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2018 DIGILAW 2707 (JHR)

Kanse Ansari v. State Of Jharkhand

2018-12-10

S.N.PATHAK

body2018
JUDGMENT S. N. Pathak, J. - The petitioner has approached this Court with a prayer for quashing the order dated 17.08.2017 passed by Deputy Commissioner, Sahebganj in Misc. Case No.03/2016-17 (Annexure-6). Further prayer has been made for regularization of the services of the petitioner to the post of Mahal Choukidar. 2. The case of the petitioner lies in a narrow compass. The petitioner was engaged as Awaji Choukidar against the vacancy arising out of death of regular Choukidar, who died living behind no legal heir or representative and the petitioner was working on the said post since January, 1989 in Beat No.6 of Borio Police Station in the District of Sahebganj. At the time of engagement, the petitioner was given assurance for regularization of his services but even after 29 years of services, neither his services has been regularized nor any remuneration has been paid to him. 3. Earlier, the petitioner had approached this Court, by filing W.P.(S) No. 3618 of 2015, which was disposed of vide order dated 29th March, 2016 with a direction to the respondents for consideration of his case for regularization, if a fresh representation is filed by the petitioner. In compliance thereof, the Deputy Commissioner disposed of the representation of the petitioner vide impugned order dated 17.08.2017, observing therein that no case is made out for regularization as the petitioner is neither the legal heir nor is continuing on the said post, by way of any public advertisement and as such, case of the petitioner cannot be considered and the said rejection order is subject matter of this writ petition. 4. Mr. Sarju Prasad, learned counsel for the petitioner submits that as the petitioner is working since last 29 years, he is entitled for consideration of his case for regularization. As he is continuing on the said post for last 29 years, a direction be given to the respondents for consideration of his case for regularization and prays for quashing the impugned order dated 17.08.2017 as the same is illegal and arbitrary and not tenable in the eyes of law. 5. On the other hand, no counter-affidavit has been filed. However, Mr. Sameer Sahai, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that no case is made out for regularization. 5. On the other hand, no counter-affidavit has been filed. However, Mr. Sameer Sahai, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that no case is made out for regularization. Earlier also the petitioner had approached this Court for regularization, but his case was turned down by the Deputy Commissioner. Justifying the impugned order, learned counsel submits that these type of persons cannot be regularized as they are working without any public advertisement and without any remuneration and also petitioner was not working against the sanctioned and vacant post and as such, the Deputy Commissioner has rightly rejected the case of the petitioner. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no case is made out for regularization. The petitioner was not working against the sanctioned and vacant post that too without any public advertisement and as such, his appointment is not tenable in the eyes of law. Neither any appointment letter has been brought on record nor it has been shown that there was any public advertisement for appointment to the said post. Any appointment in compete violation of constitutional mandates, without any public advertisement is null and void in the eyes of law. The petitioner was not legal heir of earlier Choukidar and he cannot be appointed as Awaji Choukidar as he claimed. Nothing has been shown as to whether the petitioner is still working or not and in such circumstances, no order of regularization can be passed. The law is well settled regarding appointment of Choukidar, the issue fell for consideration before the Hon''ble Apex Court in case Surendra Paswan Vs. State of Bihar reported in , (2010) 6 SCC 680 and after considering all the aspect of the matter, the Hon''ble Apex Court has held that no order can be passed for regularization even if the petitioners are working since long period, but the respondents were directed to consider their cases, by floating an advertisement for regular appointment. This Court has also passed an order with a specific direction for consideration of the case of Choukidars, by way of a public advertisement, but nothing has been done till date, despite clear cut direction of the Court on the issue. Surprisingly, the State is indifferent to the direction of the Courts. This Court has also passed an order with a specific direction for consideration of the case of Choukidars, by way of a public advertisement, but nothing has been done till date, despite clear cut direction of the Court on the issue. Surprisingly, the State is indifferent to the direction of the Courts. In such circumstances, I hereby direct the respondent-State particularly, Chief Secretary of the State for directing all the Deputy Commissioners of the State to come out with public advertisement for appointment to the post of Choukidars, in accordance with law. If the petitioner along with other similarly situated persons apply for the same, appropriate age relaxation may be given in view of the specific directions and orders of Hon''ble Apex Court in case of Surendra Paswan (supra). 7. Needless to say, if the petitioner comes within the zone of consideration for appointment to the post of Choukidar pursuant to fresh public advertisement, appointment letter in his favour may be issued, in accordance with law. 8. With the aforesaid observations and directions, instant writ petition stands disposed of.