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2014 DIGILAW 812 (JHR)

Suman Devi v. State of Jharkhand

2014-07-31

APARESH KUMAR SINGH

body2014
JUDGMENT 1. Heard learned counsel for the parties. 2. The petitioners, herein, have challenged the advertisement dated 22nd September, 2012, Annexure3, whereunder applications have been invited for filling up different posts in the Hazaribagh Central Cooperative Bank Ltd. claiming that the petitioners are working on the post of Bank Assistant and Peon respectively on daily wage basis for considerable length of time. Incidentally, it is to be noted herein that the advertisement in question was issued by the Registrar, Cooperative Societies, Government of Jharkhand in respect of 8 such Central Cooperative Banks, the respondent no. 5, Hazaribagh Central Cooperative Bank Ltd. being one of them. 3. The petitioners have also prayed for a mandamus upon the respondents, particularly the Bank to consider their cases for regularization on the strength of their claim that they have been continuing in service since long and in one case since 1994 on daily wage basis. The petitioners have also prayed for a restraint upon the respondents in acting upon the said advertisement. 4. At the outset, it is to be noted that while arguing the case, learned senior counsel appearing on behalf of the petitioners fairly submitted that so far as challenge to the advertisement is concerned, the same were also subject matter of challenge before the learned Single Bench of this Court in a batch of writ petitions being W.P.(S) No. 6214 of 2012 and other analogous cases, which were decided vide judgment dated 26th November, 2013,dismissingthesaidwrit petition. Learned senior counsel has further pointed out that they are pending in appeal before learned Division Bench of this Court. However, the writ petition has been argued mainly on the second prayer i.e. in relation to a direction upon the concerned respondents to regularize the services of these petitioners. Reliance has been placed upon a judgment rendered in the case of 16 such persons, who were serving in the same Bank and who have been regularized pursuant to the judgment dated 25th June, 2010 passed in W.P.(S) No. 2721 of 2005.The said judgment has been upheld in Letters Patent Appeal being L.P.A. No. 533 of 2010 dated 4th July, 2011, Annexure5 and the S.L.P. preferred against the same by the Respondent Bank stood dismissed on 14th November, 2011 vide Annexure6. Reliance has also been placed upon a judgment rendered in the case of Ramesh Mahto Vs. Reliance has also been placed upon a judgment rendered in the case of Ramesh Mahto Vs. State of Jharkhand & others passed in W.P.(S) No. 5924 of 2003 dated 31st July, 2012, Annexure7, whereunder the Respondent State has been directed to frame one time statutory scheme as directed by the Apex Court rendered in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 S.C.C 1 as also in other judgments rendered by the Apex Court thereafter. 5. Learned senior counsel for the petitioners has submitted that when the respondents consciously framed a scheme, took a decision to regularize those 16 employees and thereafter rescinded back, learned Single Bench of this Court quashed such a decision to deregularize them and directed them to be regularized by the judgment at Annexure4. Therefore, the respondents are not justified in making a discrimination between the present petitioners who have also been serving the Bank since long. Submissions have also been advanced that in the same Bank surplus employees of Daltonganj Central Cooperative Bank, which went under liquidation, have been regularized/absorbed, hence, there was no reason why the petitioners who have been working in the same Bank i.e. Parent Bank be not regularized. It has further been submitted that the petitioners' case would at least be considered by the respondents and if they are found to be coming within the purport of the regularization scheme and if they hold necessary qualification, they ought to be regularized as there are posts vacant in the Bank for which advertisement has been issued for regular recruitment. 6. Learned senior counsel for the petitioners has relied upon a judgment rendered by learned Division Bench of this court in the case of Kamal Prasad & Ors.Vs. State of Jharkhand & others reported in 2012 (1) J.C.R 477 (Jhr.), which has been affirmed by Hon'ble Supreme Court in the judgment rendered in the case of State of Jharkhand & Ors. vs. Kamal Prasad & Ors. reported in (2014) 2 JBCJ 406 (S.C). Reliance has also been placed upon a judgment rendered in the case of Piyu Datta Vs. vs. Kamal Prasad & Ors. reported in (2014) 2 JBCJ 406 (S.C). Reliance has also been placed upon a judgment rendered in the case of Piyu Datta Vs. State of West Bengal reported in (2012) 3 Supreme Today 655 as also in the case of State of Karnataka & othersvs. M.L. Kesari and others reported in (2010) 9 SCC 247 , paras 8 and 13 thereof where the ratio laid down in the case of Uma Devi (Supra) at para 53 has also been considered. Therefore, in the wake of aforesaid submissions, the petitioners have prayed for a direction upon the respondents to regularize them in service of the Respondent Bank 7. Learned counsel for the Respondent State, Mr. Ajit Kumar, A.A.G. has submitted that the case of the petitioners are not at all similar with those whose cases were decided by learned Single Bench of this Court by judgment at Annexure4 passed in W.P.