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2013 DIGILAW 812 (JHR)

Kamla Prasad Singh v. State of Jharkhand

2013-07-08

SHREE CHANDRASHEKHAR

body2013
ORDER The petitioners have moved this Court seeking following reliefs:- (i) For issuance of an appropriate writ(s)/ order(s)/directions or a writ in the nature of Certiorari for quashing the part of the office order contained in Memo No. 1763 dated 24.09.2012 (Annexure8) by which the approval has been granted for payment of salary in the pay structure of Rs. 44407440 in the grade pay of Rs. 1300/ from 4th of March, 2010 after giving protection of salary with effect from 11.12.2002 considering the fact that the petitioners were given the regular pay scale with effect from 11.12.2002 and therefore in between the period 11.12.2002 to 04.03.2010, the increments over the said pay scale should be added and the same should be released in favour of the petitioners. (ii) For issuance of an appropriate writ(s)/ order(s)/directions or a writ in the nature of mandamus commanding upon the respondents to abide by their own office order contained in Memo No. 2295 dated 11.12.2002 by which the authorities have given the pay scale to the petitioners with a specific direction that all other allowances which is payable by the corporation shall be paid to the employees and therefore the respondent authorities can not deprive the petitioners for the arrears of salary in between the period 11.12.2002 to 04.03.2010 during which the petitioners were only getting the basic scale but other allowances were not added although the services of the petitioners have been regularized with effect from 11.12.2002. (iii) For any other reliefs the petitioners are entitled for. 2. The brief facts of the case are that, the petitioner no. 1 was appointed as Peon on daily wages on 10.01.1978 and other petitioners were also appointed between the period from 1976 to 1987. As the services of the petitioners were not regularised, they had moved this Court by filing C.W.J.C. No. 2035 of 1994(R) seeking regularisation and payment of all the benefits at par with the regular employees. The writ petition was allowed vide order dated 13.08.2002 with a direction to the respondents to regularise the services of the petitioners as expeditiously as possible and within a period of 30 days from the date of receipt of the copy of the order and if the services of the petitioners were not regularised within 30 days then it was directed that immediately they would be paid salary at par with regular employee. It appears that in compliance of the order dated 13.08.2002 of this Court, an office order was issued on 11.12.2002, whereby the petitioners were granted the payscale of Rs. 2550-55-2660-60-3200. Thereafter, by office order dated 04.03.2010, the services of the petitioners were absorbed/regularised as one time measure, on the post on which they had been working and in the scale of pay which was allowed by Office Order 2295 dated 11.12.2002. It is stated that by Office Order dated 16.09.2010, the earlier order passed vide Memo No. 325 dated 04.03.2010 was recalled and therefore, the petitioners approached this Court in W.P.(S) No. 5350 of 2010, which has been allowed by the learned Single Judge of this Court. 3. Against the order of the learned Single Judge, the respondents preferred appeal being L.P.A. No. 278 of 2011 which was dismissed by the Division Bench on 01.05.2012. Thereafter, by order dated 21.07.2012, the order contained in Memo No. 325 dated 04.03.2010 was revived. However, by order dated 24.09.2012, the payscale of the petitioners were fixed with effect from 04.03.2012, instead of 11.12.2002 and therefore, the petitioners have approached this Court again. 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. Mr. Amit Sinha, the learned counsel appearing for the petitioners, has submitted that the specific orders of this Court in different writ proceedings have not been complied with by the respondents and they have issued the impugned order dated 24.09.2012, whereby the benefits which would have accrued to the petitioners with effect from 11.12.2002 have been denied. 6. Mr. Rupesh Singh, the learned counsel appearing for the respondents has contended that order dated 11.12.2002 whereby the petitioners were granted the payscale of Rs. 2550-552660-60-3200 is an order granting payscale to the petitioners and only by the order dated 04.03.2010, the services of the petitioners have been regularised and therefore, the petitioners are not entitled for grant of regular payscale including increments with effect from 11.12.2002, as the benefit of regularisation has not been granted to the petitioners by order dated 04.03.2010. 7. The relevant extracts of order dated 13.08.2002 are as under, “Admittedly the petitioners have been working on daily wages basis continuously since 1972 onwards i.e. for about 25/30 years. It is not a case of the respondents that the petitioners do not have requisite qualification in order to regularize their services. 