IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5441 of 1997 Ram Babu Mahto, S/o Ram Khelawan Mahto, resident of Village Gamharia, P.S. Bela, Distt. Sitamarhi. ------ Petitioner Versus 1. The State of Bihar. 2. District Magistrate, Sitamarhi. 3. Superintendent of Police, Sitamarhi. 4. Sub Divisional Officer, Sitamarhi East. 5. Officer-in-charge, Bela P.S., Distt. Sitamarhi. ---------- Respondents 1st Party 6. Ram Punit Rai, S/o Sheo Rai, resident of Village Changerwa, P.S. Bela, Distt. Sitamarhi. ---------- Respondent 2nd Party ----------- 5 13.5.2011 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows: 2(i) A writ in the nature of certiorari quashing the order and direction of the Respondent No.2 as contained in Annexure-6 and the follow-up action of the respondent no.5 as contained in Annexure-7, be issued. (ii) An appropriate writ, order or direction commanding the respondents 1st party to forebear from in any way with the petitioner’s services, be issued. Mr. Yogendra Mishra, learned counsel for the petitioner, would submit that when the appointment of the petitioner was made by the competent authority, namely, the Sub- Divisional Officer on the post of Chawkidar by specific order dated 29.4.1985 (Annexure- 2 2), the same could not have been terminated after a period of almost twelve years without even affording an opportunity of hearing to him. In this context, while assailing the impugned order dated 29.4.1985 passed by the Collector of the Sitamarhi district, he has submitted that as the order was passed in pursuance to the direction given by this Court in the order dated 15.3.1991 in CWJC No. 6880 of 1989 to which the petitioner of this case was not made party, that by itself had required an opportunity of hearing to the petitioner to demonstrate that whatever plea was taken by the respondent no.6 of this case (Ram Punit Rai) was wholly incorrect and that the appointment of the petitioner was made in the year 1985 on the post of Chaukidar in a valid in justified manner was not required to be interfered. Though a counter affidavit has been filed by the official respondents in this case, the respondent no.6 has not filed any counter affidavit. Today when the case has been taken up, counsel for the respondent no.6, while producing the order of this Court 3 dated 15.3.1991 in CWJC No. 6880 of 1989, would submit that he should be granted time for filing of the counter affidavit. In view of the fact that this writ application has remained pending for last fourteen years and the respondent no.6 did not care to file his counter affidavit in the intervening period, this Court is now not inclined to grant time to the respondent no.6 for filing of the counter affidavit. In fact, even otherwise, the respondent no.6 would not be in a position to controvert the only ground on which this writ application has to be allowed, namely, violation of principle of natural justice before passing of the impugned order, inasmuch as the impugned order dated 21.4.1997 (Annexure-6) itself reads as follows:- lekgj.kky;] lhrke<+h ftyk lkekU; iz'kk[kkA vkns'k ------------------------ Jh jke iquhr jk;] PkSdhnkj] Fkkuk osykdh fu;qfDr vuqeaMy inkf/kdkjh] lhrke<+h iwohZ ds i=kad 1095 fnukad 23-8-80 }kjk dh xbZ Fkh ckn esa Jh jke iquhr jk; ds LFkku ij Jh jke ckcq egrks dh fu;qfDr vuqeaMy inkf/kdkjh lhrke<+h iwohZ }kjk fnukad 9-4-83 dh cSBd esa fcuk in ls fMlfely ds vk/kkj ij dh xbZA vkj{kh v/kh{kd] lhrke<+h esa izfrosfnr fd;k gS fd izLrqr Jh jke iquhr jk; dh c[kkZLrxh ugha dh xbZ vkSj u mUgsa fuyfEcr gh fd;k x;k] fdUrq mudh txg ij jkeckcq egrks dks vuqe.My inkf/kdkjh }kjk fu;qDr dj fy;k x;k tks 4 vfu;fer gS tc fd jke iquhr jk; dks c[kkZLr ugha fd;k x;kA Jh jke iquhr jk; us ekuuh; mPp U;k;ky; es fjV ;kfpdk lh0MCyw0ts0klh0 6880@89 nk;j fd;kA mDr fjV ;kfpdk esa ekuuh; mPp U;k;ky; ;s ;g ^^vkSotoZ** fn;k fd tc jke iquhr jk; dks lsok ls c[kkZLr ugha fd;k x;k rks muds osru dk Hkqxrku D;kas ugha gqvk ftlds fy, os dkuwuh rkSj ij gdnkj FksA vuqe.My inkf/kdkjh] lhrke<+h iwohZ rFkk vkj{kh v/kh{kd] lhrke<+h }kjk jke iquhr jk;] pkSdhnkj dks lsok ls c[kkZLrxh rFkk lsok ls c<+kus dh dksbZ lwpuk muds Lrj ls Jh jk; dks ugh nh xbZ ftldh iqf"V vkj{kh v/kh{kd] lhrke<+h us vius i=kad 2091 fnukad 7-11-91 }kjk dh gSA vuqe.My inkf/kdkjh ,oa vkj{kh v/kh{kd ds izfrosnukuqlkj jke iquhr jk; dh lsok lekfIr gh muds LFkku ij jke ckcq egrks dks fu;qfDr dh xbZ tks fu;fer ugha gSA ekuuh; mPp U;k;ky; ds vkns'k ds vkyksd esa tc jke iquhr jk; dks lsok ls gVk;k ugh x;k rks muds LFkku ij Jh jke ckcq egrks dh fnukad 29-4- 85 dks dh xbZ fu;qfDr xyr gS ftls jn~n dh tkrh gSA Jh jke iquhr jk;] pkSdhnkj dks