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2009 DIGILAW 548 (JHR)

Birendra Rajak v. State of Jharkhand

2009-04-16

AJIT KUMAR SINHA

body2009
ORDER 16.04.2009. The present writ petition has been preferred for the following reliefs:-i) For issuance of an appropriate writ or a writ of or a writ in the nature of Mandamus commanding upon the Respondents to regularize the service of the petitioner who is working as a Peon in pursuance of Appointment Letter No. 1041 dated 28.07.1983 (Vide Annexure-4 and Annexure-5) issued by Executive Engineer against sanctioned and vacant post (Vide Annexure-5), ii)For issuance of an appropriate writ or a writ of or a writ in the nature of Certiorari for quashing the office order No. 14(Estt.) dated 18.05.2007 (Annexure-8) issued by Superintending Engineer, Road Construction Department, Road Division, Jamshedpur, whereby claim of the petitioner for his regularization, has been rejected on the misleading and baseless grounds, iii) For a direction to the Respondents to regularize the service of the petitioner w.e.f. 01.08.1985 which is the cut-off date for regularization of the service of Daily Wage Employees. 2. Both the writ petitions are being disposed of by a common order since the issue involved is identical. 3.The facts in brief are set out as under:-In W.P.(S) No. 2548 of 2007 the petitioner is working as a Peon pursuant to an appointment letter No. 1041 issued on 28.07.1983. In W.P.(S) No. 4297 of 2007 the petitioner is working as a Road Roller Driver on daily wages since 1982 and his prayer for regularization was rejected vide office order No.14(Estt.) dated 18.05.2007. 4. In both the cases the petitioners have claimed regularization on the basis of a circular dated 18.10.2001 issued by the Executive Engineer, vide which according to the petitioner a decision was taken to regularize the services of those daily wage employees who had regularly discharged the duties for a period of 240 days prior to 1.8.1985. 5. The main contention raised by the counsel for the petitioners is that since they have been working continuously as a daily wage workman they were entitled to regularization of service in view of the aforesaid letter dated 18.10.2001 and also other letters issued from time to time with respect to the policy decision that the daily wage employees who have regularly discharged their duties for a period of 240 days prior to 01.08.1985 will be regularized. 6. 6. The respondents in their counter-affidavit have submitted and have also annexed letter No. 1041 dated 27.7.1983 issued by the Assistant Engineer whereby in the 1st case the petitioner was requested to perform the duty from 1.6.1983 to 1.7.1983. However, the letters cannot be treated as Appointment Letters. It has also been contended that the Assistant Engineer and / or Executive Engineer had no authority to decide the matter and in any case they had not completed 240 days of regular work before the cut off date of 1.8.1985. It has also been submitted on behalf of the respondents that at best as and when the sanctioned posts are created the case of the petitioners will be considered and preference also will be given and even as per the letter the department has to give priority to the daily wage staff who discharged their duties for 240 days prior to 1.8.1985. 7. A second supplementary affidavit has been filed by the respondent in compliance to the directions issued by this court wherein it has been stated that the petitioner never worked continuously for 240 days and has usually worked for a maximum of 26-27 days in a month and at paragraph7 it has been stated as under:- “7.That the proper reply of the query of Hon’ble Court is, petitioner is still working but he never worked more than 27 days in a month. In other words I humbly say and submit that petitioner never worked 240 days continuously in a year. Hence there are break in service.” It has also been admitted at paragraph-10 that the petitioner is still working. Likewise in the second writ petition also a supplementary counter affidavit has been filed wherein it has been admitted that the petitioner was engaged as daily wage worker but his engagement was not against sanctioned vacant post. 8. The respondents have also referred to (2006) 4 SCC page 1 which is the Constitution Bench Judgement in Umadevi Case and (2006) 6 SCC page 430 to submit that the petitioner cannot be regularized in service only on the ground that they have been working for a long period on daily wages. 9. I have considered the rival submission and the pleadings and also the aforesaid judgements referred to. 9. I have considered the rival submission and the pleadings and also the aforesaid judgements referred to. The admitted fact remains that the petitioners have been continuously working since 1982-1983 and in the supplementary affidavit it is admitted that they have been employed for at least 26-27 days every month. Strangely in the calculation part it is stated on oath that they have not completed 240 days in a calendar year. Even assuming that the petitioners are working 26-27 days in a month in 12 months it will go over 300 days of work in a calendar year and thus the affidavit filed is not only erroneous and contradictory but very casual and unfortunate to say the least. If we keep aside the 04 Sundays in a month it will be evident that the petitioners have worked throughout for 26 years. 10. The respondents should have been careful to make such statement which is on the face of it misleading and irresponsible. In the instant case there are distinguishing facts from the case laws cited above, that the petitioners were engaged on daily wage prior to the cut off date of 1.8.1985 as prescribed and even assuming that the statement made on affidavit by the respondents is correct that they have worked for 26-27 days in a month, still then they had completed more than 240 days in a calendar year prior to the cut off date of 01.08.1985 and thus as per their own policy/circular they were entitled to be regularised. 11. Considering the aforesaid facts and circumstance of the case and the fact that the petitioners are working uninterruptedly for the last 26 years the respondents are directed to consider their case for regularization within a period of six months from the date of receipt /production of a copy of this order. 12. These writ petitions are accordingly allowed and the impugned order dated 18.05.2007 is hereby quashed with no order as to cost.