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2018 DIGILAW 870 (JHR)

Krishna Kant Dubey v. State Of Jharkhand

2018-04-17

PRAMATH PATNAIK

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JUDGMENT Pramath Patnaik, J. - In the instant writ application, the petitioners have prayed for quashing of order No. 1637 dated 16.06.2008 passed by the respondent No. 2, vide Annexure-11, and further prayer has been made by the petitioners for issuance of writ of mandamus, commanding upon the respondents to consider the case of the petitioners in pursuance to letter No. 244 dated 24.02.1987 and for payment of salary with effect from 01.01.1987 along with other consequential benefits. 2. The present case has got a chequered history and the petitioners have been litigating to establish their rights for more than two decades, since the repeated direction of this Court and Hon''ble Patna High Court, have failed to redress the grievance of the petitioners, the petitioners have filed the present writ application. 3. The grievance, as has been portrayed in the writ application, in a nut shell is that by virtue of the efforts of the villagers, a school in the name and style as Darua High School was opened at Latehar. A Managing Committee was constituted and after construction of the building the said school started imparting education to the students of the locality from the year 1982 and the petitioners were appointed by the Managing Committee as teaching and non-teaching staff of the said school. It has been averred that the petitioners from the date of inception of the school have been rendering their services. During financial year 1986-87, the erstwhile Government of Bihar, in the Department of Education selected the said school with a view to open additional Middle School in tribal areas as is evident from letter No. 244 dated 24.02.1987 vide Annexure-1 to the writ petition. The aforesaid letter would indicate that one post of Headmaster, eight posts of Assistant Teachers, one post of Clerk and two post of Peon were sanctioned by the department. In pursuance to letter dated 11.12.1987 issued by the Director, Secondary Education, Government of Bihar, Patna, the District Education Officer, Palamau furnished a report on 04.03.1988 wherein the name of the petitioners have been included as teaching and non-teaching staffs of the school. In pursuance to letter dated 11.12.1987 issued by the Director, Secondary Education, Government of Bihar, Patna, the District Education Officer, Palamau furnished a report on 04.03.1988 wherein the name of the petitioners have been included as teaching and non-teaching staffs of the school. Being aggrieved by the non-payment of salary, the petitioners agitated the matter before the Hon''ble Patna High Court in C.W.J.C. No. 1620 of 1992 and the said writ petition was disposed of vide order dated 09.03.1994 with observation to the erstwhile State to take final decision in the matter relating to selection of the school in question and also for the appointment of teaching and non-teaching staff, as per Annexure-2 to the writ petition. In pursuance to the aforesaid order, the petitioners approached the concerned authorities to consider their grievances but the case of the petitioners was rejected as per Annexure-3 to the writ petition. Being aggrieved with the order dated 17.11.1994, the petitioners preferred a fresh writ petition, being C.W.J.C No. 1782 of 1995 for quashing the said order and the said writ petition was dismissed by the Hon''ble Patna High Court vide order dated 03.08.1995. Being dissatisfied with the order dated 03.08.1995 passed in C.W.J.C No. 1782 of 1995, the petitioner moved before the Hon''ble Supreme Court in S.L.P. No. 4750 of 1996 which was disposed of setting aside the order dated 03.08.1995 passed by the Hon''ble Patna High Court and the matter was remanded to the Patna High Court for fresh consideration. The matter was heard afresh and vide order dated 07.08.1997 and the writ petition being C.W.J.C. No. 1782 of 1995 was allowed with observation to the erstwhile Government to decide the question relating to take over of the services/approval of services of teaching and non-teaching staff of the school in question against the post created pursuant to letter dated 24.02.1987. While allowing the writ application, the Hon''ble Court has been pleased to observe that if the services of anyone or other teaching and non-teaching employees are approved then it is needless to say that such person is to be paid salary from the due date, as per Annexure-4 to the writ application. Being aggrieved the State of Bihar preferred an appeal, being L.P.A. No. 1426 of 1998 and the same was dismissed vide order dated 12.08.1999. Being aggrieved the State of Bihar preferred an appeal, being L.P.A. No. 1426 of 1998 and the same was dismissed vide order dated 12.08.1999. Thereafter, the State of Bihar preferred S.L.P No. 6880 of 2000 before the Hon''ble Apex Court, which was also dismissed by the Hon''ble Apex Court on 03.11.2000. Instead of complying the order dated 07.08.1997 passed by this Court in C.W.J.C No. 1782 of 1995, memo No. 3283 dated 09.07.2002 was passed declining the regularization of services of the petitioners in the school in question. Again the petitioners being aggrieved by the order dated 09.07.2002 preferred W.P.(S) No. 5650 of 2002 and the said writ petition was disposed of vide order dated 18.07.2007 with direction to pass appropriate order in the matter. In pursuance to the order passed in W.P.(S) No. 5650 of 2002, the respondents have passed the impugned order dated 16.06.2008, whereby the decision has been taken to initiate the process of appointment of teachers by issuing an advertisement and the petitioners will be given preference in appointment by giving relaxation of age, as per Annexure-11 to the writ petition. Being aggrieved and dissatisfied with the impugned order dated 16.06.2008 passed by the respondent No. 2 vide Annnexure-11, the petitioners have been constrained to knock the doors of this Court for redressal of their grievances under Article 226 of the Constitution of India. 