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CASE NO.: Appeal (civil)  2234 of 2006

PETITIONER: PURUSHOTTAM KUMAR JHA

RESPONDENT: STATE OF JHARKHAND & ORS

DATE OF JUDGMENT: 24/04/2006

BENCH: RUMA PAL & C.K. THAKKER

JUDGMENT: JUDGMENT

ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 4800 OF 2004

C.K. THAKKER, J.

Leave granted. The present appeal arises out of judgment and  order dated July 14, 2003 passed by a Single Judge of  High Court of Patna, in Civil Writ Jurisdiction Case No.  711 of 2003 dismissing the petition filed by the  petitioner-appellant and confirmed by the Division  Bench of the said High Court on December 2, 2003 in  Letters Patent Appeal No. 488 of 2003.  To appreciate the controversy raised in the present  appeal, few relevant facts may be stated: The appellant was appointed as Field Clerk in the  pay scale of Rs.1200-1800 on June 10, 1996 on  compassionate ground following the death of his father  on February 19, 1990 while working in the Co-operative  Department as Co-operative Extension Officer at  Lakhaun, Madhubani. The appellant joined on the same  day in the office of the Assistant Registrar, Co-operative  Societies, Benipatti, Madhubani, Bihar. By an order  dated December 30, 1996, the appellant was transferred  in the Office of the Registrar, Co-operative Societies,  Patna, Bihar and deputed for monitoring legal work. By  another order dated April 4, 1997, the appellant was  posted in the office of the Registrar, Co-operative  Societies, Patna, Bihar for legal work.   It was, however, the case of the appellant that he  was treated as Legal Assistant and was allowed to work  in the capacity of Legal Assistant.  In an Identity Card  issued by the Bihar Government, the appellant was  described as ’Legal Assistant’ since the appellant was  practising Advocate in the High Court of Patna before  joining the service.  An order was issued on September  14, 1998 by the Secretary to Government, Department of  Co-operation by which the appellant, Legal Assistant,  Office of the Registrar, Co-operative Societies was  authorized by the Government to obtain information  from the Office of the Advocate General, High Court of  Patna relating to Co-operative Department about  pending cases in the High Court.  A Committee headed  by the Additional Secretary, Department of Co-operation  recommended the name of the appellant as departmental  lawyer/Law Officer to get information as to pending  cases in the High Court of Patna and to suggest to the  Government to curb misuse of public fund.

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By the Bihar Reorganization Act, 2000 (hereinafter  referred to as ’the Act’), the erstwhile State of Bihar was  bifurcated into two States; (1) State of Bihar; and (2)  State of Jharkhand.  By an order dated November 14,  2000, the appellant was provisionally transferred to the  State of Jharkhand in the Office of the Registrar, Co- operative Societies, Ranchi, Jharkhand with effect from  November 15, 2000. It was the case of the appellant that he was illegally  described as Clerk, though all throughout he had  worked as Law Officer and Legal Assistant from the date  of joining. The appellant, in the circumstances, sent  several letters and representations to the respondents,  requesting him to designate him as Law Assistant. He  also stated that after the Home Department of the  Government of Bihar had issued identity card describing  him as Legal Assistant, it was not open to the  respondents to treat the appellant as Clerk. The  appellant, therefore, made an application to reconsider  his case and to re-transfer him to the State of Bihar, but  no action was taken by the respondents on that  application. The appellant, in the circumstances, was  constrained to approach the High Court by filing a Writ  Petition. The learned Single Judge issued certain  directions which were also not complied with. When the  appellant went to report in Jharkhand on February 15,  2001, he was not allowed to join. Again, he approached  the Court by filing a Writ Petition and only on June 7,  2001, his joining report was accepted and he was asked  to work. Since the appellant was given clerical work, he  represented that all throughout he had worked as Law  Officer and he should not be compelled to do clerical  work but nobody paid any heed to the prayer.  Even  clerical work was withdrawn from him on October 13,  2001. The appellant was suspended by an order dated  June 10, 2002. Departmental inquiry was instituted  against him.  No opportunity was afforded to the  appellant to defend himself in the departmental  proceedings and finally he was informed on January 6,  2003 that he was guilty and an order of compulsory  retirement from service was passed. In the order, it was  stated that except suspension allowance, the appellant  would not be entitled to anything.  Being aggrieved by the order of compulsory  retirement, the appellant approached the High Court by  filing a writ petition. The learned Single Judge, after  perusing the affidavits and hearing the parties, held that  departmental proceedings were conducted in accordance  with law, inquiry report was submitted by the Inquiry  Officer recording that the charges leveled against the  appellant were established. The learned Single Judge,  therefore, dismissed the petition holding that the  impugned action deserved no interference. According to  the learned Single Judge, the conduct of the appellant,  right from the date of his appointment was not proper. It  was also observed that the appellant was practising in  the High Court of Patna and he wanted to continue in  the said State in the capacity of Legal Assistant although  his appointment was as Clerk on compassionate ground.  It was on that count that he refused to discharge his  duties as Clerk and hence the action was taken against  him and there was no justification to interfere with the  order of compulsory retirement. Accordingly, the petition  was dismissed. Against the said order passed by the learned Single

