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2018 DIGILAW 1940 (JHR)

Suresh Kumar Tiwary v. State Of Jharkhand

2018-08-24

PRAMATH PATNAIK

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JUDGMENT Pramath Patnaik, J. - In the captioned writ application, the petitioner has inter alia prayed for direction upon the respondents to regularize the services of the petitioner in the scale of Assistant Teacher w.e.f 01.05.1993 i.e. the date from which the sanctioned post fell vacant; and further prayer has been made for quashing order dated 29.03.2009 passed by Director, Secondary Education whereby the representation of the petitioner for regularization of his services has been rejected. 2. The facts, as delineated in the writ application, in brief is that initially the petitioner was appointed as Teacher in Yogda Satsanga Madhya Vidyalaya on 26.08.1976 and thereafter was appointed in Yogda Satsanga Vidyalaya (High School) on 19.04.1984. It has been averred that one post of Science Teacher fell vacant on and from 01.05.1993 on account of retirement of one Mrs. Indira Majumdar. After retirement of said Mrs. Indira Majumdar, advertisement was published for appointment on the said post, in which, the petitioner participated and was selected. Accordingly, he joined on the said post on 26.05.1999. It has further been averred that the Secretary, Yogda Satsand Vidyalaya vide letter dated 21.10.2000 made a request to the D.E.O that petitioner''s service may be regularized w.e.f 01.05.1993 as the petitioner is working on the sanctioned post since that date. Thereafter, the Secretary of the said school again made request to regularize the services of the petitioner w.e.f 01.05.1993 in the light of resolution taken in the Managing Committee meeting held on 26th June, 2001, but it did not evoke any response. Being aggrieved, the petitioner approached this Court by filing W.P. (S) No. 4818 of 2007, which was disposed of vide order dated 18.02.2008 with liberty to the petitioner to file a fresh representation before the Director, Secondary Education, who shall pass speaking order thereon. With the liberty aforesaid, the petitioner submitted a representation before the Director, Secondary Education but the same was rejected by passing order dated 29.03.2009, which is impugned in the instant writ application. 3. Heard Mr. Vijay Bahadur Singh, learned counsel for the petitioner and Mr. Dhananjay Kumar Dubey, learned Sr. S.C. I for the respondents-State. Notice upon respondent no. 5-Secretary of the school and respondent no. 6 - Principal of the school has been validly served but none appears on behalf of respondent nos. 5 and 6. 4. 3. Heard Mr. Vijay Bahadur Singh, learned counsel for the petitioner and Mr. Dhananjay Kumar Dubey, learned Sr. S.C. I for the respondents-State. Notice upon respondent no. 5-Secretary of the school and respondent no. 6 - Principal of the school has been validly served but none appears on behalf of respondent nos. 5 and 6. 4. Learned counsel for the petitioner submitted that initially the petitioner was appointed on 26.08.1976 as Assistant Teacher in Madhya Vidyalaya; thereafter w.e.f 01.04.1984 in High School and when the vacancy fell after retirement of one Mrs. Indira Majumdar on 30.04.1993, he was appointed on 26.05.1999. It has submitted with vehemence that since the post in question fell vacant from 01.05.1993, the petitioner''s service ought to be regularized from the date the post in question fell vacant. Learned counsel for the petitioner further submitted that while passing the impugned order the respondent no. 2 did not take cognizance of the law laid in C.W.J.C. No. 2829 of 1994 (R), wherein the similarly situated teacher for the same and similar relief approached this Court and the Court after considering all the facts ordered for regularization of service of the petitioner from the date when the post fell vacant. 5. Learned counsel for the petitioner in support of his submission referred to the decision rendered in the case of State of Uttar Pradesh & Ors Vs. Arvind Kumar Srivastava & Ors , (2015) 1 SCC 347 , wherein the Hon''ble Court has held that temporary service followed by substantive appointment is counted or computed for the purpose of qualifying service for pensionary benefits. 6. Learned Senior Standing Counsel I appearing for the respondents-State submits that it is admitted fact that the petitioner was not appointed on 01.05.1993 rather he was appointed on 26.05.1999, hence his services cannot be regularized from an anterior date. So far recommendation made by the management committee regarding the regularization of services w.e.f 01.05.1993 is concerned, it has no leg to stand as the petitioner was appointed on 26.05.1999 and the respondents- authorities after considering all aspects of the matter rejected the claim of the petitioner for regularization of services w.e.f 01.05.1993 vide memo dated 27.09.2005. So far recommendation made by the management committee regarding the regularization of services w.e.f 01.05.1993 is concerned, it has no leg to stand as the petitioner was appointed on 26.05.1999 and the respondents- authorities after considering all aspects of the matter rejected the claim of the petitioner for regularization of services w.e.f 01.05.1993 vide memo dated 27.09.2005. So far parity with another teacher, namely Shardanand Thakur- the petitioner in C.W.J.C. No. 2829 of 1994 (R) is concerned, the petitioner has not brought sufficient material to show similarity with that case, only annexing the order is not sufficient to stake claim for parity of treatment. 7. Having heard learned counsel for the parties at length and on perusal of record, it appears that the petitioner has not been able to make out a case for interference for the following facts and reasons: (i).From perusal of record, it appears that initially the petitioner was appointed on 26.08.1976 as Assistant Teacher in Yogada Satsang Madhya Vidyalaya; thereafter, it is though alleged by the petitioner that he was appointed in the year 1984 in High School, but the respondents raised objection in impugned order stating that his services was not recommended by the competent authority. Be that as it may be, admittedly he was appointed in Yogada Satsang High School, Ranchi on 26.05.1999 after arising of vacancy on retirement of one Mrs. Indira Majumdar on 30.04.1993. (ii).For regularization of his services w.e.f. 01.05.1993, the petitioner time and again submitted representation i.e. on 09.05.2000 and 24.01.2005 but the same stood rejected by the respondents-authorities. (iii).It is admitted proposition of law that mere availability of vacant post and recommendation made by the Management Committee of the school is not sufficient to get the services regularized from the date the post fell vacant rather it is the date of joining which is decisive date for determining the date of regularization. So far question of parity with the case of one Sharda Nand Thakur-petitioner in C.W.J.C No. 2829 of 1994(R) is concerned, he was working since 1976 in the High School itself and the sanction letter was received by the Managing Committee at a very belated date hence the Court orders for regularization from the date when the post became vacant. So far question of parity with the case of one Sharda Nand Thakur-petitioner in C.W.J.C No. 2829 of 1994(R) is concerned, he was working since 1976 in the High School itself and the sanction letter was received by the Managing Committee at a very belated date hence the Court orders for regularization from the date when the post became vacant. Contrary to the said case, the petitioner was appointed on 26.05.1999, in pursuance to the fresh advertisement after creation of vacant post, hence his services cannot be regularized ante dated. (iv).Moreover, from plain reading of impugned order it appears that the respondents-authorities after giving full opportunities to the petitioner passed the impugned order. From perusal of impugned order it appears there is no procedural irregularity and it lacks merit warranting any interference by this Court. 8. As a cumulative effect of the aforesaid facts and reasons, I am of considered view that the impugned does not warrant any interference by this Court and the writ petition is accordingly dismissed, being devoid of any merit.