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Jharkhand High Court · body

2009 DIGILAW 234 (JHR)

Suresh Bhandari v. State of Jharkhand

2009-02-13

D.N.PATEL, M.Y.EQBAL

body2009
JUDGMENT M. Y. Eqbal, J. This appeal under Clause 10 of the Letters Patent is directed against the judgment dated 06.2.2007 passed in W.P. (S) No.3836 of 2003 whereby learned Single Judge refused to grant any relief and disposed of the writ petition with a direction to the respondents to follow the guidelines laid down by the Supreme Court in the case of Secretary, State of Karnataka & Others Vs. Umadevi (3) & others [(2006) 4 S.C.C. page 1). 2. The petitioner-appellant filed the aforementioned writ petition seeking issuance of appropriate writ for quashing the order dated 14.8.2002 passed by Secretary, Health and Family Welfare Department, Jharkhand, Ranchi, whereby the appointment of the appellant along with others have been held to be illegal and as a result of which, they have been removed from the services. For better appreciation, the impugned judgment is quoted herein below: - “Heard the parties for final disposal of the writ petition. Mr.. Das, appearing for the petitioners, submitted that four persons jointly filed writ petition being WPS No. 687 of 2003, out of whom the writ petition of Md. Kalimuddin and Md. Kalamuddin was allowed whereas the writ petition of Shambhu Kumar and Md. Mobin was dismissed. Mr. Das submitted that the case of petitioner no. 1-Bhim Chandra De is fully covered by the order dated 9.9.2003 passed in the said WPS No. 687 of 2003, in respect of Md. Kalimuddin and Md. Kalamuddin. Mrs. Lily Sahay, JC to G.P. Ill, did not dispute this position. Accordingly, the order dated 25.6.2003 relieving the petitioner No. 1-Bhim Chandra De from duty, is set aside. With regard to petitioner no. 2-Suresh Bhandari, Mr. Das submitted that he was appointed as daily wager on 1.7.1981 and he was appointed against vacant post of Peon cum Sweeper on 1.10.1982 by the Deputy Superintendent of Indigenous, Medicine, Dumka. Thereafter, he was granted promotion also on 26.10.1992. Therefore, he could not have been relieved on the ground that his appointment was illegal. Mr. Das submitted that petitioner no. 2 should be regularized. Counsel for the State submitted that procedure for appointment was not followed in case of petitioner no.2. Neither the post was advertised, nor the names were called for from the Employment Exchange. She further submitted that when the appointment itself was itself illegal and void, subsequent orders of his promotion etc. were also void. 2 should be regularized. Counsel for the State submitted that procedure for appointment was not followed in case of petitioner no.2. Neither the post was advertised, nor the names were called for from the Employment Exchange. She further submitted that when the appointment itself was itself illegal and void, subsequent orders of his promotion etc. were also void. She further submitted that in view of the Constitution Bench Judgment in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors., reported in (2006) 4 SCC 1 , this Court should not pass order for regularization of petitioner no. 2. When I expressed that in the circumstances no relief can be granted to petitioner no.2, Mr. Das submitted that respondents may be directed to follow the directions given in paragraph 53 of the said judgment of Uma Devi. He referred to an order dated 31.10.2006, passed in LPA No. 21 of 2006 in the case of Abhinesh Kumar Vs. the State of Jharkhand & Ors. Accordingly, respondents are directed to follow the guidelines laid down by the Supreme Court in the case of Uma Devi (supra) and also follow the direction given in paragraph 53 thereof. With these observations and directions, this writ petition is disposed of.” 3. The case of the appellant is that he was initially appointed on daily wage basis as a peon cum night guard in the office of District Indigenous Medical officer, Dumka and he continuously worked as that since 01.7.1981. While the appellant was working on daily wage, the State Government vide letter dated 5.12.1981 issued by Director Health Services, Bihar, Patna directed for regularization of all persons working on daily wage basis and also took decision not to employ henceforth any person on daily wage basis. On the basis of the decision, the service of the appellant was regularized w.e.f. 1.10.1982 vide letter dated 1.10.1982. After completing 10 years of continuous service, the appellant was granted Junior Selection grade w.e.f. 26.10.1992 and have been getting his salary with all increments of pay as a regular employee of the State Government. Thereafter on completion of 10 years, appellant also got time bound promotion. In 2003, without initiating any proceeding, the respondents vide letter dated 25.6.2003 inform the petitioner-appellant that he has services has been terminated by an order dated 14.5.2003. Thereafter on completion of 10 years, appellant also got time bound promotion. In 2003, without initiating any proceeding, the respondents vide letter dated 25.6.2003 inform the petitioner-appellant that he has services has been terminated by an order dated 14.5.2003. Aggrieved by the said decision, immediately the appellant filed the aforesaid writ petition being W.P.S No.3836 of 2003, wherein the respondents filed counter affidavit stating that as the procedure prescribed under the Rules was followed in the process of appointment, his initial appointment is illegal and subsequent promotions are of no consequence. The appellant also filed rejoinder thereto, stating that he was initially appointed on daily wage basis and continued in the muster roll till 13.2.1982 and subsequently his service was regularized by the orders of the Director, Health Services (Deshi Chikitsa), Bihar, Patna. The appellant also took the ground that he was regularized as far back as in the year 1982 and since then he has been getting all consequential benefits, and thereafter after 20 years, his services has been terminated. The learned single Judge, while disposing of the writ petition, directed the respondents to follow the guidelines laid down by the Supreme Court in Uma Devi’s case and also follow the direction given in para 53 of that judgment. 4. For better appreciation para 53 of the judgment in Uma Devi’s case (supra) is reproduced herein below: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 5. Since the matter has been referred to the respondents for considering the case of the appellant in the light of para 53 of the said judgment, we do not intend to interfere with the said direction. However, we are constrained to observe that the authority of the respondents, while considering the case of the appellant, shall take into consideration the fact that the appellant has categorically pleaded in the written statement that on the basis of requisition sent by the respondents to the employment exchange for forwarding the names of eligible candidates, the name of the appellant along with others were sent by employment exchange. Thereafter, the appellant was interviewed and was declared successful and thereafter he was given appointment. The appellant-petitioner was granted junior selection grade in 1992 and after completion of ten years he was given time bound promotion. All these decisions were taken by the authorities of the respondents before creation of State of Jharkhand in 2000. The respondents shall also take into consideration the facts that the appellant continuously worked for more than 20 years. The Secretary, Health Department, shall take decision within a period of six weeks from the date of receipt of a copy of this order along with representation by the appellant. 6. The respondents shall also take into consideration the facts that the appellant continuously worked for more than 20 years. The Secretary, Health Department, shall take decision within a period of six weeks from the date of receipt of a copy of this order along with representation by the appellant. 6. With the aforesaid modification and observation, this appeal stands disposed of.