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2014 DIGILAW 1275 (JHR)

Babulog Jha v. State of Jharkhand

2014-12-17

SUJIT NARAYAN PRASAD

body2014
ORDER : The petitioner has approached this Court praying inter alia (i) for quashing the order dated 22.12.2010 whereby and where under the provisional regularization of the petitioner has been cancelled with a direction that the petitioner will remain as daily rated employee; (ii) for quashing the order dated 7.10.2010 by which the pay scale of the petitioner has been reduced from Rs.4000-6000/-to Rs.1200-1800/-and (iii) for issuance of a direction to re-instate the petitioner in service in pursuance of the order dated 28.1.2010 with continuity in service and all consequential benefits. 2. The case of the petitioner, as has been submitted by learned counsel appearing on behalf of the petitioner, is that the petitioner was engaged as Steno-Typist on daily wages basis on 28.4.1989. The appointment of the petitioner was extended till further order vide order as contained in memo no.920 dated 9.6.1990 issued by the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar. The case of the petitioner was recommended by the District Establishment Committee, Deoghar presided over by the Deputy Commissioner, Deoghar for regularization of his service vide resolution no.14 dated 5.5.1995 and recommended for giving the pay scale of Clerk cum Typist having the name of the petitioner appeared under the heading Proposal No.14 at Serial No.10. 3. When the respondent authorities have not acted in terms of the resolution dated 5.5.1995, some of them preferred writ petitions before Patna High Court and in one of the writ petitions being CWJC No.10838/2000 the Hon'ble Patna High Court vide order dated 31.10.2000 directed the respondents for consideration of the representation for regularization of the services and payment of salary in regular scale. 4. In the light of the order passed by the Patna High Court, District Establishment Committee regularized the services of the various daily wage employees appointed after 1.8.1985 like Arjun Kumar Singh, Vijay Kumar Singh, etc. vide order passed in this regard on 8.6.2001. The services of such employees who have not been regularized, they have been given minimum of pay scale. 5. The authorities have passed the order on 21.3.2002 by which an approval has been given to the decision taken by the District Establishment Committee for payment of salary in the scale of Rs4000-6000/-, but the case of the petitioner has not been considered for regularization for payment of minimum of pay scale. 5. The authorities have passed the order on 21.3.2002 by which an approval has been given to the decision taken by the District Establishment Committee for payment of salary in the scale of Rs4000-6000/-, but the case of the petitioner has not been considered for regularization for payment of minimum of pay scale. The petitioner, having no option, has preferred writ petition before this Court vide W.P. (S) No.5176 of 2002 which was disposed of on 15.4.2004 directing the respondents to look into the matter and pass an order in accordance with law on the basis of the observation made therein. In terms of the said order the petitioner has brought about the same before the authorities concerned for doing needful. The respondent authorities in terms of the recommendation of the District Establishment Committee and order passed by this Court in W.P.(S) No.5176 of 2002 has taken a decision on 23.12.2006 by which the proposal of appointment of the petitioner on provisional basis to the post of Assistant cum Typist in the District Board, Deoghar has been taken in anticipation of sanction by the Secretary, Panchayati Raj Directorate, Jharkhand, Ranchi on the basis of the order passed by the Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department and thereafter appropriate decision will be taken for appointment of the petitioner under regular establishment. 6. Learned counsel for the petitioner has further submitted that the other employees working in the District Board of Deoghar, their proposal for regularization has been approved by the Establishment Committee of the District Board, Deoghar. Hence, the persons appointed after the petitioner has been regularized and has been paid salary at par with the Government employees. 7. It has been submitted on behalf of the petitioner that the petitioner has been engaged against vacant sanctioned post, but in spite of repeated representations, the grievance of the petitioner has not been redressed. The establishment committee has taken a decision on 28.1.2010 as contained in order no.1/2010 issued by the Deputy Development Commissioner cum Chief Executive Officer, District Board, Deoghar whereby and where under the petitioner has provisionally been regularized in service subject to condition that the salary will be released after order of allotment to be passed by the Director, Panchayati Raj, Jharkhand. 8. The petitioner, thereafter, has started discharging the duty under the regular establishment in terms of the order dated 28.1.2010. 9. 8. The petitioner, thereafter, has started discharging the duty under the regular establishment in terms of the order dated 28.1.2010. 