Rajen Baraik, S/o late Harkam Baraik v. State of Jharkhand
2018-05-14
S.N.PATHAK
body2018
DigiLaw.ai
ORDER : The petitioner has approached this Court with a prayer for quashing the order dated 08.11.2016 (Annexure-12), whereby and whereunder, the case of the petitioner for regularization has been rejected in view of policy decision of the State Government dated 13.02.2015. 2. The factual exposition as has been delineated in the writ petition is that the petitioner was appointed as Path Belan Chalak on the daily wages by the Assistant Engineer (Respondent No.5) and the same was approved by the Executive Engineer, Road Construction Department, Singhbhum Division, Chaibasa vide Memo No. 851 dated 12.09.1983. The services of the petitioner was extended from time to time by the Assistant Engineer with the approval of Executive Engineer (Respondent No.4) by issuance of various letters in the years, 1984 and 1985. Thereafter, the petitioner was adjusted against the regular vacancy of the Path Belan Chalak and was regularly being paid the salary/wages by the respondents. In the year, 2004, the State Government come out with a policy decision in which the workers, who had completed 240 days before 01.08.1985, for appointment in regular establishment. Pursuant thereto, the name of the petitioner was sent for consideration and name of the petitioner was placed at Sr. No. 3. Though the case of the petitioner was recommended for regularization but the same was never considered. 3. It is the specific case of the petitioner that he was working on a sanctioned and vacant post without any break in the service and was getting regular wages up to the year, 2008 and thereafter, denied the minimum wages. On 01.09.2011, the petitioner was removed from the services vide letter dated 25.08.2011, which was communicated to the petitioner vide letter dated 29.08.2011 on the ground that his appointment was not in accordance with law rather it was totally illegal appointment as no documents pertaining to his appointment was available in the department. Aggrieved thereby, the petitioner moved before this Court in W.P.(S) No. 6730 of 2011, the same was disposed vide order dated 24.11.2014 with a direction upon the respondents to consider the case of the petitioner in view of the ratio laid down by the Hon’ble Apex Court in the case of State of Karnataka & Ors. Vs.
Aggrieved thereby, the petitioner moved before this Court in W.P.(S) No. 6730 of 2011, the same was disposed vide order dated 24.11.2014 with a direction upon the respondents to consider the case of the petitioner in view of the ratio laid down by the Hon’ble Apex Court in the case of State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in (2006) 4 SCC 1 and further directed the petitioner to give appropriate representation before the competent authority, who was directed to dispose of the representation of the petitioner. 4. Pursuant to the order of this Court, the respondents while disposing the representation of the petitioner, passed a reasoned order dated 24.12.2014 in which it was decided that there is no vacancy of Belan Chalak in the Division, hence, the petitioner cannot be appointed, if vacancies arises in near future, vacancy will arise, he will be given preference. Thereafter, the petitioner again approached this Court for quashing of the aforesaid order dated 24.12.2014 in W.P.(S) No. 6316 of 2015 on the ground that he had worked as a daily-wager for 28 years and thereafter, he was thrown out of services. The said writ petition was disposed of vide order dated 30.08.2016 with a direction upon the respondent No.2 to consider the case of the petitioner for his regularization in service in view of the new Rules framed and notified under Memo No. 1348 dated 13.02.2015. Pursuant to the said order of this Court, the respondents issued impugned letter vide Memo No. 8078 (S) dated 08.11.2016 as contained in Annexure-12 to the writ petition, holding therein that the appointment of the petitioner was not in accordance with law and has been appointed illegally as neither any document is there in the department nor any document is produced by the petitioner before the respondents to show his appointment is done in accordance with law and as such, in view of the illegal appointment, the case of the petitioner for regularization is not considered, which has now been challenged by the petitioner in the present case. 5. Dr. Sarvesh Kumar Verma, learned counsel appearing on behalf of the petitioner strenuously urges that the petitioner had discharged his duties on sanctioned and vacant post as a daily wager.