7. The relevant extracts of order dated 13.08.2002 are as under, “Admittedly the petitioners have been working on daily wages basis continuously since 1972 onwards i.e. for about 25/30 years. It is not a case of the respondents that the petitioners do not have requisite qualification in order to regularize their services. The only contention is that State government has not granted approval and sanction of post for regularization of their services. Having regard to the fact that the petitioners have been working continuously without any break on daily wages for about 25/30 years and without any complaint from the side of the Corporation, the question of approval for regularization of their services or any financial reason cannot and does not arise. The petitioners having worked for a long times, as a matter of right, they are entitled to be regularized in services. The Supreme Court in the case of State of Haryana Vs. Piara Singh S.C. 1992 (2130) and also in the case of Gujarat Agriculture University Vs. Rathod 2001 SC Weekly 351, in similar facts and circumstances of the case held that such daily rated employees are entitled to be regularized in the services. For the aforesaid reasons, this writ application is allowed and the respondents are directed to regularize the services of the petitioners as expeditiously as possible and within a period of 30 days from the date of receipt/production of a copy of this order. If the services of the petitioners are not regularized within 30 days then immediately thereafter they shall be paid salary at par with the regular employees.” 8. A perusal of the order passed by this Court vide order dated 13.08.2002 in W.P.(S) No. 2035 of 1994(R) would clearly indicate that in the event the respondents are not able to regularise the services of the petitioners within 30 days, they were directed to pay the salary at par with the regular employees. In pursuance to the order of this Court dated 13.08.2002, the respondents issued Office Order dated 11.12.2002. The order passed by this Court dated 13.08.2002 is very specific, first to regularise the services of the petitioners and in the event of failure to regularise the services of the petitioners within 30 days, the respondents were directed to grant the payscale at par with the regular employees to the petitioners and thereafter, they were directed to issue the order of regularisation. It is clear that since the order of regularisation could not be issued within 30 days, it has been complied by the respondents by order dated 04.03.2010 and therefore, the contention raised on behalf of the respondents that order dated 04.03.2010 is prospective and therefore, the benefit of increment cannot be given to the petitioners and the benefit of regularisation cannot be extended with effect from 11.12.2002, is not tenable in view of the definite order passed by this Court in earlier proceeding.9.The matter was taken by the petitioners to the Court in W.P.(S) No. 5350 of 2010 and this Court has held as under, “In view of these circumstances, the order passed against the petitioners setting aside the regularisation is held to be illegal and against the decision of this Court in the writ petition passed earlier. Evidently, the impugned order has been passed to circumvent the regularisation granted earlier to the writ petitioner and cannot be allowed to stand. If at all their assertion is accepted that the regularisation was not passed by a competent authority, it was the fault of the respondents themselves and the petitioner cannot be made liable and their right cannot be jeopardized for the fault of the respondents themselves, which is clearly evident from the counter affidavit. In view of what has been stated above, the writ petition is allowed. The order impugned dated 16.09.2010 is quashed.” 10. The respondents approached the Letters Patent Court and the Division Bench of the this Court has held as under:- “We would like to reiterate again that the appellant is a Corporation and is in need of the workmen and is bound by the decision of this Court delivered in the petitioners' writ petition being CWJC No. 2035 of 1994(R) and this decision has not been challenged by the appellants. The appellant has accepted this judgment and started paying the “salary at par with regular employee” to the writ petitioners and, therefore, except taking an absolutely hyper technical stand by the appellants that as the Corporation is in need of the person, taking work of these persons since last more than 30 years will not regularize these persons because of the order of the State Government restricting the creation of the further post inspite of the fact that order of the High Court was passed in a writ petition of the year 1994, however in the year 2002, recognizing the petitions' right of regularization and however with some indulgence of making payment of salary to the employees at par with the regular employees, obviously it may be because of the reason that till all employees are absorbed against the vacancies they may not be put to monetary loss but following the decision of Uma Devi's case as referred above, we are of the considered opinion that it was a fit case for taking steps of regularization instead of fighting the case before the Court to deny the benefit of regularization to the employees who are in service for last more than 30 years at par with the other regular employees.” 11. In view of the above finding recorded by this Court in earlier proceedings, the writ petition is allowed. The impugned order dated 24.09.2012 is quashed.