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Jharkhand High Court · body

2008 DIGILAW 993 (JHR)

Sunil Kumar Verma v. State of Jharkhand

2008-08-25

R.R.PRASAD

body2008
Order This application has been filed on behalf of the petitioner wherein prayer has been made to direct the respondents to pay arrears of wages to the petitioner from April, 1998 till date equal to the salary as that of regular employees after holding that the petitioner has been continuously serving as daily wager on the post of Clerk since 25.12.1982. Further prayer is to direct the respondents to take immediate steps for filling up vacant sanctioned post by a regular process of selection waiving the age restriction and by giving due weightage to the petitioner of his past service in the light of the Judgment of the Hon'ble Supreme Court rendered in ? case of Secretary, State of Karnataka and Others vs. Uma Devi and Others as reported in [ (2006)4 SCC 1 ][:2006(2) JLJR (SC)282]. 2. The case of the petitioner as has been' made out in the writ application and also rejoinder to the counter affidavit is that the petitioner was engaged as daily wage worker on 25.12.1982 in the State Trading Division, Ranchi a unit of Forest and Environment Department, and was working sincerely and honest/y. However, from 1989 under the order of Chief Conservator of Forest-cum-Director, State Trading, Bihar, Ranchi, petitioner and others similarly situated started getting, remuneration at fixed amount of Rs. 604/- per month. Thereafter, the petitioner filed a writ applicaton, vide C.W.J.C No.2059 of 1992 praying therein to regularize the services of the petitioner and the Court directed the competent authority to complete the process of recruitment within four months and if the petitioner applies, his case may be considered alongwith others giving them due weightage of their past satisfactory working experience but the services of the petitioner seem to have been regularized by the Authority. However, while the petitioner was still under employment on daily wages, Personnel and Administrative Reform Department issued a circular contained in memo no. 5113 dated 20.5.1996 (Annexure-3) directing the authorities to regularize services of the daily wagers who have completed 240 days continuously or have completed 10 years of work against the existing vacancies. Pursuant to that, respondent no. However, while the petitioner was still under employment on daily wages, Personnel and Administrative Reform Department issued a circular contained in memo no. 5113 dated 20.5.1996 (Annexure-3) directing the authorities to regularize services of the daily wagers who have completed 240 days continuously or have completed 10 years of work against the existing vacancies. Pursuant to that, respondent no. 2, Secretary, Department of Forest and Environment issued a letter to all concerned officials for preparing panel of those persons fulfilling the criteria stipulated under Annexure-3 but the respondents when did not do anything, the petitioner filed a writ application before this Court, vide C.W.J.C. No. 534 of 1998(R) praying therein to direct the respondent to regularize the services of the petitioner. However, this Court vide order dated 11.12.1998 disposed of the writ application by holding that direction had already been given in regularization of the services in the earlier writ application and, therefore, there is no need of giving any further direction. However; it was observed that it will be open for the petitioner to move for initiation of contempt proceeding if the petitioner thinks that order of this Court was not complied with. Pursuant to that, a contempt petition, vide M.J.C. No. 58 of 1999(R) was filed but this Court vide order dated 19.2.2000 observed that no case is made out and hence, the contempt petition was dismissed. Thereafter the petitioner ventilated his grievance before the Secretary, Department of Forest and Environment, respondent no. 2 regarding non-payment of arrears of wages and thereupon respondent no. 7 made payment of Rs. 10,175/to the petitioner for the period from October, 1997 to March, 1998 but no payment was made for the period from 14.2.1997 to 13.6.1997 and from April, 1998 till date. Therefore the petitioner again represented the matter before the respondent no. 2 for payment of arrears and for the regularization of the services. Upon it respondent no. 2 called for a report from the respondent no. 3, who instead of submitting report regarding arrears of wages due to the petitioner, submitted a list of daily wage workers, vide his letter no. 2573 dated 24.6.2002 (Annexure-9) showing that the petitioner has been working since 25.12.1982 but still no decision was taken regarding regularization of the services of the petitioner and on payment of the wages and this, according to the petitioner, has necessitated filing of this writ application. 3. 2573 dated 24.6.2002 (Annexure-9) showing that the petitioner has been working since 25.12.1982 but still no decision was taken regarding regularization of the services of the petitioner and on payment of the wages and this, according to the petitioner, has necessitated filing of this writ application. 