9. It has been submitted by the petitioner that the respondent no.5 has sent the proposal addressed to the respondent no.4 i.e. the Director, Panchayati Raj to approve the regularization of the petitioner, but no decision has been taken by the respondent no.4 on the pretext that in view of Rule 63 of the Bihar Panchayati Raj Samiti and Zila Parishad Adhiniyam, 1961 and also the circular as contained in letter no.6363 dated 14.1.1981 issued by the Director of Panchayati Raj, Bihar, the Chief Executive Officer of the concerned Zila Parishad has been entrusted with all the powers of Zila Parishad. 10. In view of the aforesaid facts, the respondent no.5 i.e. the Deputy Development Commissioner has issued an order bearing memo no.184 dated 12.1.2010 by which the service of the petitioner has been confirmed in anticipation of the confirmation by the Director, Panchayati Raj, Jharkhand. 11. Thereafter, the petitioner has been treated at par with the Government employee by opening his CPF scheme, etc. and he has also been given election duty. The respondent no.5, thereafter, has issued order on 24.12.2010 by which the provisional regularisation of the petitioner in service has been cancelled, the petitioner has been directed to discharge his duty in the capacity of daily rated employee and to get the payment of the daily wager. It has been stated in the order dated 24.12.2010 that this order has been passed only on account of the fact that the Director, Panchayati Raj has not approved the order of provisional regularization of the petitioner which was the condition precedent of the order dated 28.1.2010. The statement has also been made on behalf of the petitioner that the Deputy Development Commissioner cum Chief Executive Officer is the competent authority to regularize the services of the petitioner and there is no need to seek any approval from the Director, Panchayati Raj. The statement has also been made on behalf of the petitioner that the Deputy Development Commissioner cum Chief Executive Officer is the competent authority to regularize the services of the petitioner and there is no need to seek any approval from the Director, Panchayati Raj. In support of his argument he has relied upon the Bihar Panchayat Samiti and District Board (Service Condition) Rules, 1964 which has been enshrined by virtue of notification no.6918 C.P.D. dated 4th May, 1964 in exercise of power conferred under Section 75 of the Bihar Panchayat Samiti and District Board Act, 1961 (Bihar Act 6, 1962) to be known as Bihar Panchayat Samiti and District Board (Service Condition) Rules, 1964 (hereinafter to be referred as the Rules, 1964). 12. Referring to the Rules, 1964, it has been submitted on behalf of the petitioner that the District Development Officer will be the appointing authority of all ministerial staff, ministerial officers, and the ministerial officers have been quoted in four categories wherein the Typist has been placed at serial no.3 of Rule-7(2) of the Rules, 1964. 13. Thus, it has been pointed out by the learned counsel for the petitioner that in view of the Rules 1964 it is the Deputy Development Commissioner who is the competent authority to appoint a Class-III employee. As such, the reference made by the Deputy Development Commissioner cum Chief Executive Officer, District Board, Deoghar in the order dated 2.2.2010 that the regularization of the petitioner has provisionally been made which will be regularized subject to approval by the Director, Panchayati Raj is absolutely an exercise which has been taken by the respondent no.5 contrary to the Rules, 1964, since he is the competent authority. 14. It has been submitted on behalf of the counsel for the respondent no.5 that there is need of an employee i.e. the reason the petitioner has been retained in service. The petitioner's service has also been regularized provisionally subject to approval by the Director, Panchayati Raj because it is the Director, Panchayati Raj who is the competent authority to regularize the service of the petitioner. 15. The petitioner's service has also been regularized provisionally subject to approval by the Director, Panchayati Raj because it is the Director, Panchayati Raj who is the competent authority to regularize the service of the petitioner. 15. It has been submitted on behalf of the respondent no.5 that a show-cause notice has been issued by the respondent no.4 against the respondent no.5 against the provisional regularization of the petitioner and that is the reason the order by which the petitioner, who was provisionally regularized, has been recalled by virtue of order dated 24.12.2010. It has been contended on behalf of the respondent no.5 that when the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar is the competent authority, then there is no occasion to issue show-cause notice by the respondent no.4 against the respondent no.5 for the provisional regularization having been passed by the respondent no.5. It has further been contended on behalf of the respondent no.5 that in terms of the order passed in W.P. (S) No.5176/2002 on 15.4.2004 the Personnel Department of the State of Jharkhand has already taken decision that the petitioner is not fit to be regularized in service on the ground that he has been engaged on daily rated basis after 1.8.1985. However, he has been given the minimum of pay scale. 