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2009 DIGILAW 1532 (JHR)

Pankaj Rana v. State of Jharkhand

2009-12-02

D.G.R.PATNAIK

body2009
Order Heard the learned counsel for the parties. 2. The petitioner, in this writ application, has made the following prayers:- (i) For quashing the order dated 10.5.2004 (Annexure-15) passed by the Chief Engineer, Water Resources Department, Government of Jharkhand, Ranchi, whereby the petitioner's application for his appointment/regularization in service against Class-IV vacancies, was rejected. . (ii) For a direction to the Commissioner-cum-Secretary, Water Resources Department, Government of Jharkhand, Ranchi to reinstate/reappoint the petitioner in service in Class-IV post under his administrative control and to regularize his services after reinstatement/reappointment. 3. Challenge to the impugned order (Annexure-15) has been made on the ground that it is contrary to the directions contained in the order of the Supreme Court, passed in S.L.P.(C) No. 1678116820 of 2002 and also in violation of the principles of natural justice and equity. 4. The petitioner was appointed in May, 1981 as a daily wage employee in the office of the Executive Engineer, Waterways Division No.-II, Chakradharpur, which was then under the Waterways Department of the Government of Bihar, Patna. His services were continued to be taken, till May, 1990. His wages were paid directly from the Project Office of the then Waterways Department (now Water Resources Department), under the Executive Engineer, Laghubitrani Division No. 10, Ghatshila. By an administrative arrangement, the charge of Waterways Division No.-II, alongwith the services of the petitioner was taken over by the Chief Engineer, Laghubitrani Division No. 10 and the petitioner's services continued to be engaged in the same capacity till December, 1992. 5. However, the services of the petitioner and similarly placed other daily wage employees was terminated with effect from December, 1992 by the orders of the then Administrator, Subern Rekha Multi Purpose Project, in his capacity of being the Administrative Executive Head of the Executive Engineer, Laghubitrani Division, Ghatshila. 6. Being aggrieved with the order of termination on the ground that it was in violation of the then existing orders of the Government contained in the Resolution No. 5940 dated 18.6.1993, issued by the Department of Administrative and Personnel Reforms, Government of Bihar, Patna and on the further ground that despite recommendations made by the immediate superior in office, the authorities concerned had refused to reinstate the employees in service, five of the co-workers of the petitioner moved this Court, by filing a writ application vide C.V\f.J.C. No. 614 of 1993 (R). While disposing of the writ application, a Division Bench of this Court had directed the concerned authorities of the Respondents to advertise the post as and when they propose to make regular appointment and to consider the cases of the writ petitioners at that stage, if they also apply for the job alongwith others, subject to their eligibility. A further observation was made that the writ petitioners will be entitled to due weightage of their past satisfactory work experience and also relaxation of age bar to the extent of period of service rendered by them under the Subern Rekha Multi Purpose Project. 7. It is informed that several other similarly situated employees had filed separate writ applications. All such matters went up to the Supreme Court vide Special Leave Petition vide S.L.A.(C) No. 18164 of 1999 and analogous cases. The Supreme Court had observed that a Scheme was framed by the State of Bihar on 18.8.1993 to regularize the services of the employees, who were working as daily wage workers on the cut-off date i.e., 1.8.1985 and pursuant to the Scheme, a list of all such employee were prepared on 18.5.1991 indicating therein, that the workers named in the list were working for more than 240 days in a year. The Supreme Court issued directions in the following terms:- "We are of the view that the regularization of the writ petitioners should be done in accordance with the procedure indicated in the Scheme dated 18.8.1993 and it should apply to the persons who satisfy all the conditions mentioned in the Scheme." Further direction was issued to the State of Bihar in the following terms:- "The State of Bihar will take steps to constitute necessary committees and will take expeditious steps to implement the Scheme depending upon the number of vacancies available from time to time." 8. In pursuance to the order of the Supreme Court, a meeting was convened by the Secretary, Water Resources Department, Government of Jharkhand, Ranchi on 12.6.2002. A list of all such daily wage employees, who were in employment on the cut-off date of 1.8.1985 and who were to be regularized as per the directions contained in the Supreme Court order, was prepared. A list of the employees who were working under the Chief Engineer, Icha Galudih Complex, Jamshedpur was also prepared, containing names of seven such employees, which included the name of the petitioner. A list of the employees who were working under the Chief Engineer, Icha Galudih Complex, Jamshedpur was also prepared, containing names of seven such employees, which included the name of the petitioner. Another such meeting of the various Secretaries of the different Departments of the State Government, was held under the Chairmanship of the Chief Secretary, Government of Jharkhand, Ranchi in which a policy decision was taken for the steps to be taken for regularization of the daily wage employees. 9. Pursuant to the policy decision, the Water Resources Department (Irrigation), Government of Jharkhand, Ranchi issued an Advertisement inviting applications from eligible candidates. The petitioner submitted his application in the prescribed format. However, the petitioner did not get any response even after waiting for several months and thereafter, he filed a writ application before this Court vide W.P.(S) No. 1049 of 2004. The writ application was disposed of with a direction to the Respondent Chief Engineer, Water Resources (Irrigation) Department, Ranchi to communicate the decision taken in respect of the petitioner in the matter of his appointment, within four weeks from the date of receipt of a copy of that order. In compliance with the order of the High Court, the Chief Engineer, Water Resources (Irrigation) Department, Ranchi called for a Report from the Executive Engineer, Laghubitrani Division, Ghatshila vide his letter dated 1.8.2004. In response, the Executive Engineer, Laghubitrani Division, Ghatshila submitted a detailed Report addressed to the Chief Engineer, Water Resources Department, vide his letter dated 11.5.2004 (Annexure-14). However, even before receiving the Report of the Executive Engineer, the Chief Engineer, Water Resources Department by his impugned letter dated 10.5.2004 (Annexure-15), rejected the petitioner's application on the ground that the petitioner was not working. under the Chief Engineer, Water Resources Department. 