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Judge, the appellant preferred an intra-court appeal. The  Division Bench also considered the contentions raised by  the appellant and observed that the appellant was  appointed as Clerk on compassionate ground by the  Divisional Joint Registrar, Co-operative Societies,  Darbhanga, Bihar. Due to bifurcation of States, he was  provisionally allotted to Jharkhand State and was  transferred in the office of the Registrar, Co-operative  Societies, Ranchi. The Bench held that the action taken  by the State of Jharkhand was in consonance with law  and the said State was competent to take such action. It  was also observed by the Bench that the impugned order  of compulsory retirement was in consonance with the  Bihar Service Code and the appellant could not make  grievance against the said action. The contention that  the disciplinary proceedings had been initiated against  the appellant with mala fide intention and oblique motive  and were, therefore, malicious and biased was also  negatived by the Division Bench. It was observed by the  Division Bench that the appellant was appointed as a  Clerk and he was asked to perform clerical work.  But it  was the appellant who refused to do clerical work and  that is how the said work was entrusted to one Smt.  Hiramati Kumari and it was not true that the  respondents had withdrawn the work though he was  ready and willing to perform clerical work. Regarding  mala fide, the Court stated that no specific allegations  had been leveled by the appellant in the writ petition  against named officers nor it was stated as to how they  were against the appellant. They were also not made  parties and no opportunity to the other side was afforded  to controvert those allegations. Accordingly, the Letters  Patent Appeal was dismissed confirming the order  passed by the learned Single Judge. Against the order passed by the Division Bench of  the High Court, the appellant approached this Court by  filing Special Leave Petition on February 20, 2004. Notice  was issued on March 20, 2004 by this Court. On  September 20, 2004, the following order was passed by  this Court:         "The petitioner and the counsel  appearing on behalf of the respondent will  consider whether the petitioner may be  allowed to rejoin the service with the  respondent No.1 as a Clerk subject to the  petitioner’s (i) withdrawing all allegations  made by him in correspondence, pleadings or  otherwise against the officers of the  respondent No.1, (ii) undertaking to the  respondent No.1 to discharge functions as a  Clerk without insisting on being given work of  looking after legal matters and (iii) without the  petitioner being entitled to any pay for the  period between the date of compulsory  retirement and the date of his rejoining and  treating such period as leave without pay.

       The matter is adjourned to 25th October,  2004. The decision of the respondent No.1 will  be communicated to this Court four weeks  hence when the matter will be placed on  record. It is being made clear that if the  proposals are not acceptable, the matter will  be heard and disposed of on merits."