5. Dr. Sarvesh Kumar Verma, learned counsel appearing on behalf of the petitioner strenuously urges that the petitioner had discharged his duties on sanctioned and vacant post as a daily wager. Learned counsel further argues that petitioner had continuously worked for 28 long years and in view of Rules and Circulars of the State Government that those daily wager workers, who had worked continuously for 240 days, their cases ought to have been considered for regularization, but the same was not considered in case of the petitioner. Learned counsel further argues that State Government ought to have been considered the case of the petitioner in view of its own notification dated 13.02.2015 as it is crystal clear that petitioner had discharged his duties before cut-off date i.e. 10.04.2016 and as such, a direction be given upon the respondents to consider the case of the petitioner for regularization. 6. Per contra, counter-affidavit has been filed. Mr. Abhijit Kumar Singh, learned counsel appearing on behalf of the respondents justifying the impugned order argues that there is no illegality or infirmity in the impugned order of the State. The appointment of the petitioner itself was illegal, no illegal appointment can be considered for regularization in view of the Judgment of Hon’ble Apex Court in case of State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in (2006) 4 SCC 1 . Learned counsel draws the attention of the Court towards paragraph 7 of the counter-affidavit and submits that petitioner has been appointed on the daily wages by the Executive Engineer, Road Construction Department, Road Division, Chaibasa vide letter No. 557 dated 15.03.1984 for the period of 4 months, his services has been further extended till 28.02.1985. Thereafter, his services has never been extended, therefore, his services got automatically terminated after 28.02.1985. Learned counsel further argues that Executive Engineer had no power or authority to appoint the petitioner and appointment of the petitioner was not done on sanctioned and vacant post. Even the regularization policy of the State Government was valid only for a year and as such, when the services of the petitioner itself was terminated in the year, 2011, no case is made out for regularization and this writ petition is liable to be dismissed. 7.
Even the regularization policy of the State Government was valid only for a year and as such, when the services of the petitioner itself was terminated in the year, 2011, no case is made out for regularization and this writ petition is liable to be dismissed. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view no case is made out for interference on the following grounds :- 1. Not a cheat of paper has been brought on record to show the appointment of the petitioner. The petitioner was never appointed on a sanctioned and vacant post. 2. The appointment of the petitioner was illegal appointment as it was done without inviting any applications and without any advertisement. Any appointment without following the Rules, cannot be termed to a legal appointment or even regular appointment. 3. The services of the petitioner was terminated as back as in the year, 2011, the services of the petitioner was never extended after in the year, 1985. The petitioner was not in service, hence no cause of action for regularization of the services of the petitioner. 4. The case of the petitioner did not fall within the ambit of the regularization taking into account the Judgment of the Hon’ble Apex Court in case of State of Karnataka & Ors. Vs. Uma Devi & Ors. (supra). 5. Even the case of the petitioner does not fall for consideration in view of Rule of regularization of the State Government dated 13.02.2015. The Hon’ble Division Bench of this Court in case of Sintu Poddar & Anr. Vs. The State of Jharkhand, reported in 2017 (4) JCR 533 (Jhr) has clearly held that any appointment, which is illegal, cannot be considered for regularization. 8. The Hon’ble Apex Court in para 9 in case of Upendra Singh Vs. State of Bihar, reported in (2018) 3 SCC 682 has held as under:- 9. The law pertaining to regularization has now been authoritatively determined by a Constitution Bench Judgment of this Court in State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC 1 . On the application of law laid down in that case, it is clear that the question of regularization of daily wager appointed contrary to law does not arise.
The law pertaining to regularization has now been authoritatively determined by a Constitution Bench Judgment of this Court in State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC 1 . On the application of law laid down in that case, it is clear that the question of regularization of daily wager appointed contrary to law does not arise. This ratio of the Judgment could not be disputed by the learned counsel for the appellant as well. That is why she continued to plead that the appointment of the appellant was made after following due procedure and in accordance with law. However, that is not borne out from the records. Pertinently, order dated 13.08.2003, vide which the appellant was refused regularization on the aforesaid ground was not even assailed by the appellant at that time. It may be mentioned that in Umadevi Case (supra), the Court left a small window opened for those who were working on ad hoc/daily-wage basis for more than ten years, to regularize them as a one-time measure. However, that was also subject to the condition that they should have been appointed in duly sanctioned post. Further, while counting their ten years’ period, those cases were to be excluded where such persons continued to work under the cover of orders of the Courts or the tribunal. The High Court has, in the impugned judgment, discussed these nuances and has also referred to the judgment in Umadevi case (supra) and held that the benefit of onetime measure suggested in that case could not be extended to the appellant….. 9. The Hon’ble Apex Court in para 43 in case of Ram Sevak Yadav Vs. State of Bihar, reported in 2013 SCC Online Pat 67 has held as under :- ‘43 (A) State of Karnataka V. Umadevi, [ (2006) 4 SCC 1 ] prohibits regularization of daily wage, casual, ad hoc, and temporary appointments, the period of service being irrelevant; (B) An illegal appointment void ab initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.
(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post. (D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.’ 10. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, no interference is warranted in the instant case. Resultantly, the writ petition stands dismissed.