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2014 DIGILAW 826 (JHR)

Manohar Prasad v. State of Jharkhand

2014-08-05

APARESH KUMAR SINGH

body2014
Order Heard learned counsel for the petitioner and the State. 2. The present petitioner had earlier approached this Court in W.P.S. No. 958 of 2003 along with 3 others making a claim for regularization on the ground that he was also working under the Work Charge Establishment continuously without any break and also for payment of wages from March, 2002. The said writ petition was however dismissed on the plea raised by the Respondents that the said petitioners have been removed from Work Charge Establishment from March, 2002 and thereafter they are not working. Further it was observed that their engagement was no more required. Petitioner along with 3 others went in appeal being L.P.A. No. 361 of 2007 against the impugned judgment dated 7.8.2007 passed in the said writ petition by the learned Single Judge. By judgment dated 9.9.2009 the said L.P.A was allowed and the impugned judgment passed by the learned Single Judge was set aside. The matter was remanded to the Secretary, Road Construction Department to consider the case of the Appellants for their regularization / absorption and take a decision in accordance with law within a period of 3 months from the date of receipt / production of the copy of the order. The observations of the learned Division Bench vide judgment dated 9.9.2009 as contained at para 9 to 12 are quoted herein below:- “9. In the instant case, it appears that undisputedly these petitioners were continuously working in the work charge establishment but their salary was stopped by the order of the Chief Engineer vide letter dated 14.9.2002. A copy of the said letter is annexed, as annexure-4 to the memo of appeal from which it is evidently clear that salary was not paid for want of allotment of fund by the Government. 10. In course of argument, learned counsel appearing for the appellants produced before us a copy of the resolution dated 18.7.2009 issued by the Cabinet Secretariat Avam Co-ordination Department, Govt. of Jharkhand and submitted that in the light of the Supreme Court judgment, the Government of Jharkhand has decided to consider the case of employees who have continuously worked for ten years or more in duly sanctioned post as one time-measure. Mr. Tandon, learned Standing Counsel, very fairly submitted that the case of the appellants shall be considered by the concerned authorities in accordance with law. 11. Mr. Tandon, learned Standing Counsel, very fairly submitted that the case of the appellants shall be considered by the concerned authorities in accordance with law. 11. Having regard to the facts that appellants admittedly have worked for more than 20 years in work charge establishment and in the light of the letter referred to herein above, at least appellants are entitled to be considered for regularization in service in accordance with law. 12. For the reason aforesaid, this appeal is allowed and the impugned judgment passed by the learned Single Judge is set aside. The matter is remitted back to the Secretary, Road Construction Department, Government of Jharkhand, Ranchi to consider the case of the appellants for their regularization/absorption and take a decision in accordance with law within a period of three months from the date of receipt / production of a copy of this order”. 3. Petitioner's claim thereafter was however rejected by a reasoned order no. 193 dated 25.5.2010, Annexure-9 passed by the Secretary, Road Construction Department, Government of Jharkhand on the ground that the educational qualification for appointment to the post of a driver was 8th pass while one of the petitioner in the said case namely Bhola Singh was 7th pass and the present petitioner did not show any educational qualification. The other two petitioners in the said case namely Birendra Kumar Singh and Shankar Dayal Tiwary were considered for appointment on the post of Choukidar and Peon on having found that they are having minimum educational qualification. After coming to know that his claim has been rejected, the present petitioner challenged the said reasoned order in W.P.S. No 2993 of 2012. Learned Single Judge of this Court vide judgment dated 27.8.2012(Annexure-10) directed the concerned authorities of the Respondent-State to pass a fresh order after verifying the genuineness of the transfer certificate of the petitioner where it was revealed that he studied till Class 9 and therefore it was observed that he has passed Class 8. The said judgment is itself quoted herein below:- “Perusal of the impugned order dated 11.01.1985(Annexure-1 to the writ petition) would reveal that petitioner's case was rejected only on the ground that petitioner is not having requisite qualification while minimum qualification required for the post of Driver is Class-VIII. Perusal of the transfer certificate (Annexure-10) would reveal that petitioner has studied till Class-IX, therefore, he has passed Class-VIII. Perusal of the transfer certificate (Annexure-10) would reveal that petitioner has studied till Class-IX, therefore, he has passed Class-VIII. Learned counsel for the respondents has fairly stated that let petitioner move a representation annexing therewith the original of the transfer certificate(Annexure-10). After verifying the genuineness of Annexure-10 fresh decision shall be taken on the representation within 90 days thereafter. Without expressing any opinion on the merit of the claim of the petitioner, present petitioner is disposed of with the direction that petitioner shall move a representation along with the original transfer certificate within 30 days. In the event of receiving the representation of the petitioner, concerned authorities of the respondents, after verifying the genuineness of the transfer certificate, shall pass fresh order within 60 days thereafter”. 