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A similar order was passed again on October 25,  2004. In an order dated February 4, 2005, this Court  noted; "The petitioner has failed to file any undertaking  as required by this Court. Therefore, the earlier order  passed by this Court is recalled." The matter was  thereafter placed for final hearing. We have heard Mr. Purushottam Kumar Jha,  appellant - party in person and learned counsel  appearing for the respondents. The appellant contended  that the High Court had committed an error of law as  well as jurisdiction in holding that he was appointed as  Clerk. The appellant, from the first day, had worked as  Law Officer/Legal Assistant and it was, therefore, not  open to the respondents to treat him as Clerk directing  him to do clerical work. The said action was clearly  illegal and the High Court ought to have directed the  authorities to treat the appellant as Legal Assistant.  He  also submitted that the appellant ought not to have been  transferred to the State of Jharkhand.  Since no final  decision, as required by Section 72 of the Act had been  taken, the action was bad as respondent No. 5 had no  administrative control over the appellant. His application  for re-transfer to the State of Bihar had not been  considered. The omission on the part of the respondents  was illegal and unlawful. According to the appellant,  since he was appointed by the State of Bihar, the State  of Jharkhand was not competent to take action against  him and all orders passed including the order of  compulsory retirement, were without any authority,  power and jurisdiction and were liable to be set aside.  According to the appellant, he was not allowed to join  though he was ready. He was illegally deprived of even  clerical work which action was not at all justified. He  was placed under suspension. All these actions had been  taken mala-fide and with oblique motive to punish the  appellant. The High Court ought to have appreciated all  these facts and granted relief in his favour. According to  the appellant, no order of compulsory retirement could  have passed against him as no opportunity had been  given to him. He had not received notice nor he could  defend himself and the action was violative of principles  of natural justice and fair play and the same deserves to  be set aside. The learned counsel for the respondents, on the  other hand, supported the order passed by the  respondents and submitted that the action was in  consonance with law. After following proper procedure,  the appellant was compulsorily retired by way of  punishment. He challenged the said order and the  learned Single Judge as well as Division Bench of the  High Court held the action legal and valid and no relief  was granted to him. No interference is called for and the  appeal may be dismissed. Having heard the appellant-party in person and the  learned counsel for the respondents, in our opinion, it  cannot be said that by dismissing the Writ Petition as  also Letters Patent Appeal, the High Court has  committed any error or law or of jurisdiction which  requires interference by this Court. On the basis of  documentary evidence, the High Court recorded a  finding that the appellant was appointed as a Clerk on  compassionate ground. The appellant was never  appointed as Legal Assistant/Law Officer. Since the  appellant was a Clerk, he was required to do clerical  work. In our opinion, the High Court was right in holding

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that when the appointment of the appellant was as  Clerk, he could be asked to discharge duties in clerical  capacity. So far as the allocation to the State of Jharkhand is  concerned, the Division Bench, in our opinion, rightly  referred to. Sections 72 and 74 of the Act, which are  relevant and material.  They read thus:

72. Provisions relating to services in Bihar  and Jharkhand:

(1) Every person  who  immediately  before  the   appointed  day  is  serving  in connection  with  the affairs of the existing State of Bihar shall,   on and  from that day provisionally continue to  serve in connection  with the affairs of the  State of Bihar unless he is required, by general  or special  order  of  the Central Government to  serve  provisionally  in connection with the  affairs of the State of Jharkhand:    Provided  that  no direction shall be issued  under this section  after the expiry of a period  of one year from the appointed day.    (2)  As soon as may be after the appointed day,  the Central Government shall, by general or  special order, determine the successor State  to   which  every  person referred to in sub-section  (1) shall  be  finally  allotted  for  service  and   the  date with effect  from  which  such  allotment shall take effect or be deemed to have  taken effect.    (3)  Every  person  who is finally allotted under   the  provisions  of sub-section  (2)  to  a  successor State shall, if he  is  not  already  serving  therein be made available for serving  in the successor  State  from such date as may  be agreed upon between the Governments  concerned  or  in default of such agreement, as  may be determined by the  Central  Government.   74.   Provisions as to continuance of officers  in same post:

Every person  who,  immediately  before  the  appointed  day  is  holding  or  discharging  the   duties of any post or office in connection with   the  affairs  of  the existing State of Bihar in  any area which on that  day  falls  within  any  of the successor States shall continue to hold   the  same  post or office in that successor  State, and shall be deemed,  on  and  from that  day, to have been duly appointed to the post or   office by  the  Government  of, or any other  appropriate authority  in,  that  successor   State:   Provided  that nothing in this  section   shall  be deemed  to  prevent a competent  authority, on and from  the  appointed day,   from passing in relation to such person any  order affecting the continuance in such post or  office.

