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2016 DIGILAW 218 (JHR)

Jai Prakash Prasad v. State of Jharkhand

2016-01-28

APARESH KUMAR SINGH

body2016
ORDER : Heard learned counsel for the parties. 2. The order dated 14.1.2016 is referred to herein below as it contains the gist of the grievances of the petitioners:- “Counsel for the petitioners, while assailing the impugned advertisement at Annexure-8, submits that the petitioners, who have got the benefit of an order of relaxation of age as per Annexure-5 dated 10.03.2008 passed by the Home Secretary, Jharkhand pursuant to an order passed in WPS No. 433/2007 (Benjamin Hembram & others vs. The State of Jharkhand & others), would be denied eligibility as being age barred in the instant impugned recruitment exercise to the post of Warden. Petitioners have continued for more than thirty years since their original engagement on Muster Roll basis since 1985-86. It is also submitted by the counsel for the petitioners that under Regularization Rules framed on 13.02.2015, petitioners would otherwise also have a chance for regularization, if all the vacancies are not filled up in the instant recruitment exercise. 2. Counsel for the State prays for short indulgence to obtain instruction in the matter and file their response. 3. Accordingly, list the case on 21.01.2016”. 3. After few adjournments counter affidavit has been filed by the respondent-State sworn by the respondent no.4. Learned counsel for the respondent-State submits that petitioners cannot claim age relaxation and weightage over other eligible candidates as the recruitment exercise is being conducted under the provisions of Jharkhand Warden Cadre (Appointment, Promotion and Service Conditions) Rule 2013, which prescribes the minimum eligibility criteria including that of upper age limit. The details of individual petitioners are furnished at Para 6 of the counter affidavit. He further submits that petitioners are also not entitled for regularization in view of the Jharkhand Service Regularization Rules, 2015. This contention of the respondent-State that petitioners cannot claim regularization is not substantiated by the averments made in the counter affidavit or through the submission made by learned counsel for the State. It is further submitted that petitioner no.4 to 6 are getting the benefit of compulsory deductions of GPF, GIC and monthly payment and are availing staff quarter though there are break in their service prior to 1992. 4. It is their case that the present recruitment exercise is within the frame work of Law and petitioners can only claim consideration if they fit in the criteria prescribed therein. 4. It is their case that the present recruitment exercise is within the frame work of Law and petitioners can only claim consideration if they fit in the criteria prescribed therein. Enclosures to the counter affidavit at Annexure-A series contain the relevant details of the individual petitioners as supplied by the Superintendent of Divisional Jail at Chaibasa, Dumka and Birsa Munda Central Jail, Hotwar, Ranchi. Details of their engagement shows that they are working since 1985-86 in one or the other case. 5. Learned counsel for the petitioner submits that engagement of the petitioners since 1985-86 is not a matter of dispute though it is continued on muster roll basis since then for more than 30 years. It is submitted that petitioners' claim should be considered by giving them age relaxation in view of the specific order passed by the Home Secretary of the State contained in Annexure-5 dated 10.3.2008 pursuant to the order passed by learned Single Judge of this Court in W.P.S. No. 433 of 2007 in the case of some of the petitioners. In W.P.S. No. 1281 of 2009 other petitioners were parties. There is no reason why in the alternative their claim for regularization cannot be considered as they have continued to work under muster roll for 30 years and there is existence of vacancy under the department as notified under the advertisement in question. 6. Considering the submission of the parties in the light of relevant material facts pleaded, it is evident that the present recruitment exercise is being conducted under the Rules of 2013. Rules of 2013 relate to recruitment to the post of Warden in different jails in the State and lay down the eligibility criteria of educational qualification and age limit also. The maximum age limit is said to be 25 years for such recruitment. The order of the Home Secretary, Government of Jharkhand dated 10.3.2008 (Annexure-5) relied upon by the petitioners cannot be said to override the statutory rule laying down the maximum and minimum age limit prescribed for such recruitment. 7. In such circumstances, petitioners though are under continuous engagement under muster roll since 1985-86, but cannot seek advantage of age relaxation on the basis of the order dated 10.3.2008 in view of the Statutory Rules, 2013 in force. The Rules of 2013 or its provisions are not under challenge. 7. In such circumstances, petitioners though are under continuous engagement under muster roll since 1985-86, but cannot seek advantage of age relaxation on the basis of the order dated 10.3.2008 in view of the Statutory Rules, 2013 in force. The Rules of 2013 or its provisions are not under challenge. However, there is no reason why the claim for regularization of these petitioners cannot be considered under the Regularization Rules, 2015 upon satisfaction of eligibility criteria prescribed therein as petitioners definitely appear to have continued for more than 10 years on muster roll basis/daily wage engagement since 1985-86 by the cut of date 10.4.2006, prescribed there in. If the claim of the petitioners are not considered in accordance with law and as per the Rules of 2015 even for the purpose of regularization, it would wholly inequitable and unjust. The Regularization Rules, 2015 have been framed by the Government of Jharkhand, Department of Personnel, Administrative Reforms and Rajbhasha vide notification dated 13.2.2015 pursuant to the directions passed by the Hon'ble Supreme Court in the case of State of Karnataka & others Vrs. Uma Devi & others reported in (2006) 4 SCC 01. The State itself has taken sufficient time to frame the Rules, which prescribes necessary eligibility criteria to be satisfied and also scrutiny of individual application of eligible persons by a duly constituted committee at every level. 8. This Court in the circumstances, is of the opinion that petitioners should be allowed to stake their claim for regularization in terms of the provisions of the Regularization Rules, 2015 before the competent authority/Respondent no.3, Inspector General of Prison, Govt. of Jharkhand, Ranchi duly supported with all necessary facts and documents by way of representation. Needless to say that if the petitioners satisfy the eligibility criteria prescribed there under, competent authority/respondent no.3 would consider their case by placing the matter before the duly constituted Committee as per the Regularization Rules, 2015 within a reasonable time, preferably 16 weeks from the date of such representation being made. Respondents may keep in mind while according such consideration that the claim of the petitioners be not frustrated on account of filling of all the advertised posts. 9. The writ petition is disposed of with the aforesaid observations. Petition disposed of.