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2020 DIGILAW 768 (JHR)

Triveni Mahto v. State of Jharkhand

2020-08-11

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred for a direction upon the respondent authorities to regularize the services of the petitioners-daily wagers in the light of the Jharkhand Government Service Regularization Rules, 2015 (hereinafter referred to as “Rule”) issued by the Personnel and Administrative Department, Government of Jharkhand vide notification no.1348 dated 13.02.2015, to regularize the daily wagers who are continuously working for more than 10 years. 3. The case of the petitioners is that the petitioner no.1 was employed on daily wages in the Department of Forest, Government of Jharkhand from 1984 till date to which he is having a certificate. Similarly, Petitioner no.2 was also employed in the said department from 1982 to 1998. Likewise petitioner no.3 was also working on daily wages from 24.01.1984 till date. Further case of the petitioners is that they were working continuously on daily wages for more than 10 years and have served the department at various posts as required by the said department. Thereafter, in the year 2015, a notification no.1348 dated 13.02.2015 was issued by the Personnel and Administrative Department, Government of Jharkhand and it has been prescribed in the said notification at clause 3 sub clause Ka(i) that a minimum of 10 years of continuous service is required for consideration of daily wagers for their regularization. Pursuant to the said notification, the office of respondent no.3 vide its letter no.1283 dated 20.04.2015, issued instructions for necessary formalities. Further case of the petitioners is that though they are working for more than 10 years, they have not been regularized pursuant to the notification issued by the Government of Jharkhand for which they are entitled. 4. A supplementary counter affidavit has also been filed in this case, wherein at paragraph no.8, it has been stated that the petitioners have not fulfilled the basic criteria for regularization of their service as per the “Rule”. They have not been appointed against any sanctioned and vacant post. The same thing has been reiterated in paragraph no.16 of the said supplementary counter affidavit wherein it has been stated that the engagement/appointment of the petitioners were not irregularly rather it was illegal as the engagement of the petitioners were not made against any sanctioned post and at the time of appointment no procedure has been followed like public advertisements etc., which amounts to back door entry. The state has relied upon a judgment of the Hon’ble Apex Court in the case of Narendra Kumar Tiwari Vs. State of Jharkhand passed in Civil Appeal Nos.7423-7429 of 2018 arising out of S.L.P (Civil) Nos.19832-19838 of 2017, which has been annexed as Annexure-C to the supplementary counter affidavit wherein the Hon’ble Apex Court has stated as under :- “11. Under the circumstances, we are of the view that the Regularization Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularization Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct etc.” 5. Learned senior counsel for the petitioners submits that the only ground for not regularizing the services of the petitioners is that there were no sanctioned post and as such, the State has considered their appointment as illegal. He further submits that it is quite natural that since they were appointed on daily wages as such, there was no question of public advertisement etc. He relied upon the same judgment which has been relied upon by the State and submits that the Hon’ble Apex Court in its judgment has categorically stated that if the petitioners have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct etc. He further contended that the Hon’ble Apex Court in the said judgment has elaborated the grounds for valid objection and non-sanctioned post cannot be the ground for valid objection. He further relied upon a judgment passed in the case of Dineshwar Prasad Yadav versus State of Jharkhand reported in 2016 SCC Online Jhar 2852 wherein the Co-ordinate Bench of this Court has decided the issue in favour of the daily wager employee. He further relied upon a judgment passed in the case of Dineshwar Prasad Yadav versus State of Jharkhand reported in 2016 SCC Online Jhar 2852 wherein the Co-ordinate Bench of this Court has decided the issue in favour of the daily wager employee. Relying upon the aforesaid judgments, learned senior counsel prayed that the case of the petitioners should be considered in the light of the Hon’ble Supreme Court judgment which has been relied upon by the State itself and since there is no case of misconduct and also it is not a case of the State that the petitioners are not eligible for the said post, the respondents may be directed to consider the case of the petitioners for regularization. 6. Learned counsel for the State vehemently opposed the prayer of the petitioners and submits that the petitioners have not fulfilled the basic criteria of their regularization of their service as per the “Rule” since they have not been appointed regularly rather they have been engaged on daily wages as per the need of that time. He further submits that in light of the decisions passed in the case of Secretary, State of Karnataka Vs. Umadevi (3) and others reported in (2006)4 SCC 1 and State of Karnataka & Ors. Vs. M.L.Kesari & Ors. reported in (2010)9 SCC 247 , a notification was issued by the Government of Jharkhand and as per that notification; the petitioners are not eligible to be regularized. He further relied upon the judgment referred to hereinabove i.e. Narendra Kumar Tiwari’s (Supra) and submits that as per the Hon’ble Apex Court there was a direction to the State Government that the Regularization Rule of 2015 should be given pragmatic interpretation. He further contended that since the engagement of the petitioners were not made against any sanctioned post as such, their appointment were illegal and no procedure has been followed by way of public advertisement which means to back door entry. 