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 On the basis of the above two provisions, the  Division Bench held that the action of the respondents in  transferring the appellant to the State of Jharkhand as  Clerk (Lipik) could not be held illegal, unlawful or  otherwise improper. The appellant was serving in and  posted within the territory forming part of State of  Jharkhand as per the order passed by the Central  Government provisionally. The State of Jharkhand,  therefore, was competent to initiate proceedings against  the appellant which was done and no fault can be found  in the said action of the State of Jharkhand. We have also gone through the affidavits in reply  filed by the contesting respondents. In the counter  affidavit on behalf of respondent Nos. 2, 7 and 8, it was  stated by the Joint Registrar (Co-operative), Government  of Bihar, Patna that the appellant was initially appointed  as the Field Clerk in the unrevised scale of Rs.1200- 1800 on compassionate ground and he joined as a Clerk  on June 10, 1996 at Benipatti. It was stated that on his  representation, the appellant was transferred in the  Office of Joint Registrar, Co-operative Societies, Patna  and deputed in the office of Registrar, Co-operative  Societies, Patna for discharging ministerial legal work.  According to the deponent, there was no post, either  created or sanctioned, of Law Officer or Legal Assistant  in the Co-operative Department. In the light of the order  of the Chief Secretary, Government of Bihar, a Legal Cell  was constituted in every Department of the Secretariat  and accordingly Co-operative Department had also  constituted a legal cell and time to time employees were  deputed for the purpose of obtaining information  regarding cases of the Department pending in the High  Court. Those employees to whom legal work was allotted  used to do the said work since there was no sanctioned  post of Law Officer/Legal Assistant. It was also stated  that other persons had similarly worked in the said  capacity but none of them ever claimed to be Law  Officer/Legal Assistant. It was then stated that as a result of bifurcation of  State of Bihar, the appellant was provisionally  transferred to the Office of the Registrar, Co-operative  Societies, Ranchi in Jharkhand. The said action was in  accordance with law and in consonance with the  provisions of the Act. A counter affidavit was also filed by the Deputy  Secretary, Co-operative Department, Government of  Jharkhand, Ranchi on behalf of respondent Nos. 4 and 5  contending that the actions taken against the appellant  were legal and lawful. It was asserted that neither in the  State of Bihar nor in the State of Jharkhand there was  sanctioned post of Legal Assistant/Law Officer and the  appellant was appointed as a Clerk and continued to  remain as such. His placement with the State of  Jharkhand was in accordance with law as per the  recommendations of the State Advisory  Committee and  he could not have raised any objection against the said  action. Regarding withdrawal of work from the appellant,  deponent stated that the appellant was assigned clerical  work but he replied that he was not interested to do  clerical work. In view of the said fact, the work assigned  to the appellant was entrusted to Smt. Hiramati Kumari.  It was, therefore, not a case of withdrawal of work from  the appellant as contended by him. It was then stated by  the deponent that the appellant made allegations against