(S) No. 2721 of 2005. Reference has been made to different paragraphs of the said judgment to support his contention that those persons were in engagement since 20 to 29 years continuously and there was a decision by the Board of Directors of the Respondent Bank for regularization of the services of said daily wages employees who were also recommended by the Joint Registrar of the Cooperative Department whereupon the Secretary, Cooperative Department had directed for regularization of the said employees. It is submitted that in these circumstances, when those employees who were in service for 20 to 29 years as daily wagers were deregularized and had come before this Court in 2005, the judgment at Annexure4 was rendered quashing the decision of deregularization and directing the respondents to take them as regular employees from the date when the Board of Directors and the Managing Committee of the Respondent Bank had approved and taken the decision to regularize their services. Learned counsel for the State has referred to statements made at para 5 of the writ petition where the details of engagement of4 petitioners are indicated and also referred to their purported appointment letters at Annexure1 which, according to him, are in the nature of representations where certain notings have only been made by the concerned official of the Bank. Learned counsel for the State has referred to statements made at para 5 of the writ petition where the details of engagement of4 petitioners are indicated and also referred to their purported appointment letters at Annexure1 which, according to him, are in the nature of representations where certain notings have only been made by the concerned official of the Bank. These petitioners have been engaged in the year 1994; 2003, 2002 and 2000 respectively and they obviously could not claim themselves at par with the petitioners in W.P.(S) No. 2721 of 2005.Learned counsel for the State has also refereed to the averments made in the counter affidavit and submitted that the Branch Manager who had engaged them do not have power to appoint them. In the Respondent Bank, no regular appointment has been made for the last 25 to 30 years and all such appointments are through back door entries who could not have been regularized as no reservation policy was also being followed. He has also relied upon a recent judgment rendered by learned Single Bench of this Court in W.P.(S) No. 6492 of 2012 dated 26th November, 2013 where the case of few other similarly placed daily wages/contractual employees were under consideration who were seeking regularization. According to the respondents, the learned Single Bench of this Court dismissed the writ petition specifically giving a finding that their cases were entirely different from the judgments relied upon by them which is the same judgment, Annexure 4 which has been relied in the present writ petition. Therefore, according to the Respondent State no regularization can be accorded to the services of these petitioners. He has also relied upon a judgment rendered by Hon'ble Supreme Court in the case of Nand KumarVs. State of Bihar & others reported in (2014) 5 SCC 300 in order to submit that daily wagers in engagement in an organization cannot be treated to be appointees in the strict sense of the term as they do not hold a post. 9. Learned counsel appearing for the Respondent Bank has adopted the submissions of the learned counsel for the State. He has however further submitted that the contention of the petitioner that surplus employees of Daltonganj Central Cooperative Bank under liquidation, were absorbed in the Respondent Bank while petitioners were discriminated, is not correct. 9. Learned counsel appearing for the Respondent Bank has adopted the submissions of the learned counsel for the State. He has however further submitted that the contention of the petitioner that surplus employees of Daltonganj Central Cooperative Bank under liquidation, were absorbed in the Respondent Bank while petitioners were discriminated, is not correct. The absorption of such surplus employees of the said Bank were undertaken in all other Central Cooperative Banks including the Respondent Bank and by virtue of a decision of the Cooperative department of the State Government, the Respondent Bank therefore cannot be alleged to have adopted a selective policy of absorption of such employees while leaving out these petitioners. 10. I have heard learned counsel for the parties and perused the relevant materials on record and the judgments relied upon by the petitioners. As has been observed earlier, the present case has been argued primarily and solely on the prayer made by the petitioners for a direction to regularize their services in the Respondent Bank and that too on the strength of the judgments rendered by learned Single Bench of this Court at Annexure4 being W.P.(S) No. 2721 of 2005. It is to be noted that the case of the petitioners in many ways do not stand similar to the writ petitioners in W.P.