7. Learned counsel for the respondent no.5 submits that he is not a necessary party and no relief has been sought for against him, as such his name be expunged from the array of respondents. 8. 7. Learned counsel for the respondent no.5 submits that he is not a necessary party and no relief has been sought for against him, as such his name be expunged from the array of respondents. 8. Having heard learned counsel for the parties and after going through the materials available on record especially the judgment passed in the case of Narendra Kumar Tiwari (Supra), wherein the Hon’ble Apex Court has discussed the literal interpretation as well as the intent of the judgments passed by the Hon’ble Apex Court in the case of Umadevi (Supra) and M.L.Kesari (Supra). Paragraphs 8 and 9 of the judgment passed in the case of Narendra Kumar Tiwari (Supra) are quoted herein-below:- “8. The purpose and intent of the decision in Umadevi was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularization and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid. 9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularized since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.” 9. In the aforesaid case the Hon’ble Apex Court has finally decided the case in favour of the daily wager employee and directed that the Regularization Rule must be given a pragmatic interpretation and if the employees have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct etc. 10. In the aforesaid case the Hon’ble Apex Court has finally decided the case in favour of the daily wager employee and directed that the Regularization Rule must be given a pragmatic interpretation and if the employees have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct etc. 10. In the instant case, the only objection which has been taken by the State is that the appointment of the petitioners on daily wages was not advertised and the posts were not sanctioned. In this regard this Court in the case of Dineshwar Prasad Yadav (Supra) wherein at para-4 and 8, a Co-ordinate Bench of this Court has held as under:- “4. Per contra, the learned State counsel submits that any vacancy in the Forest Department has to be first advertised and filled up according to the Recruitment Rules and roster. It is contended that the petitioners who were engaged on daily-wages, as per the need, do not fall under the category of irregularly appointed employees and moreover, they were not employed against a sanctioned vacant post and therefore, they cannot claim benefit under 2015 Rules for regularization of their services” “8 In the present proceeding the respondents have not disputed that the petitioners are eligible for appointment on the posts on which they have been working as daily wagers. The dispute sought to be raised by the respondents is that, the petitioners were not appointed against the sanctioned vacant posts. However, the respondents have not disclosed the number of sanctioned vacant post in each category. Rather, the pleadings in W.P.(S) No.2404 of 2010 (Jharkhand Van Shramik Union, Daltonganj V. The State of Jharkhand), which has been heard along with the present case disclosed that there were more than 2200 sanctioned vacant posts for which Advertisement No.3/14 was issued, however, only one candidate was found eligible for appointment. It shocks the judicial conscience of the Court that after taking work for 31 years and admitting that the petitioners have been paid wages for 26 days for each month, the claim of the petitioners for regularization is sought to be disputed. The respondents have taken a vague plea, not supported by any document, that the petitioners were not appointed against the sanctioned vacant posts. The respondents have taken a vague plea, not supported by any document, that the petitioners were not appointed against the sanctioned vacant posts. The judgment in Umadevi case definitely does not comprehend a situation like this and admittedly, the said judgment does not exclude the petitioners from claiming regularization. If at all posts were not sanctioned, the fact that the respondents continued to take work from the petitioners for about 31 years definitely disclose a need for such posts on which the petitioners are working and now, for the fault on the part of the respondent-State in not sanctioning the posts, the petitioners’ claim for regularization in terms of Notification dated 13.02.2015 cannot be declined. In view of the large number of vacancies existing in the Department, the petitioners’ case must be considered for regularization”. 11. After going through the aforesaid Judgment it clearly transpires that the respondents have taken a vague plea which is not supported by any document, that the petitioners were not appointed against the sanctioned vacant posts. Further, even the posts were not sanctioned, the fact that the respondents continued to take work from the petitioners for so many years continuously clearly transpires the need for such posts on which the petitioners are working and now, for the fault on the part of the respondent-State in not sanctioning the posts, the petitioners’ claim for regularization in terms of Notification dated 13.02.2015 cannot be declined. 12. In view of the aforesaid discussions and the judgments referred to hereinabove, I hereby dispose of the instant writ application by giving direction to the petitioners to file fresh representation individually along with copy of this order before the respondent no.3 with copy to respondent no.2 and the respondent authorities are directed to consider the claim of each petitioner separately for regularization in accordance with the Rule and in the light of the judgment passed by the Hon’ble Apex Court in the matter of Narendra Kumar Tiwari (Supra) and also the Order passed by this Court in the case of Dineshwar Prasad Yadav (Supra). 13. With the aforesaid observation and directions the instant application is allowed and disposed of.