4. Learned counsel for the petitioners has strenuously urged that the petitioners have been subjected to hostile discrimination, in so far as regularization of their services are concerned, since the services of the employees of similarly situated taken over schools have been regularized. Learned counsel further submits that the petitioners having requisite qualification have been rendering services in the school in question for more than three decades and despite direction by the Hon''ble Court, the respondents on some pretext or other have brushed aside the rightful claim of the petitioners for regularization or grant of regular scale pay. Learned counsel further submits that the impugned order is the outcome of non-application of mind being violative of Articles 14 and 16 of the Constitution of India. In so far as parity of pay scale is concerned, the learned counsel for the petitioners has referred to the decision of the Hon''ble Apex Court, reported in (2017) 1 SCC 148 : (2016 AIR SCW 5176) (State of Punjab & Ors. In so far as parity of pay scale is concerned, the learned counsel for the petitioners has referred to the decision of the Hon''ble Apex Court, reported in (2017) 1 SCC 148 : (2016 AIR SCW 5176) (State of Punjab & Ors. vs. Jagjit Singh & Ors.) 5. Repudiating the averments made in the writ application, a counter-affidavit has been filed on behalf of the respondent No. 3, wherein it has been submitted that the Government vide letter dated 24.02.1987 sanctioned posts and para 4 of the said letter envisages that the Headmaster and Assistant Teacher would be appointed by the Government according to the departmental rules and process. It has further been submitted that the posts of teachers are of SES rank and post of Headmaster is equivalent to Class II JES which could be appointed only on the basis of the advertisement published by the Jharkhand Public Service Commission. These teachers were appointed by the villagers and the school in question is not a project school or nationalized high school, rather it is Zila school/Government school. It has further been submitted that the teachers were appointed earlier against non-sanctioned posts. It has further been submitted that the order passed vide Annexure-11 has explained the reason, why the petitioners could not be regularized and further it has been stated that the services rendered by the petitioners would be considered by way of giving age relaxation to them in the advertisement. 6. Learned counsel for the State has assiduously submitted that since the petitioners were appointed by the private Managing Committee and the school in question is not a project school or nationalized high school, rather it is Zila school/Government school, the appointment is to be made by the publication of advertisement by J.P.S.C., therefore, the claim of the petitioners for regularization of services has been rightly rejected by the respondents and no illegality has been committed by the respondents in passing the impugned order. 7. 7. After bestowing my anxious consideration to the rivalized submissions and on perusal of the records, this Court is of the considered view that the petitioners-case ought to be considered afresh, in view of following facts and reasons: (I) Admittedly, as has been held by this Court in C.W.J.C No. 1782 of 1995 that the school in question namely Darua High School is a taken over high school and the said writ petition was remitted to the respondents to decide the question relating to taken over/approval of services of teaching and non-teaching staff of the school in question, against the post created pursuant to letter dated 24.02.1987. This Court being conscious of the fact of the uphill task for undergoing selection process afresh in a taken over school, disposed of the matter for consideration of the cases of the petitioners for approval of their services and payment of salary for the period they worked, in W.P.(S) No. 5650 of 2002, vide Annexure-10 to the writ petition. (II) On perusal of the impugned order it is quite evident that the decision has been taken to initiate the process of appointment of teachers by publication of advertisement for teaching and non-teaching staff and the preference would be given to them by relaxation in age. While passing the impugned order, the authorities were perhaps oblivious of the fact that the petitioners have been continuing in the school in question since the date of establishment and inception of the school, subjecting them to regular process of recruitment at this distance of time, would add insult to injury, therefore, subjecting them to the specter of uncertainty and hapless and helpless scenario. Therefore, the case of the petitioners deserves to be considered with empathy and sympathy of course subject to relevant rules and in accordance with law. (III) It would be apposite to refer to the decision of the Hon''ble Apex Court, reported in (2017) 1 SCC 148 : (2016 AIR SCW 5176) (State of Punjab & Ors. vs. Jagjit Singh & Ors.) (supra) wherein in paragraph 42 of the aforesaid judgment, the Hon''ble Apex Court has summarized the principle of equal pay for equal work in an illuminative and exhaustive manner. 8. vs. Jagjit Singh & Ors.) (supra) wherein in paragraph 42 of the aforesaid judgment, the Hon''ble Apex Court has summarized the principle of equal pay for equal work in an illuminative and exhaustive manner. 8. In view of the reasons stated in the foregoing paragraphs and as a logical sequitur to the aforesaid reasons the impugned order No. 1637 dated 16.06.2008 passed by the respondent No. 2, vide Annexure-11, is quashed and set aside and the writ petition is disposed of with direction to the respondents to consider the case of the petitioners afresh for regularization/absorption and for parity of pay scale in the light of the observation made hereinabove and the decision of the Hon''ble Apex Court (supra), and pass an appropriate order in accordance with law within a period of 12 weeks from the date of receipt/communication of the order, and decision taken thereof be communicated to the petitioners within the aforesaid period. 9. With the aforesaid direction, the writ petition stands disposed of.