3. Stands of the respondents as has been disclosed in the counter affidavit are that engagement of the petitioner at Ranchi State Trading Division was purely on casual basis. In other words, as and when required basis subject to availability of the work under logging operation and when the operation of the Trading Division got ceased, pursuant to decision of the Hon'ble Supreme Court in a case of T.N. Godavarman Trirumaulkpad vs. Union of India and Others reported in ( AIR 1997 SC 1228 ) directing the authorities to stop all sorts of green felling operation unless it is cleared by the Ministry of Forest and Environment, Government of India, petitioner and others were disengaged and this petitioner was disengaged from April, 1998 and as such, the petitioner does not have any right to hold the post as the petitioner before being engaged as daily wageworker had never participated in any process of the appointment and thus, the petitioner is neither entitled to wages for the period from 15.2.1997 to 23.6.1997 as he was not on duty and question of making payment from 1.4.1998 onward never arise as he had been disengaged with effect from 1.4.1998. 4. Learned counsel appearing for the petitioner submits that though, as per the respondents, the petitioner had been disengaged with effect from 1 .4.1998 but no such order had ever been communicated to the petitioner whereas under order as contained in memo no. 1324 dated 14.11.1986 (Annexure-12) the authority was not supposed to remove daily wage worker under oral order and without giving opportunity to daily wage worker of hearing in the matter of his removal and as such, the petitioner can never be considered to have been disengaged with effect from 1.4.1998. 5. Learned counsel further submits that, in fact, petitioner. 1324 dated 14.11.1986 (Annexure-12) the authority was not supposed to remove daily wage worker under oral order and without giving opportunity to daily wage worker of hearing in the matter of his removal and as such, the petitioner can never be considered to have been disengaged with effect from 1.4.1998. 5. Learned counsel further submits that, in fact, petitioner. has never been removed which would be evident from Annexure-9, a letter written by Chief Conservator of Forest annexing therewith lists of daily wage workers including the petitioner showing that the petitioner has still been working since 25.12.1982 and this fact further gets strengthened from Annexure-21, a letter written by Regional Chief Conservator of Forest, Ranchi to Chief Conservator of Forest containing list of daily wage workers who were working well before 1.8.1985 and the petitioner's name does find in the list and, therefore, stand of the State that the petitioner had never been working in the Department and was disengaged in the year 1998 gets falsified and therefore, petitioner is entitled to back wages which have not been paid to him. 6. Learned counsel further submits that Secretary, Departml1nt of Forest and Environment has taken a decision that daily wage worker appointed prior. to 1.8.1985 are entitled for regular appointment against the sanctioned vacant Class IV post in the Department of the Government in the light of the Government resolution no. 5940 dated 18.6.1993 which is evident from his letter no. 2049 dated 20.4.2007 (Annexure-30) and, therefore in the light and also in view of the decision rendered in a case of Secretary, State of Karnataka and others vs. Uma Devi and Others as reported in [ (2006)4 SCC 1 ] [: 2006(2) JLJR (SC)282], the respondents be directed to regularize the services of the petitioner. 7. Having heard learned counsel for the parties it does appear that claim of the petitioner is that he is still under employment as daily wage worker, whereas stand of the respondent is that petitioner had already been disengaged with effect from 1.4.1998. 7. Having heard learned counsel for the parties it does appear that claim of the petitioner is that he is still under employment as daily wage worker, whereas stand of the respondent is that petitioner had already been disengaged with effect from 1.4.1998. In this regard it has been stated in the counter affidavit that when the petitioner in the light of the order of the Hon'ble Supreme Court was disengaged, he approached the then Conservator of Forest and made request for his engagement but when his request was not acceded to, the petitioner became violent and misbehaved with the then Conservator of Forest and for that first information report was lodged though the petitioner, as per statement made by him, has been acquitted from the case. Under this situation, it is beyond any comprehension that the petitioner would have been allowed to work even after that occurrence. Moreover, statement made in paragraph 15 in the reply to the counter affidavit filed on 23.7.1008 would go to show that the petitioner did approach Forest Divisional Officer, State Trading Division, Ranchi in the year 1998, he approached for giving work to him. This statement itself indicates that he has been disengaged from the work, still claim is being made that the petitioner is on the roll of daily wage worker on the promise that no letter of disengagement has been communicated to him though the authority under order as contained in memo no. 1324 dated 14.11.1986 (Annexure-12) was required to disengage daily wage worker under written letter. No doubt such letter does exist but the same does not have any statutory force and as such, the petitioner, who does not have any right over the post, cannot claim any benefit under this letter. 