pkSdhnkj ds in ls u c[kkZLR fd;k vkSj u gh muds fo:n~/k c[kkZLrxh dh dkjZokbZ vuqe.My inkf/kdkjh }kjk dh xbZa ,slh fLFkfr esa fcuk c[kkZLrxh dh mDr in fjDr ugha gqvk vkSj muds in ij Jh jke ckcq egrks dks dh xbZ fu;qfDr dks voS/k ,oa vfu;fer lkfcr dj fn;k x;kA QyLo:I Jh egrks dh fu;qfDr dks rkRdkfyd izHkko ls jn~n djrs gq, muds LFkku ij iqu% Jh jke iquhr jk;] pkSdhnkj dks ;ksxnku djus dk vkns'k fn;k tkrk gSA lkFk gh lkFk Jh jke iquhr jk; dks fnukad 29-4-95 ls iwoZ dh mlh vof/k ds cdk;s osru dk Hkqxrku djus dk vkns'k fn;k tkrk gS ftl vof/k esa ;s dk;Zjr jgs gksa D;ksafd Jh egrks dh fu;qfDr 29-4-85 dks muds LFkku ij dh xbZ Fkh vkSj os osru dk Hkqxrku ys jgs gSa pwafd Jh jke iquhr jk; ls fnukad 29-4-85 ls dke ugha fd;k tk jgk gS] blfy, dke ugh arks osru ugh ds fln~/kkar ij Jh jke dks ;ksxnku dh frfFk ls osru dk Hkqxrku fd;k tk;sxkA vkj{kh v/kh{kd] lhrke<+h ls vuqjks/k gS fd vkns'k fu;r gksus ds ,d lIrkg ds vUnj Jh jk; dks cksl ua0 2@10 Fkkuk osyk esa ;ksxnku djk nsaA Jh jke ckcq egrks dh lsok mDr vkns'k ds vkyksd esa Lor% lekIr gks tk;sxhA g0 ftyk inkf/kdkjh lhrke<+hA Kkikad 189 fnukad 21-4-97-** makes it clear that the services of the petitioner was terminated by way of follow up measure to the order of this Court dated 5 15.3.1991 in C.W.J.C. No. 6880/1989, without using notice and/or extending opportunity of hearing to the petitioner. Moreover the official respondents in their counter affidavit have themselves admitted that the service of the petitioner was terminated even without issuing notice to him. To that extent, it would be necessary to quote paragraph no.26 of the writ application wherein the petitioner ha d made a categorical statement as with regard to the violation of principle of natural justice. Paragraph no.26 of the writ application reads as follows:- “26. That the petitioner was appointed as Chowkidar by the competent authority, which is evident from Annexure-2 itself. The services of the petitioner could not have been terminated without providing him reasonable opportunity of hearing and without disposing of the departmental proceeding against the respondent No.6. The order contained in Ann-6 and 7 are therefore, illegal, arbitrary, void and without jurisdiction.” The official respondents have answered the aforementioned submission of the 6 petitioner made in paragraph no.26 of the writ application in paragraph no.19 of their counter affidavit, which reads as follows:- “19. That in reply to the statement made in para-26 of the writ application, it is stated that the statement made in this paragraph is not correct and it is stated and submitted that the appointment of the petitioner Ram Babu Mahto was made out against any vacancy and as such the appointment so made was found illegal and as such his service has been terminated which is quite legal and proper.” It would thus become clear that the impugned order was passed only by way of carrying out the direction of this Court in the earlier writ application filed by the respondent no.6 being CWJC No. 6880 of 1989. The order dated 15.3.1991 passed by this Court in CWJC No. 6880 of 1989, having been produced by the counsel for the respondent no.6, is quoted herein below:- “Heard learned counsel for the petitioner and the State. The grievance of the petitioner is that he has been dismissed from service by an order dated 30.5.1989. However he has, prayed for quashing the communication dated 5.6.1989 (Annexure-9) wherein the petitioner was directed to show cause as to why he be not dismissed from service. 7 Pursuant to the notice dated 5.6.1989, the petitioner, it appears, filed his petition of cause on 6.6.1989. At the stage of admission itself, a counter affidavit has been filed on behalf of the respondents wherein it has been specifically stated that the petitioner has not been dismissed from service as yet. It would be relevant to quote the statement of the respondents as made in paragraphs 5 to 7 of the counter affidavit in extensor:- “5. That from the perusal of Annexure A of this counter affidavit, it is evident that the officer-incharge, Bela has been directed to obtain show cause from the petitioner as to why he should not be dismissed and the petitioner submitted of his explanation in response to he said show-cause. No order of dismissal of the petitioner has been passed as yet. A true copy of the explanation submitted by the petitioner is annexed herewith and marked as Annexure-B which forms part of this counter affidavit. 6. That before the authorities could passed final order on his show-cause the petitioner moved this Hon’ble Court by this petition. 