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2017 DIGILAW 164 (JHR)

Rambali Das v. State Of Jharkhand

2017-01-20

SHREE CHANDRASHEKHAR

body2017
ORDER Chandrashekhar, J. – After arguing for sometime, the learned counsel for the petitioners confined the prayer in the writ-petition to the extent, a direction be issued to the respondent-State to consider regularization of the petitioners in terms of the Regularisation Rules notified vide Resolution dated 13.02.2015. The learned counsel tenders a copy of order passed in W.P.(S) No.2538 of 2015. 2. The petitioner No. 1 was engaged on daily-wages on 01.02.1984 and the petitioner no.2 on 01.08.1983. It is admitted by the respondent-State that they are continuously working since then. However, an objection has been taken pleading that they are not working against sanctioned post. In the supplementary counter-affidavit dated 18.07.2016 filed on behalf of the respondent no.6, the respondents have pleaded that there are 82 sanctioned posts of Forest Guards in Khunti Forest Division. The said affidavit discloses that 71 posts of Forest Guards and 6 class-IV posts are vacant. 3. The learned counsel for the respondent-State contends that the petitioners who are working as daily-wagers would not come under the purview of the Regularisation Rules framed by the State in compliance of direction issued by the Supreme Court in Secretary, State of Karnataka v. Uma Devi reported in (2006) 4 SCC 1 . 4. Dealing with a similar plea this Court in W.P.(S) No.2538 of 2015 has held thus; "6. Insofar as, the contention that daily-wagers do not fall under the one-time scheme formulated by the State Government vide Notification dated 13.02.2015 is concerned, I find that no such classification is indicated under 2015 Rules. In fact Para 43 of the judgment in "Secretary, State of Karnataka & Others v. Umadevi (3) & Others" reported in (2006) 4 SCC 1 refers to appointment on daily-wages and on casual basis and the one-time scheme envisaged under Para- 53 of the said judgment would definitely cover persons continuously working for more than 10 years on daily-wages. The reliance on the decision in "State of Karnataka & Others v. Ganapathi Chaya Nayak & Others" reported in (2010) 3 SCC 115 is clearly distinguishable on facts. In the said case, under the scheme formulated by the State Government the persons working prior to 01.07.1984 were eligible for regularization of their services whereas, the applicants/employees were appointed after the said cut-off date. In the said case, under the scheme formulated by the State Government the persons working prior to 01.07.1984 were eligible for regularization of their services whereas, the applicants/employees were appointed after the said cut-off date. Similarly, the claim of the employee in "Official Liquidator v. Dayanand & Others" reported in (2008) 10 SCC 1 was for absorption, which would have resulted in virtual abrogation of the statutory rules for appointment to different cadres by direct recruitment. The present is not a case like the one pleaded in Dayanand''s case. 7. In the present proceeding the respondents have not disputed that the petitioners are eligible for appointment on the posts on which they have been working as daily-wagers. The dispute sought to be raised by the respondents is that, the petitioners were not appointed against the sanctioned vacant posts. However, the respondents have not disclosed the number of sanctioned vacant posts in each category. Rather, the pleadings in W.P.(S) No. 2404 of 2010 (Jharkhand Van Shramik Union, Daltonganj v. The State of Jharkhand & Others) , which has been heard along with the present case disclosed that there were more than 2200 sanctioned vacant posts for which Advertisement No.3/14 was issued, however, only one candidate was found eligible for appointment. It shocks the judicial conscience of the Court that after taking work for 31 years and admitting that the petitioners have been paid wages for 26 days for each month, the claim of the petitioners for regularization is sought to be disputed. The respondents have taken a vague plea, not supported by any document, that the petitioners were not appointed against the sanctioned vacant posts. The judgment in Umadevi case definitely does not comprehend a situation like this and admittedly, the said judgment does not exclude the petitioners from claiming regularization. If at all posts were not sanctioned, the fact that the respondents continued to take work from the petitioners for about 31 years definitely disclose a need for such posts on which the petitioners are working, and now, for the fault on the part of the respondent-State in not sanctioning the posts, the petitioners'' claim for regularization in terms of Notification dated 13.02.2015 cannot be declined. In view of large number of vacancies existing in the Department, the petitioners'' case must be considered for regularization." 5. In view of large number of vacancies existing in the Department, the petitioners'' case must be considered for regularization." 5. The State even after the judgment in "Umadevi" continued to permit the petitioners and other similarly situated employees to work either on contract basis or as daily-wages workers. No reason has been disclosed by the respondent-State why the judgment in" Umadevi" was not followed by the State, within six months. It would be useful to notice the observation of the Supreme Court in "State of Karnataka v. M.L. Kesari" (2010) 9 SCC 247 : "The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10- 4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure." 6. The respondent-State which continued to permit the petitioners to work on daily-wages for long 33 years, ten years after the judgment in Umadevi, cannot raise a plea that the petitioners are not working on sanctioned posts. In fact, there are large number of sanctioned vacant posts, as noticed in the connected writ-petitions. The respondent-State which continued to permit the petitioners to work on daily-wages for long 33 years, ten years after the judgment in Umadevi, cannot raise a plea that the petitioners are not working on sanctioned posts. In fact, there are large number of sanctioned vacant posts, as noticed in the connected writ-petitions. Now, the State which has ignored the direction in Umadevi case with impurity for long 10 years cannot be permitted to rely on the said judgment to deny the claim of the petitioners and other similarly situated daily-wages workers for their regularisation. Dealing with various contentions raised by the respondent-State, a detailed order has been passed in W.P.(S) No.466 of 2015. Accordingly, directions issued in W.P.(S) No. 466 of 2015 shall govern this case also. Their cases shall also be examined in the light of those directions. 7. The writ-petition stands allowed, in the aforesaid terms.