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2003 DIGILAW 23 (JHR)

Basudeo Kumar Sinha v. State Of Jharkhand

2003-01-06

TAPEN SEN

body2003
ORDER 1. Heard Mrs. M.M. Pal, learned counsel for the petitioner and Mr. Mahesh Kumar Sinha, learned Junior Counsel to the Additional Advocate General. 2. Almost two years ago, i.e. 8.1.2001, this Court granted six weeks time to the State to seek instructions and file necessary, affidavit. The order was passed upon the prayer made on behalf of the State itself which had requested for six weeks time to do the needful so that upon receipt of affidavit the case could be disposed off. Today, after almost two years, when this case has been called out, the learned counsel for the respondents stated that he has yet to receive instructions and on that score alone he has not been able to file affidavit. 3. Taking into consideration the aforementioned laches on the part of the State this Court is not inclined to grant any further opportunity to them and consequently, the right to file Affidavit by the State is hereby closed and the case is taken up on its merits on the basis of pleadings made in the writ petition itself. 4. On 3.1.1986 the petitioner was issued with a formal letter of appointment recognizing his work with effect from 20.10.1986 and therefore the appointment letter was specific to the extent that his appointment was with effect from 20.10.1986. The appointment was on daily wages and against a sanctioned post of a typist. 5. The appointment of 1986 and the status as that of daily wage earner continued inspite of representations after representations for regularization: The respondents appear to have turned a deaf ear to the petitioner and continued with their policy of ad-hocism in respect of the petitioner. Came, the year 2000, and the petitioner was finally constrained to move a writ petition before the then Ranchi Bench of the Patna High Court vide CWJC No. 1890 of 2000(R). A learned single Judge of this Court made a very specific observation to the effect that having regard to the contentions made by the petitioner that he has been working since 1986 on daily wages, it was high time when the respondents should consider the representation of the petitioner and take a decision in accordance with law. 6. A learned single Judge of this Court made a very specific observation to the effect that having regard to the contentions made by the petitioner that he has been working since 1986 on daily wages, it was high time when the respondents should consider the representation of the petitioner and take a decision in accordance with law. 6. Consequently the petitioner was directed to file a fresh representation before the Director (respondent No. 3) within two weeks from the date of passing of the order and, if such a representation was filed within that period, the authority indicated above was directed to give an opportunity of hearing and dispose the same by passing a reasoned order in accordance with law. 7. A reasoned order i.e. the one impugned herein, seems to have been passed on 14.8.2000, but this Court does not consider it that it to be an order in accordance with law. On the contrary, it is an order that takes away the right of the employee. It is indicative of the fact that the management created short breaks in the service of the petitioner so as to deprive him of his right to claim regularization albeit, a clear admission on their part to the effect that he has been in service since 1986. 8. In the instant case we are, therefore, faced with a situation where we notice that the respondents have rejected the claim of the petitioner on three grounds and they are :-- (a) that the representation was not within the time frame as fixed by the High Court; (b) that there were short breaks in service; and (c) that the Director (respondent No. 3) did not have the necessary jurisdiction to pass an order of regularization, 9. None of the grounds indicated in the impugned order can be said to be either fair or proper. Even if there was some delay in filing the representation within the time frame fixed by the High Court, that by itself should not have been a ground to have been indicated in the impugned order as a reason for rejection. The employers are required to be fair when dealing with their employees and therefore to start off passing the impugned order by attempting to highlight this delay as the first ground, in the opinion of this Court, is only an attempt to prejudice the mind of this Court. The employers are required to be fair when dealing with their employees and therefore to start off passing the impugned order by attempting to highlight this delay as the first ground, in the opinion of this Court, is only an attempt to prejudice the mind of this Court. This Court is not at all prejudiced. On the contrary, it deprecates that part of the order. 10. So far as the second part relating to short breaks is concerned, this Court also is not impressed by such reasons inasmuch as short breaks in service cannot take away a right especially when the petitioner has been working since 1986. Moreover, from the impugned order the concerned respondent has not specifically spelt out the period of such breaks. On the contrary, at paragraph 5 and 10, the writ petitioner has clearly indicated that he rendered continuous service for more than fifteen years except one break in the year 1995 and is still designated as a daily rated employee and is being paid Rs. 47.50 per day. Such a short break should not be allowed to destroy the petitioners right to claim regularization. Such a break cannot also totally destroy the entire length of service and it has to be construed in the backdrop of various factors such as the reasons for which the break occurred or the circumstances which led to the break. Considering the fact that the petitioner has been continuing in service except one solitary break in the year 1995, this Court does not see any reason as to why that period should not have been condoned. 11. The third reason is of no consequence in as much as the Director has merely, pointed out that it is outside his jurisdiction to pass any order of regularization. Such a reason coming from such a high officer of the institution is fit to be rejected outright. We are, in the instant case, concerned with the Institution itself under whose banner the Appointment Letter has been issued and it is the institution which has to do the needful in the matter. 12. Such a reason coming from such a high officer of the institution is fit to be rejected outright. We are, in the instant case, concerned with the Institution itself under whose banner the Appointment Letter has been issued and it is the institution which has to do the needful in the matter. 12. That apart, we have also noticed Annexure 5 which is a letter dated 4.11.1995 and which clearly and unequivocally points out that for category III employees, there are 274 posts which have been sanctioned out of which only 102 have been filled up and, as on date, there are still 172 posts lying vacant. 13. Considering the aforementioned facts and also taking into consideration the fact that the petitioner has been working since 1986 with only a short break, this Court considers it expedient in the interests of justice to direct the respondents to forthwith start making payment of salary to the petitioner on the scale of a typist following the principle of equal pay for equal work. This Court also considers it expedient in the interests of justice to direct the respondents to immediately and forthwith re-consider the case of the petitioner in the matter relating to regularization of his service and pass an order within a period of two weeks from the date of receipt of a representation after taking into consideration the observations made above and in accordance with law. 14. With the aforementioned observations and directions, this writ application is disposed off. However, there shall be no order as to costs.