8. Further, learned counsel in order to establish the case of the petitioner of being still on the roll of daily wage worker has referred to Annexures-9 and 21 but it never go to show that the petitioner is still on the roll of daily wage worker as subject matter of those letters would disclose that it were related to the employment of daily wage worker including the petitioner who got disengaged automatically. Under these circumstances, the plea of the petitioner that petitioner is still under the roll of daily wage worker is not tenable and is fit to be rejected. 9. Under these circumstances, the plea of the petitioner that petitioner is still under the roll of daily wage worker is not tenable and is fit to be rejected. 9. Coming to the other submission relating to regularization of the services of the petitioner is concerned, the petitioner also does not seem to be entitled to. It has already been noticed that earlier the petitioner had moved before this Court, vide C.WJ.C No. 2059 of 1992 which was disposed of with a direction to consider the case of the petitioner for regularization but when his service was not regularized, the petitioner seems to have again approached to this Court, vide C.W.J.C. No. 534 of 1998 which on being heard was disposed of with a direction to the petitioner and others to bring a case for contempt if the petitioner considers that the authorities have violated the order of this Court but contempt petition on being filed got dismissed holding that no case of contempt is made out. - Now the petitioner has again moved to this Court for a direction to the respondents to consider the case of the petitioner after giving due weightage of the past service and the relaxation of the age in view of the ratio laid down in a case of Secretary, State of Karnataka and Others vs. Uma Devi and Others (supra) but the Hon'ble Supreme Court in the aforesaid case has never laid down the ratio that person working since long is entitled for regularization after giving him due weightage of the past service and benefit of relaxation of the age, rather it seems to be contrary to the proposition as stated above. It be noted that when the petitioner (Uma Devi) had approached to the Karnataka High Court challenging the order of the Government directing cancellation of appointment of all casual workers/daily wage workers, learned Single Judge of the High Court had disposed of the writ application directing employer to consider the case of the claimants for absorption and regularization in accordance with the observation made by the Hon'ble Supreme Court in similar cases. However the said order on being challenged before the Division Bench was set aside and when the matter came before the Hon'ble Supreme Court, argument was advanced that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution of India. However, this argument was negated in the terms quoted hereunder:- "The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post of Government service or in the service of its instrumentalities can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution in the name of individualizing justice, It is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part-III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part-III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution." 10. Having said so their Lordships held that the courts are not expected to issue directions for making such persons permanent working in service, hence that part of the direction of the. High Court directing the Government to consider their cases for regularization was set aside. However their Lordships in exercise of power as enshrined under Article 142 of the Constitution of India directed the State to take immediate stops for filling up the posts by regular process of selection if the posts are sanctioned and if such process of regular recruitment is undertaken the respondents will be allowed to compete waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for working in the department for a significant period of time and this direction was given in order to do complete justice to the parties. Since such direction was given in exercise of power as enshrined in Article 142 of the Constitution of India such direction would remain confined to the case in which order was passed. Thus, I do not find any merit in this application. Hence, it is dismissed.