(S) No. 2721 of 2005, Annexure4.The petitioner no. 1 as per the statements made in para 5 of the writ petition is said to be working as Bank Assistant on daily wage since 13th April, 1994; petitioner no. 2 on the same post of Bank Assistant on daily wage basis since 29th July, 2003;petitioner no. 3 on the same post of Bank Assistant on daily wage basis since 1st June, 2002 and petitioner no. 4 on the post of Peon since 6th December, 2000.Perusal of Annexure1, the purported appointment letters also indicate that they are not in the nature of appointment even on daily wages rather on certain representations made by these petitioners notings have been made on the same representations that they could be paid certain remuneration at a particular rate or that certain more remuneration could be paid to them. In any case these petitioners cannot be said to be in engagement on daily wage basis also for a period of 20 to 29 years as has been in respect of other petitioners in W.P.(S) No. 2721 of 2005. In any case these petitioners cannot be said to be in engagement on daily wage basis also for a period of 20 to 29 years as has been in respect of other petitioners in W.P.(S) No. 2721 of 2005. Moreover there are no decision in respect of these petitioners of the Respondent Bank as is evident in the case of other persons regarding regularization of their services.The services of those petitioners were regularized on the decision of the Managing, Board of Directors of the Respondent Bank and further on the decision of the Secretary, Cooperative Department thereafter in the year 2003 which were however revoked by the Respondent Bank which led to the said litigation. The said writ petition itself was preferred in the year 2005 and by that time except petitioner no. 1, the other 3 petitioners could not have completed even more than 5 years of engagement as daily wagers. Reliance upon the said judgments by these petitioners is therefore misplaced. The case of the petitioners appears to be similar to those of the writ petitioners in W.P.(S) No. 6492 of 2012 which stood dismissed on 26th November, 2013 by learned Single Bench of this Court. From perusal of the said judgment, it appears that the said petitioners were also working as contractual/daily wages employees for a period 3 to 12 years in the same Bank. Learned Single Bench considering the facts of the case entirely different from the judgments relied upon by the said petitioners in W.P.(S) No. 2721 of 2005, Annexure4 in the present writ petition, therefore, did not find any merit in the writ petition and accordingly the same was dismissed. The judgments relied upon by the learned senior counsel for the petitioners in the case of Kamal Prasad & others(supra) as affirmed by Hon'ble Supreme Court earlier were in circumstances where the said persons who were initially engaged as Junior Engineer/Assistant Engineer had continued for a period of 29 years when they were being removed by the Respondent State. The said judgment therefore is distinguishable on facts. The other two judgments relied upon by learned senior counsel for the petitioners in the case of Piyu Datta Vs. The said judgment therefore is distinguishable on facts. The other two judgments relied upon by learned senior counsel for the petitioners in the case of Piyu Datta Vs. State of West Bengal reported in (2012) 3 Supreme Today 655 (Supra) as also in the case State of Karnataka & others vs. M.L. Kesari and others reported in (2010) 9 SCC 247 (Supra) are also inapplicable to the facts of the present case as the ratio of the Constitution Bench Judgment rendered in the case of Uma Devi(supra) at para 53 as has been refereed to therein are also inapplicable to the present case since in the case of Uma Devi decided in 2006 the Hon'ble Apex Court had observed that as one time measure the Respondent State instrumentalities were required to frame a scheme for regularization in respect of those employees who had continued through irregular appointment and not illegal appointment for a period of 10 years. In the present case as has been noticed hereinabove, except petitioner no. 1 none of the other petitioners can be said to have even completed more than 6 years by the time the judgment was rendered in the case of Uma Devi by the Apex Court. 11. The respondents, in their counter affidavit, have also categorically stated that the petitioners were not appointed by any competent authority as the Branch Manager who had engaged them at different points of time had no power to appoint them. Moreover, they have also stated that in the Respondent Bank no regular appointment had been made for the last 25 to 30 years and no rule of reservation has been followed. To over come this anomaly, which had continued for a considerable length of time a centralized recruitment process had been initiated under the advertisement at Annexure3 in question and challenge to the same by other writ petitioners have already been negatived by the judgment rendered by learned Single Bench of this Court earlier. 12. Therefore, in the aforesaid background of facts and reasons discussed hereinabove, the petitioners have failed to make out a case for directing the respondents to consider their cases for regularization in the Respondent Bank. The writ petition is therefore devoid of any merit and is accordingly dismissed. The interim order, if any, stands vacated. Consequently, I.A. 3275 of 2014 also stands disposed of.