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2013 DAILYLAW 578 (PAT)

Aashish Ranjan v. Arun Kumar Srivastava

2013-05-02

AHSANUDDIN AMANULLAH, R.M.DOSHIT

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ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Feeling aggrieved by the order dated 6th March 2012 made by the learned single Judge in C.W.J.C. No. 2673 of 2012, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. Pursuant to the public advertisement (copy or the date of the advertisement has not been brought on the record), the appellant applied for appointment as a Peon in the District Legal Services Authority, Nalanda, Biharsharif. On 23rd December 2011, he received postal communication to report for duty. The appellant reported for duty on the same day. He joined the duty and submitted the papers. After two days, the Court being closed for Christmas holidays, he proceeded on leave. During the holidays, by order dated 28th December 2011 made by the Chairman, District Legal Services Authority-cum-District and Sessions Judge, the appointment of the appellant was cancelled on the ground that he did not report for duty within seven days’ joining time. The person next to him, Sri Kunal Kumar Singh, the respondent no.6 was offered appointment. The respondent no.6 immediately received the offer and joined the duty on 29th December 2011. 3. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 2673 of 2012. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. 4. Learned advocate Mr. Bindhyachal Singh has appeared for the appellant. He has submitted that the order of appointment dated 13th December 2011 was received by the appellant on 23rd December 2011 and that he reported for duty on the same day. The appellant also had the proof of receipt. Nevertheless, the learned single Judge did not believe the appellant. He has further submitted that on his joining the duty, the concerned Clerk did receive the joining papers and the appellant was allowed to work for two days i.e. on 23rd and 24th December 2011. He has submitted that the facts mentioned in the order dated 28th December 2011 made by the then Chairman, District Legal Services Authority, Nalanda are factually wrong. He has also relied upon the report dated 15th February 2012 made by the present Chairman of the District Legal Services Authority, Nalanda-cum-District and Sessions Judge, Nalanda, Biharsharif. 5. He has submitted that the facts mentioned in the order dated 28th December 2011 made by the then Chairman, District Legal Services Authority, Nalanda are factually wrong. He has also relied upon the report dated 15th February 2012 made by the present Chairman of the District Legal Services Authority, Nalanda-cum-District and Sessions Judge, Nalanda, Biharsharif. 5. The order dated 28th December 2011 made by the then Chairman, District Legal Services Authority mentions that though the appellant had not reported for duty until 28th December 2011, one another appointee Sita Devi had received the letter of appointment and had reported for duty on 17th December 2011. It was, therefore, presumed that the letter of appointment dated 13th December 2011 was received by the appellant within days thereafter and that he had not reported for duty within seven days specified therein. The Chairman, District Legal Services Authority, therefore, proceeded to cancel the appointment of the appellant and offered employment to the next person Sri Kunal Kumar Singh, the respondent no.6 herein. Pursuant to the said offer, the respondent no.6 reported for duty on 29th December 2011. It may be noted here that on 28th December 2011 and 29th December 2011, the offices were closed. The aforesaid order was made by the Chairman, District Legal Services Authority from his residential office. The respondent no.6 was directed to report for duty from the residential office of the Chairman and that the respondent no.6, the resident of Bhojpur, around 150 kms from Nalanda, reported on duty on 29th December 2011 at the residential office of the Chairman. 6. The appellant has now brought on record the report made by the present Chairman, District Legal Services Authority to the Member Secretary, Bihar State Legal Services Authority, Patna. The said report is self-explanatory. It leaves no doubt that the appellant had reported for duty on 23rd December 2011. On 24th December 2011 his papers were placed before the Additional Chief Judicial Magistrate. On 24th December 2011, the Additional Chief Judicial Magistrate-cum-Secretary, District Legal Services Authority had examined the papers for verification. The order dated 28th December 2011 was made by the Chairman, District Legal Services Authority, on a day the Court was closed, from his residential office. On 24th December 2011 his papers were placed before the Additional Chief Judicial Magistrate. On 24th December 2011, the Additional Chief Judicial Magistrate-cum-Secretary, District Legal Services Authority had examined the papers for verification. The order dated 28th December 2011 was made by the Chairman, District Legal Services Authority, on a day the Court was closed, from his residential office. As recorded hereinabove, the said order was purportedly received by the respondent no.6, a resident of Bhojpur some 150 kms away on the same date and he reported for duty on the next date i.e. on 29th December 2011. 7. It is apparent that the Chairman, District Legal Services Authority-cum-District and Sessions Judge, Nalanda deliberately cancelled the appointment of the appellant by distorted recording of facts and made the appointment of respondent no.6 illegally and on extraneous consideration. The order, therefore, deserves to be set aside. 8. Learned counsel Mr. A.B. Ojha has appeared for the respondent no.6. The respondent no.6 has not filed counter affidavit or put forth any defence. Mr. Ojha has submitted that the respondent no.6 has since been serving as Peon continuously in the District Legal Services Authority 9. For the aforesaid reasons, the Appeal is allowed. The impugned order dated 6th March 2012 made by the learned single Judge in C.W.J.C. No. 2673 of 2012 is set aside. C.W.J.C. No. 2673 of 2012 is allowed. The order dated 28th December, 2011 made by the then Chairman, District Legal Services Authority-cum-District and Sessions Judge, Nalanda is set aside. The respondent District Legal Services Authority, Nalanda is directed to reinstate the appellant in service of the District Legal Services Authority as Peon forthwith. The appointment of the respondent no.6 made under order dated 28th December 2011 stands quashed. The service of the respondent no.6 stands terminated. 10. On his reinstatement in service, the appellant will be entitled to restoration of seniority. The period from the date of his joining i.e. 23rd December 2011 till he is reinstated in service will be deemed to be period on duty for all purposes except the salary. The appellant will not be entitled to the wages for the period from 28th December 2011 till the date he is reinstated in service on the principle of “no work no pay”. 11. The appellant will not be entitled to the wages for the period from 28th December 2011 till the date he is reinstated in service on the principle of “no work no pay”. 11. In case the appellant is not reinstated in service by 15th May 2013, the appellant will be entitled to the salary/wages commencing from 16th May 2013. 12. Registry will send copy of this order to the respondent no.5 forthwith.