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2021 DIGILAW 455 (JHR)

Sukhdeo Munda, S/o. Late Goma Pahan v. Chief Managing Director, Jharkhand Urja Vikas Nigam Limited

2021-06-21

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2021
JUDGMENT : With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and/or video quality. 2. The instant intra-Court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 01.08.2018 passed by learned Single Judge of this Court in W.P.(S) No. 2420 of 2016 whereby and whereunder the writ petition has been dismissed refusing to issue direction upon the respondents to enact the Rule or formulate statutory schemes for regularization of the writ petitioners in view of the judgment of the Hon'ble Apex Court rendered in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. [ (2006) 4 SCC 1 ] as well as in view of the judgment of this Court in Ramesh Mahto v. State of Jharkhand decided on 31st July, 2012. 3. The brief facts of the case which need to be enumerated herein, read as under :- The Bihar State Electricity Board, Patna through its Director (Personnel), has issued office order being Office Order No. 3935/FB Patna dated 29.09.1984 by which the post of Headmaster and Assistant Teachers were created in Subernrekha Hydel Power Project Middle School, Sikidiri, Ranchi. Later on, one another office order No.4537, dated 09.07.1991 was issued by which sanction has been accorded for up-gradation of Board's Middle School, Subernrekha Hydel Power Project, Sikidiri, Ranchi into High School in which one post of Head Master and 10 posts of Assistant Teacher were sanctioned for High School, Subernrekha Hydel Power Project, Sikidiri, Ranchi. The General Manager-cum-Chief Engineer, Swarnrekha Hydel Power Project, Sikidiri has issued a letter on 24.01.2003 addressed to the Chairman Jharkhand State Electricity Board, Ranchi, as it then was, requesting for giving sympathetic consideration on the request of Teachers and acting thereupon, the Secretary, Jharkhand State Electricity Board wrote a letter to the Project Manager, Swarnrekha Hydel Power Project, Sikidiri whereby the teachers who were proposed to be engaged on contractual basis as per decision taken, were called for vide letter No.422 dated 05.02.2002. In pursuance of the above said letter, the Project Manager, Swarnrekha Hydel Power Project, Sikidiri, Ranchi wrote a letter to the Secretary, Jharkhand State Electricity Board, Engineering Bhawan, Dhurwa, Ranchi and a list containing the names of person looking after the teaching work since long, was sent for sympathetic consideration and needful action. In pursuance of the above said letter, the Project Manager, Swarnrekha Hydel Power Project, Sikidiri, Ranchi wrote a letter to the Secretary, Jharkhand State Electricity Board, Engineering Bhawan, Dhurwa, Ranchi and a list containing the names of person looking after the teaching work since long, was sent for sympathetic consideration and needful action. The writ petitioners, after waiting for considerable period, when their grievance for regularization in service was not redressed even though the Hon'ble Apex Court pronounced a judgment in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) and this Court in Ramesh Mahto v. State of Jharkhand (Supra), filed a writ petition before this Court seeking appropriate direction for their regularization in service in terms of ratio laid down in the aforesaid judgments. The respondents had appeared and contested the case by taking the plea that the case of the writ petitioners are not coming under the fold of either the judgments rendered by Hon'ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) of this Court in Ramesh Mahto v. State of Jharkhand (Supra). It has been contended that the writ petitioners are working on the fixed honorarium/Mandey and not as permanent employees under the respondent-authorities and further, they were not engaged by following due procedure of regular and contractual appointment and also as there is no sanctioned post of teachers and therefore, question of vacant post of Assistant Teachers does not arise. It has been contended that the petitioners since are working as teachers that too on contractual basis, there is no question of applicability of judgment rendered by Hon'ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra). The learned Single Judge, after taking into consideration the rival submissions advanced on their behalf and considering the nature of appointment of the petitioners, has dismissed the writ petition against which the present intra-court appeal has been filed. 4. Mr. Anil Kumar Sinha, learned counsel appearing for the writ petitioners/appellants, has submitted that learned Single Judge has not appreciated the fact about applicability of the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. 4. Mr. Anil Kumar Sinha, learned counsel appearing for the writ petitioners/appellants, has submitted that learned Single Judge has not appreciated the fact about applicability of the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) and even the judgment in Ramesh Mahto v. State of Jharkhand (Supra) passed by this Court and straightaway considered the nature of appointment and dismissed the writ petition and, therefore, the order passed by learned Single Judge is not proper and the same is fit to be quashed and set aside. 5. Per contra, Mrs. Darshana Poddar Mishra, learned Additional Advocate General appearing for the respondent State of Jharkhand and Mr. Sachin Kumar, learned counsel appearing for the respondent JUVNL, have jointly submitted that the petitioners have failed to make out a case before the learned Single Judge since the writ petitioners are working on contractual basis on a fixed Honorarium / Mandey as teachers and, therefore, the learned Single Judge has considered the fact that since they were appointed on contractual basis hence there is no question of regularizing them in the regular establishment. It has further been submitted that although the learned Single Judge has not considered the applicability of the judgment rendered by the Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) and the judgment rendered by this Court in Ramesh Mahto v. State of Jharkhand (Supra), but both the judgments are not applicable in the facts of this case as the judgment rendered by the Hon’ble Apex Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) only speaks about regularization of ad hoc employees i.e. Class IV employees, and does not pertain to regularization of teachers but herein, the petitioners are working as teachers that too on contract basis, therefore, the case of the petitioners are not coming under the fold of the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra), similarly it is also not coming under the fold of the judgment rendered by this Court in Ramesh Mahto v. State of Jharkhand (Supra) taking into consideration the nature of appointment. v. Umadevi & Ors. (Supra), similarly it is also not coming under the fold of the judgment rendered by this Court in Ramesh Mahto v. State of Jharkhand (Supra) taking into consideration the nature of appointment. According to them, taking into consideration this aspect of the matter, the order passed by the learned Single Judge may not be interfered with and accordingly the appeal may be dismissed. 6. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. 7. The admitted fact herein is that the writ petitioners/appellants are claiming to be working as teachers on contract basis on a fixed Honorarium / Mandey. Their claim is based upon the fact that they are working since long and, therefore, their services are fit to be regularized and to that effect certain recommendations have been made by the respondents. The plea of the learned counsel appearing for the writ petitioners/appellants that in view of the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) and Ramesh Mahto v. State of Jharkhand (Supra), their services are fit to be regularized but the learned Single Judge has failed to appreciate this aspect of the matter and, therefore, this Court before proceeding to look into the legality and propriety of the impugned order, deems it fit and proper to scrutinize about the applicability of the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) in the given facts of the case. 8. This Court has appreciated the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) wherefrom it is evident, more particularly from paragraph 53 thereof, that the Constitution Bench of Hon’ble Apex Court has carved out exception for regularizing such persons who are working as ad hoc employees under the category of Class IV regularly for a period of ten years without the support of any interim order passed by any court of law against the sanctioned post, then by way of one time exercise their services, if required, be regularized by the State Government, paragraph 53 thereof reads as hereunder :- "53. One aspect needs to be clarified. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ (1967) 1 SCR 128 : AIR 1967 SC 1071 ], R.N. Nanjundappa [ (1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [ (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” The judgment rendered by this Court in Ramesh Mahto v. State of Jharkhand (Supra) there also the case pertains not to the contractual employees. It would be evident from the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) wherein the issue decided by the Constitution Bench is about regularization of Class IV ad hoc employees. It does not lay down any proposition for regularization of contractual employees that too the teachers and, therefore, according to our considered view, the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) wherein the issue decided by the Constitution Bench is about regularization of Class IV ad hoc employees. It does not lay down any proposition for regularization of contractual employees that too the teachers and, therefore, according to our considered view, the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) is not at all applicable in the facts of the given case. Further, the judgment rendered in Ramesh Mahto v. State of Jharkhand (Supra) is also not applicable on the facts of this case. 9. This Court now proceeds to examine the validity of the order passed by the learned Single Judge wherefrom it is evident that the learned Single Judge has considered the fact that the writ petitioners are working as teachers on fixed Honorarium / Mandey and not as permanent employees of the respondents and further, they have not been engaged following the due procedure as also there is no sanctioned post of teachers. Admittedly, since the petitioners are working as teachers on contract basis and their very claim for regularization is based upon the judgment rendered by Hon’ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra), but as we have already expressed our view on the basis of the comparative assessment of the factual aspect of this case vis-à-vis the issue involved in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra), according to our considered view the judgment relied upon by the learned counsel for the writ petitioners/appellants is not applicable. 10. Mr. Anil Kumar Sinha, learned counsel for the writ petitioners/appellants, at this juncture, has also relied upon one judgment rendered by Hon’ble Apex Court in Narendra Kumar Tiwari v. State of Jharkhand & Ors. [ (2018) 8 SCC 238 ] but we, after going across the aforesaid judgment, are of the view that no different proposition has been laid down in this case rather this judgment is clarificatory in nature clarifying the period of ten years to be counted from a fit date as has been directed by Hon'ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) under paragraph 53 thereof. v. Umadevi & Ors. (Supra) under paragraph 53 thereof. The clarification has been issued by Hon'ble Apex Court in the facts and circumstances of the case that since the Hon'ble Apex Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra) has directed the State Government to initiate a proceeding for regularization to be completed within six months to such employees who have rendered ten years of service as on the date of delivery of judgment which was delivered in the month of April, 2006, however, since State of Jharkhand has been created on 15.11.2000, therefore, the issue arose that when the State of Jharkhand itself has been created on 15.11.2000 then how the judgment rendered by Hon'ble Apex Court on 10th April, 2006 will help the employees working in ad hoc capacity by taking the decision for regularizing them and in that pretext the clarification has been given by the Hon'ble Apex Court that in the case of State of Jharkhand, since it has been created on 15.11.2000, the period of ten years will be counted from 15.11.2000 and thereby modifying the cutoff date of completion of period of ten years as has been directed by Hon'ble Apex Court in the month of April, 2006. Since judgment rendered by Hon'ble Apex Court in Narendra Kumar Tiwari v. State of Jharkhand & Ors. (Supra) is on different context rather in the same context in which the judgment has been pronounced by the Constitution Bench of Hon'ble Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (Supra), therefore, there would be no question of applicability of the judgment rendered by Hon'ble Apex Court in Narendra Kumar Tiwari v. State of Jharkhand & Ors. (Supra). 11. This Court, after taking into consideration the facts in entirety and considering the reason assigned by the learned Single Judge in the impugned order, is of the view that no interference is required as there is no error in the impugned order. 12. Accordingly, the instant appeal fails and is dismissed.