principle enunciated in the case of State of Karnataka and Others Vs. M.L. Kesari and Others, AIR 2010 SC 2587 : (2011) 111 CLT 209 : (2010) 127 FLR 12 : (2010) 8 JT 96 : (2010) 4 LLJ 583 : (2010) 9 SCC 247 and in batch of cases "State of Jharkhand and Others v. Kamal Prasad and Others" in Civil Appeal No. 4809 of 2014 SC. Learned counsel for the petitioner further submits that assuming for the sake of argument that no procedure has been followed at the initial stage of appointment since she has rendered 18 years of service impugned order of termination at this distant of time has caused insurmountable difficulties apart from visiting the petitioner with civic consequences. Learned counsel for the petitioner further submits if the case is remitted to the respondents for consideration afresh in the light of the decision stated hereinabove, the grievances of the petitioner would be mitigated. Learned counsel for the respondents does not raise any serious objection.

On perusal of the pleadings and counter-affidavit, it appears that as the petitioner rendered 18 years of service prior to termination from services, the similar benefit ought to be extended to the petitioner like that of Harinandan Singh''s case, in L.P.A. No. 519 of 2012 dated 27th March, 2014.

In view of the aforesaid facts, reasons and judicial pronouncements, the impugned order of annexures 5 and 6 are quashed and the respondents are directed to consider the case of petitioner afresh in the light of the decision rendered in W.P.(S) No. 556 of 2010 vide annexure 7 which has been confirmed in L.P.A. No. 519 of 2012 dated 27th March, 2014 within a period of two months, if the decision goes in favour of the petitioner the service benefits shall be extended to the petitioner.

With the aforesaid observations and direction, the writ petition is disposed of.