7. That in absence of any final order against the petitioner which may be appealable, the present writ petitioner was 8 prematured and not maintainable that the petitioner has tried to mislead the Hon’ble Court by creating an impression that the order contained in Memo no. 898 dated 30.5.1989 was an order of dismissal which is factually incorrect and the petition is liable to be dismissed for misleading this Hon’ble Court.” In view of the submissions made in the Counter affidavit, the apprehension of the petitioner that he has already been dismissed from service has got no substance. It has been further stated that the petitioner has not been paid his salary as yet. We fail to understand that when the petitioner has not been dismissed from service, why his salary etc. have not been paid to which he is legally entitled. In the background of the facts aforementioned, this writ application stands disposed of.” From reading of the aforementioned order, it would be clear that this Court was never appraised with the fact that the post held by the petitioner had already been filled up by the appointment of the respondent no.6 (petitioner of CWJC No. 6880 of 1989). Mr. Mishra has in fact produced the certified copy of the writ application filed 9 by Respondent no. 6 which would go to show that the petitioner of this case was also not made party to CWJC No. 6880 of 1989 and this Court in fact had also not directed for reinstatement of the Ram Punit Rai (Respondent no. 6) in his writ application and had only disposed of the writ application by observing that the same was premature, inasmuch as, no final decision had been taken on the second show cause notice issued to him on 5.6.1989. The Collector of the Sitamarhi district, therefore, if he had proceeded to pass an order in terms of the order of this Court dated 15.3.1991 in CWJC No. 6880 of 1989 for reinstating Ram Punit Rai, the respondent no.6 of this case, back in service, he was required to give an opportunity of hearing to the petitioner, who had already been appointed in the year 1985. The order passed by the Collector of the district on 21.4.1997 (Annexure-6) cancelling the appointment of the petitioner on the ground that the post had never became vacant because Ram Punit Rai was never removed from service, was 10 detrimental to the interest of the petitioner of this case and, therefore, such an order could have been passed only after giving notice and/or affording opportunity of hearing to the petitioner. Admittedly, that was not done and, therefore, the order dated 21.4.1997 as contained in Annexure-6 and its consequential order dated 27.4.1997 issued by the officer in-charge of Bela police station has to be held as bad. This Court, however, cannot ignore the aspect that the petitioner has remained out of service for a period over fourteen years and, therefore, his reinstatement in service at a point of time when the respondent no.6 is continuing on the said post, would be illogical because two persons cannot be allowed to continue on one post of Chaukidar. In that view of the matter, this Court would quash Annexure 6 & 7 and remit the matter back to the Collector of the Sitamarhi district who would now pass his fresh order both with regard to the appointment and continuation of the petitioner vis-à-vis respondent no.6 and if the Collector of the 11 district would find that the respondent no.6 was not entitled to continue in service and that the appointment of the petitioner of this case was made by the competent authority in a justified manner, he would reinstate the petitioner back in service but, if it is found by him that the appointment of the petitioner was a mere stop gap arrangement, he would pass an order to this effect. The Collector of the district, however, must address to the specific assertions of the petitioner of this case before this Court that the respondent no.6 was never appointed as Chaukidar and in fact it was his father who was the Chaukidar and was facing departmental proceeding for misconduct and that the respondent no.6 had misled both this Court as also the authority with regard to his appointment on the post of Chaukidar. Such a final decision with regard to the petitioner must be taken within a period of six months from the date of receipt/production of a copy of this order. This Court would also direct the petitioner and the respondent no.6 to personally 12 appear before the Collector of the Sitamarhi district on 4th July, 2011 and the period of six months shall be reckoned from that date. This application is accordingly allowed to the extent indicated above. Rsh (Mihir Kumar Jha, J.)