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2017 DIGILAW 314 (JHR)

Suresh Oraon v. State of Jharkhand

2017-02-14

SHREE CHANDRASHEKHAR

body2017
ORDER : 1. A common order dated 28.02.2005 passed by the Secretary, Co-operative Department, Government of Jharkhand has been impugned in these writ petitions. 2. The learned counsels appearing for the parties state that a common issue is involved in both the writ petitions, whether regularization of the petitioners who were working as daily-wages workers can be approved in law or not. With consent of the counsels appearing for the parties, both the writ petitions are heard and disposed of at this stage itself. 3. Heard. 4. Before adverting to the rival contentions raised on behalf of the parties, brief facts in both the writ petitions need to be recorded. W.P. (S) No. 1691 of 2005 (i) Petitioner no. 1 was appointed on 01.07.1985 and he claims that at the time of regularization he was working on the post of Assistant. Petitioner no. 2 has also pleaded similar facts claiming that he was working on the post of Anusevak since 01.08.1984. Similarly, the petitioner no. 3 is working on the post of Typist from 01.12.1984. W.P. (S) No. 3403 of 2005 (ii) Petitioner nos. 1 and 2 were appointed on the post of driver and they claim that they are working since 01.07.1987 and 13.08.1990, respectively. Petitioner nos. 3 to 5, 8 and 10, 11 and 13 to 16 were appointed on the post of Anusevak. They were appointed between the period 11.02.1982 to 06.05.1988. Petitioner nos. 6, 7 and 9 were appointed on the post of Assistant. They were appointed between the period 1988 to 1992. Petitioner no. 17 was appointed on 01.01.1989 as Night-guard. These petitioners are working under Gumla Simdega Central Co-operative Bank Limited, Gumla. (iii) All these petitioners were regularized vide orders dated 06.11.2003 and 15.12.2003. Admittedly, when the aforesaid orders for their regularization were issued, except petitioner no. 12, they had completed 10 years of continuous service. Petitioner no.12 was appointed on compassionate ground when her husband died. (iv) When an issue for regularization of these petitioners were raised in the Assembly, in the light of the response of the Government, a Committee was constituted by the Secretary, Co-operative Department to look into the matter. 12, they had completed 10 years of continuous service. Petitioner no.12 was appointed on compassionate ground when her husband died. (iv) When an issue for regularization of these petitioners were raised in the Assembly, in the light of the response of the Government, a Committee was constituted by the Secretary, Co-operative Department to look into the matter. Thereafter, letter dated 06.11.2003 was issued in respect of regularization of the petitioners in W.P. (S) No. 1691 of 2005 and letter dated 15.12.2003 was issued by the departmental Secretary in respect of regularization of petitioners in W.P. (S) No. 3403 of 2005. 5. Mrs. Ritu Kumar, the learned counsel for the petitioners has tendered a chart disclosing current pay and salary received by the petitioners, which would disclose that the petitioners have been paid salary at par with regular employees. Petitioner namely, Mangru Mahto superannuated from service on 31.10.2015 and the petitioner namely, Sukla Singh retired on 30.04.2005. Petitioner namely, Bandhan Khariya had left service in August, 2007 and the petitioners namely, Suresh Oraon, Bhikham Tana Bhagat, Peter Ekka and Rati Oroan have died during the pendency of the writ petition. 6. This chart is taken on record. 7. Be tagged it at its proper place. 8. Vide order dated 12.04.2005, operation of the impugned order dated 28.02.2005 was stayed by this Court. 9. The learned counsel for the petitioners contends that the process of regularization was duly followed before the letters for regularization of these petitioners were issued. Moreover, this is not an allegation by the respondents that these petitioners were initially inducted in service illegally. Learned counsel for the petitioners has contended that power of the employer to regularize the service of its employees is not a concept which has been evolved for the first time in the judgment of Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 . In fact, the employer has had this power prior to the decision in Umadevi and this has been recognised by the Supreme Court in State of Karnataka and Others vs. M.L. Kesari and Others, (2010) 9 SCC 247 . Per contra, Mr. In fact, the employer has had this power prior to the decision in Umadevi and this has been recognised by the Supreme Court in State of Karnataka and Others vs. M.L. Kesari and Others, (2010) 9 SCC 247 . Per contra, Mr. Mrinal Kanti Roy, the learned counsel for the Co-operative Bank contends that Gumla Simdega Central Co-operative Bank Limited is constituted under the Co-operative Act, 1935 and in the matters of appointment and regularization of daily-wages workers, the Secretary, Co-operative Department has no jurisdiction to issue an order for regularization of daily-wagers. It is further contended that the regularization of the petitioners with retrospective date is patently illegal. 10. From the materials brought on record, it appears that engagement of the petitioners from their respective dates has not been challenged by the respondent-Bank. Their eligibility for appointment on the post for which they were engaged is also not under challenge. It is also not in dispute that by the time process for their regularization was initiated they all except petitioner no.12 had completed about 10 years of service and by the time the order of regularization was issued they had, in fact, completed continuous 10 years of service. It is not a plea raised by the respondent-Bank that these petitioners were not appointed against sanctioned vacant post. In fact, the affidavit filed in the present proceedings would disclose that against 102 sanctioned posts only 47 regular employees were working, when the petitioners were regularized in service. The Managing Committee of the Co-operative Bank (Administrator) has not taken a stand that when these orders of regularization dated 06.11.2003 and 15.12.2003 were issued by the Managing Director, it had no knowledge of the same. It is stated that the Managing Committee of the Bank was superseded way back early 1990s and its powers are vested in the Deputy Commissioner as the Administrator. 11. In the aforesaid facts, it must be held that the petitioners were eligible for regularization in service. They were regularized on sanctioned vacant posts and they have continued in service for more than 13 years after their regularization in service. Obviously, they have acquired some right in equity. At this stage, interference with the orders of their regularization on the ground that procedure under the existing circular was not followed is not warranted and accordingly, orders dated 6.11.2003 and 15.12.2003 are restored. 12. Obviously, they have acquired some right in equity. At this stage, interference with the orders of their regularization on the ground that procedure under the existing circular was not followed is not warranted and accordingly, orders dated 6.11.2003 and 15.12.2003 are restored. 12. Insofar as regularization of the petitioners from 1993, that is, from a retrospective date is concerned, I find considerable force in the plea raised by the learned counsel for the respondent-Bank. The claim of the petitioners was not founded on the principle of equal pay for equal work. It was a simple case of regularization of daily-wages workers and while so, the petitioners were entitled for benefit of regular service only from the date of regularization. Monetary benefits extended to the petitioners on account of orders dated 06.11.2003 and 15.12.2003, prior to these orders is patently illegal. Accordingly, excess payment made to the petitioners till 06.11.2003 (in W.P. (S) No. 1691 of 2005) and till 15.12.2003 to the petitioners (in W.P. (S) No. 3403 of 2005) shall be recovered from them, however, in view of long 14 years when the benefits were extended to the petitioners, the excess payment to them shall be recovered in equal installment viz-a-viz their remaining service. 13. Recovery shall not be effected from the persons who have already superannuated or died or left the service. 14. Accordingly, these writ petitions stand allowed, to the aforesaid extent and only in respect of the petitioners. The impugned order dated 28.02.2005 stands quashed, in part.