16. The counter affidavit has been filed on behalf of the respondent nos. 2 to 4 stating, inter alia, therein that the proposal of the petitioner for regularization in service was examined by the Department and it was found that his regularization done by the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar is not in accordance with the provision of Section63 of the Bihar Panchayat Samiti and Zila Parishad Act, 1961 and also against the circular issued by the Government in this regard vide memo no.1134 dated 15.4.2005 issued by the Personnel, Administrative Reforms and Rajbhasha Department. 17. It has been contended that provision of Section-63 of the Bihar Panchayat Samiti and Zila Parishad Act, 1961 has been adapted by the State of Jharkhand. In view of that the case of the petitioner is not fit to be regularized. 17. It has been contended that provision of Section-63 of the Bihar Panchayat Samiti and Zila Parishad Act, 1961 has been adapted by the State of Jharkhand. In view of that the case of the petitioner is not fit to be regularized. It has further been contended that the appointment on the sanctioned post shall be made by the selection committee, especially to be constituted for the purpose of appointment and the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar shall be appointing authority. 18. It has further been contended that the case of the petitioner has already been considered by the Personnel, Administrative Reforms and Rajbhasha Department in compliance of the order passed by this Court in W.P. (S) No.5176/2002 and the claim of the petitioner was found illegal as would be evident from the order dated 15.4.2005 because the required procedure for appointment has not been followed. It has further been contended that the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar has, however, been instructed to do the needful in the light of Rule-63 of the Bihar Panchayat Samiti and Zila Parishad Act, 1961. 19. Heard the parties. 20. The petitioner has been appointed as daily rated employee in Class-III post as Steno-Typist on 28.4.1989. Thereafter, his case has been recommended by the District Establishment Committee vide its meeting held on 5.5.1995 for giving minimum of pay scale. When the minimum of pay scale has not been given to the petitioner, he preferred a writ petition before this Court in W.P. (S) No.5176 of 2002 on the ground that other persons have been permitted to continue in working in their initial place of posting and as such considering that aspect of the matter the writ petition was disposed of directing the respondent no.2 to look into the matter and pass an order in accordance with law. In terms of the order passed in W.P.(S) No.5176 of 2002 the competent authority i.e. the Personnel, Administrative Reforms and Rajbhasha Department has passed an order on 15.4.2005 which has been annexed as Annexure-C to the counter affidavit filed on behalf of the respondent no.5 wherein well reasoned order has been passed rejecting the claim of the petitioner by holding that on the basis of the enquiry report submitted by the Deputy Development Commissioner the process of reservation and other due procedure of appointment has not been followed at the time of appointment of the petitioner as a daily rated employee. It has further been held that the petitioner has been appointed as a daily rated employee after 1.8.1985. Considering that aspect of the matter, the claim of the petitioner has been rejected. The petitioner, although, has not challenged the order dated 15.4.2005, the same has attained its finality. 21. The petitioner, thereafter, has been regularized provisionally vide order issued in this regard by the Deputy Development Commissioner on 28.1.2010. While passing the said order it has been referred therein that the petitioner since been working as a daily rated employee for the last 20 years and he has filed writ petition before this Court vide W.P.(S) No.5176/2002 and W.P.(S) No.4058 of 2009, hence the petitioner has provisionally been regularized subject to the condition that he will get payment after sanction having been granted by the Director, Panchayati Raj, Government of Jharkhand. 22. The Director, Panchayati Raj has not given its approval as has been pointed out by the respondent no.5 in the counter affidavit, rather issued show-cause notice against the Deputy Development Commissioner cum Chief Executive Officer on 29.3.2007 on the ground that the claim of the petitioner has already been rejected vide order dated 15.4.2005 which has been passed in terms of the order passed by this Court in W.P.(S) No.5176 of 2002. Thereafter, by virtue of one another letter as contained in memo no.341 dated 29.3.2007 the recommendation has been rejected by the Director, Panchayati Raj, Government of Jharkhand, Ranchi which is itself on the order dated 15.4.2004 by which the claim of the petitioner has been rejected in terms of the order dated 5176 of 2002 the same has never been challenged by the petitioner. On the basis of the fact that the claim of the petitioner has already been rejected vide order dated 15.4.2005, the Deputy Development Commissioner has recalled the order dated 28.1.2010 vide impugned order dated 24.12.2010 referring therein the order dated 15.4.2005 and thereafter the petitioner has been reverted in the capacity of daily rated employee. 