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IN THE HIGH COURT OF JHARKHAND AT RANCHI
(CIVIL WRIT JURISDICTION)
W.P.(S) No._________/ 2025
IN THE MATTER OF
An application Under Article 226
of the Constitution of India;
AND
Shaikh Abdul Azeez, aged about 71 years, S/o Late Shaikh Abdul,
R/o-, Village-Gomoh P.O+ PS.- Ghuritilaya Dist.- Koderma,
Jharkhand .…..PETITIONER
Versus
1/The State of Jharkhand
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2/ The Secretary cum Commissioner, Commercial Taxation,
Government Of Jharkhand, P.O.& P.S.-Dhurwa, Dist. Ranchi/
Jharkhand.
3/ The Joint Commissioner, Commercial Taxation, Hazaribagh,
P.O.& P.S.- Dist. Hazaribagh /Jharkhand
4/The Deputy Commissioner of Commercial Taxation ,Hazaribagh,
P.O.& P.S.- Dist. Hazaribagh /Jharkhand … RESPONDENTS
To
The Hon’ble Mr. Justice M.S. Ramachandra Rao, The
Chief Justice of the High Court of Jharkhand at
Ranchi and His other companion Judges of the said
Hon’ble Court:
Humble Petition on behalf of
Petitioners named above:
Most Respectfully Sheweth:
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1. That in the instant writ application the petitioners pray for
the following reliefs;
a) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents to absorbed/confirmation of service of the
petitioner as the petitioner has been appointed in accordance
with Law against sanctioned and vacant post;
AND/OR;
b) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents that after absorbing/confirmation of the service
of the petitioner, consider the case of the petitioner for grant
of Time Bound Promotion and pay 1st, 2ndACP and 3rd
MACP with its arrear.
AND/OR;
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c) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents to consider the case of the petitioner for
absorption in light of similar short of litigation and also in
view of the order passed by this Hon'ble Court where the
Enquiry Report dated 11.2.2016 has been set aside in WP(S)
No.4199/2011, hence the respondents ought to have re-
considered the case of the petitioner for
absorption/confirmation of service as the petitioner has
already retired on 30.11.2020 with pension and retiral
benefits.
AND/OR;
d) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
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respondents to confirm the service of the petitioner from the
initial date of appointment;
AND/OR;
e) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of certiorari for quashing of the letter
dated 19.03.2013 by which claim of the petitioner has been
rejected as when petitioner moved earlier before this Hon’ble
Court without assigning the reason as the issue has been set
at rest up to the Hon’ble Supreme court.
AND/OR;
f) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of certiorari for quashing of the enquiry
report dated 11.02.2016 so far it relates to petitioner’s by
which claim of the petitioner has been rejected on the ground
that initially petitioner was not working against the
sanctioned post, when the issue has been set at rest up to
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Hon’ble Apex Court, in spite of that benefit not extended to
petitioner.
AND/OR;
g) Pass such other order(s)/direction(s) as Your Lordships may
deem fit and proper under the facts and circumstances of this
case for doing conscionable justice to the petitioners.
2. That it is stated that the petitioner has not moved before this
Hon’ble Court at any time earlier for the same relief.
3. That the cause of action has arisen within the territorial
jurisdiction of the Hon’ble Jharkhand High Court at Ranchi.
4. That the substantial questions of law which inter alia arises
in the instant writ application for kind consideration before
this Hon’ble Court, are as follows: -
i. Whether the action of the respondent authorities is
illegal, void and without jurisdiction?
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ii. Whether the action for not considering the absorption/
confirmation of service of the petitioner is tenable in
the eye of law?
iii. Whether the respondent authorities are not bound to
consider that similarly situated persons have already
been confirmed w.e.f. their initial date of appointment.
iv. Whether the respondent authority can deny the benefit
of absorption/confirmation of the service of the
petitioner on the ground that if one another granted
absorption/ confirmation w.e.f. initial date, does not
petitioners to get the same benefit ?
v. Whether the respondent authorities are not bound to
consider the inquiry has been done in the year 1999
and the appointment of the petitioner was found to be
legal?