4. Incidentally the other petitioner namely Bhola Singh in the original writ petition being W.P.S. No. 958 of 2003 was thereafter taken in regular Work Charge Establishment by order dated 6.5.2012 (Annexure-11). Petitioner's case was however once again rejected by the impugned order at Annexure-12 passed by the Secretary, Road Construction Department on the ground that in terms of the resolution dated 2.9.2011 of the Finance Department, petitioner does not fulfill the minimum educational qualification of 10th pass for appointment to any such Grade D post like that of a Road Roller Driver. Petitioner, therefore has again approached this Court challenging the same. 5. Learned counsel for the Respondent relying upon the averments made in the counter affidavit has stated that petitioner was disengaged from February 2002 and no work has been taken from the petitioner, thereafter. Further, he had not produced the original certificate when the previous reasoned order was passed on 25.5.2010. It has been further submitted that the educational qualification for appointment to such post is specifically prescribed as 10th pass now in view of the Finance Department resolution dated 2.9.2011, which the petitioner does not fulfill. Therefore his claim has rightly been rejected. 6. Having heard counsel for the parties and upon perusal of the relevant materials on record, it appears that there was a specific direction upon the respondents by the judgment passed in L.P.A. No. 361 of 2007 dated 9.9.2009 which is also quoted herein above to consider the case of the said appellant including the petitioner for regularization / absorption. 6. Having heard counsel for the parties and upon perusal of the relevant materials on record, it appears that there was a specific direction upon the respondents by the judgment passed in L.P.A. No. 361 of 2007 dated 9.9.2009 which is also quoted herein above to consider the case of the said appellant including the petitioner for regularization / absorption. The learned Division Bench has also taken note of the fact that the appellants had admittedly worked for more than 20 years in Work Charge Establishment and were entitled to be considered for regularization in service. Learned Division Bench has also taken into account the contention of the respondents and observed that salary of the petitioner was stopped by the order of Chief Engineer through letter dated 14.9.2002. The contention raised on behalf of the Respondents now, therefore were considered by the learned Division Bench while deciding the L.P.A and directing the Respondents to consider the case for regularization / absorption of their services. When the case of the petitioner was rejected through a reasoned order dated 25.5.2010 on the ground that he did not have any educational qualification and that the minimum educational qualification was 8th pass for appointment to such post, learned Single Judge of this Court in W.P.S No. 2993 of 2012 decided on 27.8.2012 made categorical observation that the transfer certificate of the petitioner revealed that he was 8th pass as he was shown to have studied till Class 9. The Respondents were therefore directed to take a fresh decision after verifying the genuineness of the transfer certificate. The transfer certificate of the petitioner has been verified, as would appear from the impugned order at Annexure-12 dated 4.6.2013 by the District Superintendent of Education, Ranchi and has not been found to be fake or manipulated. The grounds for rejection of the petitioner's claim that he does not have the educational qualification of 10th pass in view of the Finance Department circular dated 2.9.2011 is no longer open for the Respondents to defeat the petitioner's claim for consideration of regularization as directed by learned Division Bench of this Court earlier. Even otherwise also the cause of action arose for the petitioner when he preferred W.P.S 958 of 2003 and when learned Division Bench passed the judgment on 9.9.2009. Even otherwise also the cause of action arose for the petitioner when he preferred W.P.S 958 of 2003 and when learned Division Bench passed the judgment on 9.9.2009. Therefore on the basis of resolution dated 2.9.2011 the Respondents cannot defeat the claim of the petitioner which ought to have been considered in the light of the judgment passed by the learned Division Bench of this Court earlier and on the basis of the circular which laid down the educational qualification for such appointment to the post of driver as 8th pass. Another co-petitioner, Bhola Singh also seems to have been appointed on the strength of qualification of 7th pass in May, 2012. 7. Therefore, upon consideration of all these facts and circumstances, the impugned order dated 4.6.2013 cannot survive in the eye of laws and the rejection of the petitioner's claim on the ground that he has not passed 10th examination is not open to the Respondents to reject his case. The impugned order is accordingly, quashed. The Respondents are required to take a fresh decision in the matter in accordance with law within a period of 10 weeks from the date of receipt of copy of this order. 8. The writ petition is allowed in the aforesaid manner.