Jharkhand Rajya Asthayi Vidyut Karamchari Sangh v. State of Jharkhand, through the Chief Secretary, Government of Jharkhand, Ranchi
2017-05-10
SHREE CHANDRASHEKHAR
body2017
DigiLaw.ai
ORDER : Jharkhand Rajya Asthayi Vidyut Karamchari Sangh petitioner no.1 and a daily-wages employee claiming himself engaged since last two decades have joined together to file the instant writ petition with the following prayers. “(I) commanding upon the Respondents to allow the members of the petitioner Sangh to participate and be considered for selection initiated vide employment notification no.02/2015 (Annexure-6) keeping in view the criteria spelt out in the order of the Hon'ble High Court dated 23.12.2003 passed in W.P.(S) No.6376/2003 and or to absorb/regularize the members of the petitioner Sangh as permanent employees of Jharkhand Urja Vikas Nigam Limited; (II) quashing the pending selection/appointment process as initiated vide employment notification no. 02/2015 (Annexure-6) to the extent of depriving the members of the petitioner Sangh of participation and consideration therein.” 2. Initial challenge by the petitioners was to Employment Notification No. 02/2015, however, after the respondent JUVNL issued Employment Notification No. 02/2016, the writ petition was amended vide order dated 14.06.2016 in I.A. No. 1797 of 2016 by incorporating a prayer seeking direction upon the respondent JUVNL to permit the members of petitioner Sangh to participate in selection pursuant to Employment Notification No. 02/2016. 3. Heard. 4. Briefly stated, the petitioner no.1 claims that it is registered under Trade Union Act, 1926. Its members are engaged under JUVNL for about two decades on casual basis for carrying out different jobs including, disconnection of lines, collection of revenue, repair and other related works. The petitioner Sangh apparently does not know the name and number of its members, for it has failed to produce a list of its members in the present proceeding. The petitioner no.2 also does not know date of his engagement under erstwhile BSEB/JSEB. He has not produced his letter of appointment/engagement. At this stage, Mr. Pandey Neeraj Rai, the learned counsel for the petitioners submits that the petitioners have craved leave of the Court for producing the list of members of the petitioner Sangh. Tendering a list, he submits that it may be taken on record. Mr. Ajit Kumar, the learned Senior Standing Counsel for the respondent JUVNL opposes the prayer, submitting that at this stage it can not be taken on record, for this requires verification. I find substance in the opposition. 5. Mr.
Tendering a list, he submits that it may be taken on record. Mr. Ajit Kumar, the learned Senior Standing Counsel for the respondent JUVNL opposes the prayer, submitting that at this stage it can not be taken on record, for this requires verification. I find substance in the opposition. 5. Mr. Pandey Neeraj Rai, the learned counsel for the petitioners contends that cause of action for the petitioners to approach this Court arose when the respondent-JUVNL tried to change the essential eligibility condition for appointment on the post of Junior Lines Man, Switch Board Operator Gr. II and Fitter Gr. II. The learned counsel refers to “job contents, qualification and experience for different categories of workmen in the Bihar State Electricity Board”, to contend that while a qualification in ITI is an alternative qualification, in the Employment Notification No. 02/2015 it was purposely made the only eligibility criteria for ousting the members of the petitioner Sangh from selection. The learned counsel further submits that since direction of the Supreme Court in “Secretary, State of Karnataka vs. Umadevi (3)” (2006) 4 SCC 1 was not complied by the respondents, an alternative prayer for absorption/regularization of the members of the petitioner Sangh as permanent employee of Jharkhand Urja Vikas Nigam Limited has also been made. 6. When the learned counsel for the petitioners during the course of argument insisted that there is still something left in the Employment Notification No.02/2015 to a query of the Court, whether it still subsists, the learned counsel states that he has no instruction insofar as, Employment Notification No. 02/2015 is concerned. Mr. Ajit Kumar, the learned Senior Standing Counsel for the respondent-JUVNL states that it is a matter of record that selection pursuant to Employment Notification No. 02/2015 has since been made. The affidavits filed by the respondent-JUVNL would disclose that subsequently Employment Notification No. 02/2016 has also been cancelled and a fresh advertisement vide Employment Notification No.03/2016 has been issued. 7. Mr. Pandey Neeraj Rai, the learned counsel for the petitioners referring to averments in the writ petition, in particular, in para nos.12A to 12, again submits that prayer in respect of Employment Notification No. 02/2016 also subsists, because Employment Notification No. 02/2016 has not been expressly withdrawn. 8. This is the 13th listing of this writ petition.
7. Mr. Pandey Neeraj Rai, the learned counsel for the petitioners referring to averments in the writ petition, in particular, in para nos.12A to 12, again submits that prayer in respect of Employment Notification No. 02/2016 also subsists, because Employment Notification No. 02/2016 has not been expressly withdrawn. 8. This is the 13th listing of this writ petition. The petitioners have filed as many as five affidavits including rejoinder and I.A., still, they have chosen not to challenge Employment Notification No. 03/2016. Once Employment Notification No.03/2016 was published, it must be inferred in law that previous advertisement vide Employment Notice No.02/2016 stands cancelled/withdrawn. Viewed thus, prayer of the petitioners in respect of Employment Notice No.02/2016 has been rendered infructuous and accordingly, such prayers are declined. 9. Insofar as, a direction for absorption/ regularization of the members of the petitioner Sangh as permanent employees of Jharkhand Urja Vikas Nigam Limited is concerned, it is held that this prayer is misconceived. Upon regularization an employee does not automatically become a permanent employee. Moreover, the writ Court cannot issue a direction for absorption/regularization as permanent employee, for it happens on fulfilling certain conditions under the extant rules. Unless, an employee produces evidence before the Court that he has been employed by the employer on a post following the due processes and has been treated for all practical purposes a regular employee no claim for regularisation can be considered. It appears that pursuant to orders passed by this Court a scheme for regularization has been framed by respondent-JUVNL and a process for identifying eligible candidates has commenced. Needless to mention that the directions issued and caution indicated in “Secretary, State of Karnataka vs. Umadevi (3)” reported in (2006) 4 SCC 1 and “State of Jammu and Kashmir and Others vs. District Bar Association, Bandipora” reported in 2017(1) JBCJ 5 (SC) shall be adhered to by the respondent-JUVNL. In brief, it must be kept in mind that regularization is not a protective umbrella for illegal appointments. 10. In the result, the writ petition stands dismissed. 11. Interim Order dated 14.07.2016 stands vacated.