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vi. Whether the respondent authorities are not bound to
consider that the petitioner has been given other
benefits as that of regular employees and he has also
cleared all the departmental examinations like other?
vii. Whether the respondent authorities are not bound to
consider that the petitioner was appointed before the
bifurcation of the State and in the counter part of State
of Bihar, the persons appointed along with this
petitioner, has already been absorbed w.e.f. their
initial date of appointment?
viii. Whether the respondent authorities can act against the
interim order passed in WP(S) No.259/2013 along
with other analogous cases where the Hon'ble Court
has held that the person criteria common trace to of
appointment in the present State of Bihar should not
be discriminated in the matter of confirmation only on
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the ground of historical event of creation of two
successor states?
ix. Whether the respondent authorities are bound to give
reason if differing with the finding of Enquiry Officer
in which the appointment of the petitioner held to be
legal?
x. Whether the action of the respondent authorities is
violative of Articles 14 and 16 of the Constitution of
India?
5. That the petitioner is a citizen of India as such he is entitled
for enforcement of his legal rights.
6. The petitioner was initially appointed as a peon on
01.02.1970. After following the required legal procedure,
and was reappointed as a driver on 22.09.1979.
7. That the petitioner continued the service as a driver till his
retirement i.e., till 31.07.2013.
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8. That the petitioner has received all his retiral benefits,
including pension, gratuity, leave encashment, and provident
fund and also he has received all revisions to his pay scale
throughout his entire service.
9. That it is stated that similarly situated like the petitioner who
were appointed along with the petitioner or persons who
were appointed on account of death of person, on
compassionate ground, their services have been confirmed.
But discriminatory attitude has been adopted against the
petitioner which will be evident from the office order
contained in Memo No.607 dated 26.2.2005.
Photocopy of letter No.607 dated
26.2.2005 is annexed herewith
marked as Annexure-1, forming
part of this petition.
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10.That the petitioner has worked continuously and
satisfactorily more than 41 years upto his retirement as such
he is entitled for grant of promotion under ACP scheme. It is
relevant to mention here that similar sort of matters of same
department came before Hon'ble Patna High Court and went
up to the Hon'ble Supreme Court regarding the appointments
made in between 12.7.1979 to 22.12.1980. Against the order
passed by the Hon'ble Patna High Court, the State of Bihar
moved before the Hon'ble Supreme Court in Civil Appeal
No.1597/07 arising out of SLP (Civil) No.5718 of 2005 and
the Hon'ble Supreme Court vide order dated 6.3.2006 has
directed to confirm the services of those employees who are
before the Hon'ble Supreme Court and grant them promotion
accordingly. The case of the present petitioner rests on
similar footing but in spite of the order passed by the Hon'ble
Supreme Court, the respondent- authorities are sitting tight
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over the matter and not confirming the service of the
petitioner.
Petitioner craves leave of
this Hon'ble Court to
produce the order passed by
Hon'ble Supreme Court.
11.That it is stated that petitioner is entitled to similar relief as
has been granted in the case of Yogendra Prasad in WP(S)
No.5259/2007 dated 01.07.2008. It is further submitted that
this Hon'ble Court in case of similarly situated employee
Surendra Choudhary in WP(S) No.1437 of 2013 vide
judgment dated 13.11.2013 also considered the case of
Yogendra Prasad and directed the respondent to pass a fresh
order regarding confirmation of the said petitioner in service
and on the claim of first and second MACP maintaining
equality with the similarly situated employees. Therefore the
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writ petitioner should be disposed of in line with similar
judgment passed in the case of similarly situated employees.
It is further submitted that vide office order dated 29.09.2010
itself the said Yogendra Prasad has been granted the benefit
of ACP ad his services has been confirmed from the date of
appointment.
Photocopy of certified copy of
order dated 01.07.2008 in WP(S)
No.5259/2007 Office Order dated
29.9.2010 and Downloaded copy
of the order dated 13.11.2013
passed in WP(S) No 1437 of 2013
from official website of Jharkhand
High Court are herewith annexed
marked and Ananexure- as 3,3/1
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and 3/2 respectively to this
application.
12.That it will be evident from Notification No. 2570 dated
30.5.2014 and Notification No.3078 dated 04.07.2014 the
State of Bihar has confirmed the service of employee who
were appointed along with petitioner and State of Jharkhand
in spite of knowing this fact are sitting tight over the matter.
A similarly situated person Yogendra Prasad has also been
given 1st and 2nd ACP on 29.09.2010.
Photocopy of Notification No.2570
dated 30.5.2014 and Notification
04.07.2014 herewith and No.3078
are dated annexed marked
Annexures- 4 and 4/1 to this
petition.