10. Assailing the impugned order, Mr. Indrajit Sinha, learned counsel for the petitioner would raise the following grounds:- (i) That the impugned order is in the teeth of the directions contained in the order of the Supreme Court passed in the S.L.P. Learned counsel explains that the Supreme Court directed the Respondents to finalize Department wise regularisation of the daily wage employees and not project-wise or region-wise. Learned counsel adds that the Chief Engineer, in his impugned order has wrongly interpreted the Supreme Court's order by distinguishing between Department-wise, and project-wise/region-wise regularization. Learned counsel adds that the Chief Engineer, in his impugned order has wrongly interpreted the Supreme Court's order by distinguishing between Department-wise, and project-wise/region-wise regularization. (ii) Admittedly, the petitioner's initial appointment for ten years beginning with May, 1981, was under the administrative control of the Chief Engineer, Water Resources Department. It was only by way of an administrative arrangement that the petitioner's services were taken over by the Laghubitrani Division No. 10, Ghatshila, which was under the administrative control of the Chief Engineer, Icha Galudih Complex, Jamshedpur although both the divisions were under the Secretary, Water Resources Department. (iii) The impugned order of the Chief Engineer refusing to consider the petitioner's application at all, is discriminatory and illegal. (iv) The petitioner since, 1981, had continuously worked for more than 240 days, prior to the cut-off date i.e. 1.8.1985 and had thereafter, continued to work till December, 1992. The Respondents cannot deny this fact. 11. Counter affidavit has been filed on behalf of the Respondents. 12. The Respondents have admitted that the petitioner was engaged and worked as a Watchman on daily wage basis in the Waterways Division, Ghatshila from May, 1981 to 31.8.1981 and his services were taken from time to time with periodical break in service in the same Department till April, 1990. It is also admitted that in between the period, 1.8.1984 to 28.2.1986, the petitioner was in continuous service, suggesting thereby that prior to the cut-off date of 1.8.1985, he had worked continuously for more than 240 days. It is also admitted that pursuant to an administrative arrangement, the work of Murahir reservoir of the Scheme was transferred to Laghubitrani Division No.10, Ghatshila under the Chief Engineer, Icha Galudih Complex, Jamshedpur and upon such transfer, the petitioner's services were transferred to the Laghubitrani Division No. 10, Ghatshila from May, 1990 and his services used to be taken regularly though with periodical break in service, and ultimately, in December, 1992, his services were terminated. It is further submitted that pursuant to the directives contained in the order of the Supreme Court, the process of regularization of the daily wage workers, were undertaken, declaring priority to those employees who had served for at least 240 days continuously prior to 1.8.1985. The process of identification of all such employees, was also undertaken by the various Chief Engineers of the Water Resources Department. The process of identification of all such employees, was also undertaken by the various Chief Engineers of the Water Resources Department. On scrutiny of the petitioner's case, it was found that prior to 1.8.1985, the petitioner had not completed 240 days of service as per Rule. A further stand has been taken that the petitioner did not fulfill criteria for his regularization under the Chief Engineer, Ichu Galudih Complex, Jamshedpur. 13. From the stand taken by the Respondents, it appears that the twin grounds on which the petitioner's application was not considered, are firstly that prior to 1.8.1985, he did not work continuously for 240 days and secondly. that the petitioner did not fulfill the criteria for regularization under the Chief Engineer, Icha Gatudih Complex, Jamshedpur. The second ground apparently indicates that a distinction has been made between the main Department and its subdivisions and the petitioner's claim has been refused on the ground that under the Chief Engineer, Icha Galudih Complex, he did not fulfill the requisite criteria for regularization. 14. As rightly pointed out by the learned counsel for the petitioner, the directions of the Supreme Court was for a department-wise regularization and not for division-wise/region-wise regularization under the Department. The petitioner, having worked initially under the Water Resources Department and later, in the Office of the Chief Engineer, Icha Galudih Complex which office being only a division of the Water Resources Department and since admittedly the list prepared, upon identification of all such daily wage employees contains the name of the petitioner, he was equally entitled for consideration. 15. As regards the first objection that the petitioner did not work continuously for 240 days prior to 1.8.1985, this stand appears to be contrary to the declarations contained in Para 6 of the counter affidavit, wherein, the Respondents have acknowledged that during the various periods and particularly between 1.8.1984 to 28.2.1986, the services of the petitioner 'was continuously engaged. The Respondents cannot, therefore, claim that the petitioner did not work for 240 days continuously prior to 1.8.1985. 16. The Respondents cannot, therefore, claim that the petitioner did not work for 240 days continuously prior to 1.8.1985. 16. In the light of the above facts and circumstances, the impugned order of the Chief Engineer, Water Resources Development Department, appears to have been passed without considering the directions issued by the Supreme Court in proper perspective and without considering the factual aspect that prior to 1.8.1985, the petitioner had admittedly worked continuously for 240 days and, as such, the impugned order of the Chief Engineer is not sustainable and is therefore hereby set aside. 17. However, considering the fact that the petitioner has not been working as a daily wage employee, since after December, 1992, this Court cannot possibly issue any direction to the Respondents to regularize his services. Nevertheless, since the petitioner had worked continuously for a period of 240 days and more prior to 1.8.1985. the concerned authorities of the Respondents shall consider his case, giving him priority as per the directions of the Supreme Court, against future vacancies that may be advertised by the Respondents, who shall also consider sympathetically, the need of the petitioner's age relaxation. 18. With these observations, this writ application stands disposed of. 19. Let a copy of this order be given to the learned counsel for the Respondent-State.