23. On the basis of the pleadings made herein above and on the basis of rival submission of the parties, the admitted position is that : (i) The petitioner has been performing his duty regularly since the year 1989. (ii) The respondent-Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar is in need of the service of the petitioner that is the reason the petitioner has been kept in service in daily rated capacity, being competent appointing authority in view of Bihar Panchayat Samiti & District Body (Service Conditions) Rules, 1964. (iii) It is also a fact that the claim of the petitioner for regularization has been rejected vide order dated 15.4.2005 by Personnel, Administrative Reforms and Rajbhasha Department of State of Jharkhand. The submission of the respondents-State as well as the respondent no.5 that since the claim of the petitioner has already been rejected vide order dated 15.4.2005 and as such nothing survives against the petitioner and he is not fit to be regularized in service, does not appeal to be justified due to the reason that the petitioner has been working since the year 1989 and in this regard rule has already been laid down in the case of State of Karnataka & Ors. vs. Uma Devi as reported in (2006) 4 SCC 1 wherein at paragraph-53 it has been laid down as follows : “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 regularization 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 above referred to and in the light of this judgment. The question of regularization 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 above referred 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.” 24. From perusal of para-53 it is evident that the cut-off date for regularization of the daily rated employee is dated 10.4.2006 i.e. the date of pronouncement of the judgment and if an employee has regularly performed his duty without any support of an interim order of any competent court of law, then his case is to be considered for regularization by the respondents-State. 25. Applying this ratio in the case of the petitioner, the petitioner has been regularly discharging his duty since 1989 and as on 10.4.2006 he had already rendered 17 years of continuous service without any support of an interim order of any competent court of law, is still in service, the case of the petitioner is to be looked into by the respondents. 26. So far as the contention of the respondent nos. 4 and 5 that by virtue of order dated 15.4.2005 claim of the petitioner has already been rejected and, as such, he cannot be regularized in service is concerned, it also does not seem to be justifiable reason because of the ratio laid down by the Hon'ble Apex Court in State of Karnataka & Ors. vs. Uma Devi, as referred herein above. vs. Uma Devi, as referred herein above. Even assuming that the claim of the petitioner has been rejected vide order dated 15.4.2005, then also the rule laid down by the Hon'ble Apex Court in constitutional Bench will be binding as per Article 141 of the Constitution of India and if any decision has been taken by the authorities concerned contrary to the rule laid down by the Hon'ble Apex Court by the Constitutional Bench, the rule laid down by the Constitutional Bench of the Hon'ble Supreme Court will prevail, not the administrative order issued by the authorities concerned taking into account the fact that the petitioner is still in service. 27. It is admitted fact that the petitioner has been retained in the capacity of daily rated employee which itself suggests that the respondent no.5 is in need of service of the petitioner. Hence, the petitioner cannot be forced to be superannuated from service in the daily rated capacity by the respondents. 28. In the totality of the facts and circumstances, the action of the respondent authorities does not seem to be justifiable and a person cannot be forced to work in a daily rated capacity for whole of his life. 29. In this regard, the judgment referred by the Hon'ble Supreme Court in the case of State of Karnataka & Ors. vs. M.L. Kesari & Ors. reported in (2010) 9 SCC 247 also needs to be seen. 30. Since the petitioner is in continuous service right from 1989, the action of the respondents to force him to work in a daily rated capacity is absolutely unjustified decision. 31. Hence, applying the principle laid down by the Hon'ble Apex Court in State of Karnataka & Ors. vs. Uma Devi and judgment rendered in the case of State of Karnataka & Ors. vs. M.L. Kesari & Ors. and further in view of the Rules 1964, since the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar is the competent authority to appoint Class-III employees, hence the matter requires to be considered in the light of the decisions as rendered by the Hon'ble Apex Court. 32. The case needs consideration by the respondents. 33. and further in view of the Rules 1964, since the Deputy Development Commissioner cum Chief Executive Officer, Zila Parishad, Deoghar is the competent authority to appoint Class-III employees, hence the matter requires to be considered in the light of the decisions as rendered by the Hon'ble Apex Court. 32. The case needs consideration by the respondents. 33. Accordingly, the writ petition is disposed of giving liberty to the petitioner to approach the Deputy Development Commissioner, Deoghar cum Chief Executive Officer, Zila Parishad, Deoghar -respondent no.5, who will decide the claim of the petitioner by passing a reasoned order in accordance with law within twelve weeks from the date of receipt of representation and communicate the same to the petitioner within two weeks thereafter.