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13.That no heed has been paid to the petitioner as the petitioner
preferred case bearing W.P.(s) No.6327/2012 which was
disposed of in terms of by order dated 31.07.2012 passed in
W.P.(s) No.5924/2003.
Photocopy of order dated passed in
W.P.(s)No.6327/2012&W.P.
(s)No.5924/2003 annexed marked
Annexures-5,5/1 and to this
petition.
14.That all of sudden impugned order dated 19.03.2013 has
been issued and the case of the petitioner has been rejected
for the confirmation in the service stating that the order dated
19.03.2013.
Photocopy of impugned order
dated 19.03.2013 is annexed
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herewith marked as Annexure- 6,
forming part of this petition.
15.That against the impugned order as contained in annexure-6
of the present writ petition dated 19.03.2013 preferred by the
petitioner bearing WP(S) No. 4115/2015 which was allowed
vide order dated 9.9.2015 and the writ petition was disposed
off with a direction to consider the case of the petitioner by a
Committee without considering the impugned order and the
department is to take fresh decision in light of the duly
constituted Committee.
Photocopy of order dated 9.9.2015
passed in WPS No.4115/2015
along with other analogous cases is
annexed herewith marked as
Annexure- 7 forming part of this
writ petition.
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16.That the petitioner was appointed 1.02.2017 and passed all
departmental examination as that of regular employees and
has retired on 31.07.2013 on attaining the age of
superannuation. He has also been granted revision of pay
scale right from 4th, 5th, 6th and 7th. He has also been given
increments and on account of retirement he is getting
pension, received gratuity, Leave Encashment, Group
Insurance, P.F. etc. but only a formal order of absorption is
to be issued so that the petitioner can get the benefit of
ACP/MACP as the similarly situated persons who were
appointed after the petitioner, their services have been
confirmed and granted ACP/MACP.
17.That the claim of the petitioner for confirmation of service
has again been rejected in terms of the decision of the said
Committee dated 11.2.2016 seeing not fit for
regularization/absorption as at the time of appointment, he
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was not appointed against a sanctioned and vacant post,
reservation policy has not been followed and appointed by
the incompetent authority
Photocopy decision/report of the of
Committee dated 11.2.2016 is
annexed herewith marked as
Annexure-8, forming part of this
petition
18.That it will be evident from the letter dated 19.9.2007 that
the meeting held for appointment of 71 Clerk-cum-Bill Clerk
in which it has been stated that sanctioned and vacant post is
there and the petitioner like person can be adjusted towards
the sanctioned and vacant post.
Photocopy of the letter dated
19.9.2007 is annexed herewith
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marked as Annexure-9 to this
petition.
19.That it is stated that the order passed on 7.6.2011 in WPS
No.449/2011 directing that the Committee ought to have
taken decision and the State of Jharkhand made statement
that High level committee which was constituted by the State
of Bihar passed a final decision that the State of Jharkhand
will take a decision and admittedly the State of Bihar took a
decision and regularized and absorbed all similarly situated
persons but the State of Jharkhand's earlier promise to adopt
as that of Bihar, has not adopted rather came out with a
different decision.
Order dated 7.6 2011 is annexed
herewith marked as Annexure-10,
forming part of this application.
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20.That similarly the matter came up before this Hon'ble Court
by which the impugned order dated 11.2.2016 has already
been quashed which will be evident from order dated
25.8.2017 passed in WPS No.2678/2017.
Photocopy order or dated
25.8.2017 is annexed herewith
marked as Annexure-11, of this
forming part application.
21.That it will be further evident from order dated 10.12.2020
passed in WP(S) No 3025/2019 that the Hon'ble Court has
taken note of enquiry report as per the duly constituted High
level Committee which has already been set aside and
quashed but in spite of that, the respondents are sitting tight
over the matter.
Photocopy 10.12.2020 of order
dated is annexed herewith marked
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as Annexure- 12, forming part of
this petition.
22.That it is stated that the order dated 28.2.2017 passed in
WP(S) No.5964/2008 is same and similar to the case of the
petitioner who has already retired and getting all the retiral
benefits. Against the above order an appeal has been
preferred by the State vide LPA No.439/2018 which was
disposed of on 14.1.2020 as the writ petitioners of the said
case has been treated as confirmed in the service, therefore,
the petitioner should be treated as same as the State has lost
the case from Hon'ble Apex Court also in Spl. Leave Appeal
No. 12161/2020 dated 5.1.2021.