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almost all higher officers of the Department.  He was also  habitual in giving illegal threats as being a practising  advocate in the High Court of Patna before joining the  clerical job on compassionate ground.  He was always  non co-operative. It was, therefore, submitted that the  action taken against the appellant was legal and lawful. A counter was also filed on behalf of respondent  No.9 by the District Co-operative Officer-cum- Conducting Officer, Ranchi, Jharkhand. He stated that  he was appointed as Conducting Officer in the  departmental proceedings initiated against the appellant.  According to him, in the departmental proceedings, the  appellant was given all possible opportunities but the  appellant did not cooperate with the proceedings. He  refused to accept the notice served through Peon of the  Department.  The notice was also published in the daily  newspaper (Prabhat Khabar). The appellant intentionally  and purposely got himself away from participating in  departmental proceedings. On the basis of relevant  documents and examination of record, the proceedings  had been concluded and an order of punishment of  compulsory retirement was passed which could not be  termed illegal or unlawful. On the basis of evidence, we are of the view that it  cannot be said that by taking the action of compulsorily  retiring the appellant from services, the respondents had  committed any illegality. If, considering the material on  record, it was held that the charges leveled against the  appellant as to (i) indiscipline and non-compliance and  disobedience of the orders of higher officials; and (ii)  levelling baseless and uncalled for allegations against  superior officers were proved and an order of compulsory  retirement had been passed against him, to us, the said  action cannot be declared illegal, arbitrary or  objectionable.  The learned Single Judge as well as the Division  Bench had held that the appellant was appointed as  Clerk on compassionate ground and not Law Officer/  Legal Assistant. From the affidavits filed on behalf of  respondents, it is clear that there is no sanctioned post  of Law Officer/Legal Assistant and Clerks use to get  information relating to pending cases of the Department  in the High Court and other persons had also worked in  that capacity. The High Court was, therefore, in our  opinion, justified in holding that the appellant could not  have claimed designation as Law Officer/Legal Assistant.  So far as the State of Jharkhand is concerned, in our  view, the Division Bench was right in holding that under  the Act, his services could be allotted to the State of  Jharkhand and that action was taken at the instance of  Advisory Committee. The said action was not in  contravention of any provision of the Act and  proceedings initiated by the State of Jharkhand could  not, therefore, be objected. As to mala-fide exercise of power, the High Court  held that neither sufficient particulars were placed on  record nor the officers were joined as party respondents  so as to enable them to make the position clear by filing  a counter affidavit. In the absence of specific materials  and in absence of officers, the Court was right in not  upholding the contention that the action was mala-fide. It is well settled that whenever allegations as to  mala fides have been leveled, sufficient particulars and  cogent materials making out prima facie case must be  set out in the pleadings.  Vague allegation or bald

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assertion that the action taken was mala fide and  malicious is not enough.  In absence of material  particulars, the court is not expected to make ’fishing’  inquiry into the matter.  It is equally well-established  and needs no authority that the burden of proving mala  fides is on the person making the allegations and such  burden is ’very heavy’. Malice cannot be inferred or  assumed.  It has to be remembered that such a charge  can easily be ’made than made out’ and hence it is  necessary for courts to examine it with extreme care,  caution and circumspection. It has been rightly  described as ’the last refuge of a losing litigant’. [Vide  Gulam Mustafa v. State of Mahrashtra, (1976) 1 SCC  800; Ajit Kumar Jog v. Indian Oil Corporation, (2005) 7  SCC 764). In the instant case, the allegations are vague,  general and casual.  No particulars, much less sufficient  particulars have been placed on record.  The High Court  considered the contention in the light of settled legal  position and rejected the argument put forward by the  appellant.  We see no infirmity in the reasoning of the  High Court.  The conclusion arrived at by the High Court  deserves no interference. For the foregoing reasons, in our opinion, the order  dated 6th January, 2003 compulsorily retiring the  appellant cannot be held illegal, unlawful or contrary to  law and neither the Single Judge nor the Division Bench  had committed any error of law in dismissing the  petition and the Letters Patent Appeal of the appellant.  The appeal, therefore, deserves to be dismissed and  it is accordingly dismissed. In the facts and  circumstances of the case, however, there shall be no  order as to costs. Before parting with this matter, we may state that  this Court, taking into account the position of the  appellant, particularly when he was appearing as party  in person, passed orders as to whether he could be  reinstated or taken back in service on his withdrawing  allegations against respondents and on filing an  undertaking that he would work as Clerk without  insisting on being given work of looking after legal  matters and without insisting for salary during the  intervening period. Unfortunately, the matter could not  be settled. We are, therefore, constrained to decide the  case on merits.  We may, however, observe that in view  of the earlier order passed by this Court, it is still open  to the respondents to consider the case of the appellant  favourably keeping in view the family circumstances  which the appellant has narrated before this Court.  Dismissal of this appeal would not come in the way of  respondents in taking such sympathetic view by showing  magnanimity in favour of the appellant if possible. With the pronouncement of this judgment, the  interlocutory application No.2 filed by the appellant does  not survive.