Photocopies of the order dated
28.2.2017, 14.1.2020 and 5.1.2021
are annexed herewith marked as
Annexures-13, 13/1 and 13/2 series
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forming parts of this writ
application.
23. That the similar issue has came up before the Hon'ble Court
in W.P.(S) No.3025/2019 which was disposed off on
10.12.2020 and also affirmed up to Hon’ble Division bench
in L.P.A. No.121/2021 on 03.02.2022 and confirmed by
Hon’ble Apex Court in Special Leave to Appeal
No.1575/2022 disposed on 16.09.2022.
Annexure
24.That the similar issue has came up before the Hon'ble Court
in W.P.(S) No.1040/2021 which was disposed off on
31.07.2023 and also affirmed up to Hon’ble Division bench
in L.P.A. No.19/2024 on 02.04.2024 and cost of 1lakh has
been imposed.
Annexure
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25.That the similar issue has been decided by Hon’ble Division
bench in L.P.A. No.19/2024 on 02.04.2024 and cost of 1lakh
has been imposed.
26.
27.That recently the petitioner made representation for
consideration of his case for confirmation of the service and
to consider for granting ACP/MACP.
28.That it is further submitted that the action of the respondent
authorities is violative of Articles 14 and 16 of the
Constitution of India.
29.That the petitioner has got no other alternative and
efficacious remedy for redressal of their grievance but to
move this Hon’ble Court.
30.That it is stated that the petitioner is moving first time before
this Hon’ble Court for the same relief.
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31.That other and further grounds shall be urged at the time of
hearing of this writ application.
32.That this application is made bonafide and in the interest of
justice.
It is, therefore, prayed that Your Lordships may
graciously be pleased to admit this writ
application, issue rule ‘NISI’ calling upon the
respondents to show cause as to why this
application be not allowed and after hearing the
parties be further pleased to grant following
reliefs :-
h) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents to absorb/confirmed the service of the petitioner
as the petitioner has been appointed in accordance with aw
against sanctioned and vacant post;
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AND/OR;
i) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents that after absorbing confirm the service of the
petitioner, consider the case of the Time Bound Promotion
petitioner for grant of Time bond promotion and
1st&2ndACP /3rd MACP with its arrear
AND/OR;
j) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents to consider the case of the petitioner for
absorption in light of similar short of litigation and also in
view of the orderpassed by this Hon'ble Court where the
Enquiry Report dated 11.2.2016 has been set aside in WP(S)
No.4199/2011, hence the respondents ought to have re-
considered the case of the petitioner for absorption as the
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petitioner has already retired on 30.11.2020 with pension and
retiral benefits
AND/OR;
k) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of mandamus commanding upon the
respondents to confirm the service of the petitioner from the
initial date of appointment;
AND/OR;
l) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of certiorari for quashing of the letter
dated 19.03.2013 by which claim of the petitioner has been
rejected when petitioner moved earlier without assigning the
reason and enquiry for the first time as the issue has been set
at rest up to the Hon’ble supreme court.
AND/OR;
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m) For issuance of a writ(s)/order (s)/direction (s) or particularly
a writ in the nature of certiorari for quashing of the enquiry
report dated 11.02.2016 so far relates to petitioner’s by
which claim of the petitioner has been rejected on the ground
that initially petitioner was not working against the
sanctioned post.
AND/OR;
Pass such other order(s)/direction(s) as Your Lordships may
deem fit and proper under the facts and circumstances of this
case for doing conscionable justice to the petitioners.
AND
For this, the petitioner shall ever pray.
AFFIDAVIT
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I, Ravi Shankar, aged about -49 years,S/o- Sri Binoy
Kumar,R/o-Indrapuri Road No. 9,P.O-Hehal, P.S- Sukhdeo Nagar,
Dist. -Ranchi, Jharkhand, do hereby solemnly affirm and state as
follows:-
1/ That I am petitioner No.2 in this case and such I am
well acquainted with the facts and circumstances of this case and I
have been duly authorised by other petitioners to swear this affidavit
on their behalf as well.
2/ That the contents of this affidavit and the foregoing
application have been read over and explained to me which I have
fully understood and the same are true to my knowledge information
and belief.
3/ That the statements made in para …………………..
are true to my knowledge, those made in para…..…………….
are true to my information derived from the records of this case;
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4/ That the annexures are photo copies/typed /true copies of
their respective originals.
Verified, Sworn and signed this affidavit at the premises of
this Hon’ble High Court at Ranchi on this the ______ day
of___________,2024 at Ranchi.
