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2021 DIGILAW 86 (JHR)

Gopal Prasad v. State of Jharkhand

2021-01-19

SANJAY KUMAR DWIVEDI

body2021
JUDGMENT : Heard Mr. Anil Kumar Sinha, the learned Senior counsel assisted by Mr. Raunak Sahay, the learned vice counsel appearing for the petitioners and Mr. Suraj Prakash, the learned counsel appearing on behalf of the respondent State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioners have moved before this Court for direction upon the respondents to regularize the service of the petitioners on the post of Block Programme Officer(BPO) in North Chotanagpur Division, Hazaribagh under MGNREGA scheme. 4. The petitioners are working on the post of Block Programme Officer (BPO) on wage basis. Pursuant to the advertisement published in the newspaper by the respondents by which the application for appointment on the post of Block Programme Officer (BPO) was called for on consolidated amount, the petitioners have applied. Having the requisite qualification in terms of the advertisement, the petitioners were called for interview in terms of Annexure-1 on various dates for the post of Block Programme Officer. The petitioners appeared in the interview and by way of common appointment letter, the petitioners were appointed on 08.04.2008 on sanctioned post. The name of the petitioners figure at so.no.1(2), 5(1), 6(1), 11(1), 18(2), 25(1), 34(2), 35(1), 39(1), 40(1), 51(2), 57(1) and 43(1). The petitioners were directed to join on the posts and they made their joining on 20.05.2008, 20.05.2008, 20.05.2008, 20.05.2008, 20.05.2008, 20.05.2008, 16.05.2008, 21.05.2008, 20.05.2008, 21.05.2008, 21.05.2008, 23.05.2008 and 20.05.2008, respectively. The petitioners have completed ten years of service on the post of Block Programme Officer. The petitioners have filed the representation in view of Annexure-4 but no decision has been taken on the representation of the petitioners. 5. Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioners submits that the petitioners have worked for substantial period. He submits that in view of ‘Narendra Kumar Tiwari v. State of Jharkhand’ case, the case of the petitioners is required to be considered by the respondent State. He referred to such judgment and placed paragraph no.8 of the said judgment which is quoted hereinbelow: “8. He submits that in view of ‘Narendra Kumar Tiwari v. State of Jharkhand’ case, the case of the petitioners is required to be considered by the respondent State. He referred to such judgment and placed paragraph no.8 of the said judgment which is quoted hereinbelow: “8. 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 regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. 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.” 6. Mr. Sinha, the learned Senior counsel further submits that the case of the petitioners is also covered in view of the judgment rendered in case of ‘Sheo Narain Nagar and Others v. State of Uttar Pradesh and Others’ ( (2018) 13 SCC 432 ) [Civil Appeal No.18510 of 2017 arising out of SLP (C) No.6183 of 2015] . He submits that the contractual aspect of the matter has been considered in the case of ‘Sheo Narain Nagar’ [supra] at paragraph no.7 of the said judgment. Paragraph no.7 of the said judgment is quoted hereinbelow: ‘7. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily-wage basis, etc. in exploitative forms. This situation was not envisaged by Umadevi . The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Umadevi has been ignored and conveniently overlooked by various State Governments/authorities. in exploitative forms. This situation was not envisaged by Umadevi . The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Umadevi has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Umadevi has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularising the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Articles 14, 16 read with Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits, etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Umadevi. Thus, the time has come to stop the situation where Umadevi can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Umadevi laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible when we consider the pith and substance of true spirit in Umadevi .” 7. Mr. Sinha, the learned Senior counsel further submits that the co-ordinate Bench of this Court in the case of ‘Shankar Kachhap and Others” has also considered this aspect of the matter wherein direction was issued for regularization. This kind of action is not permissible when we consider the pith and substance of true spirit in Umadevi .” 7. Mr. Sinha, the learned Senior counsel further submits that the co-ordinate Bench of this Court in the case of ‘Shankar Kachhap and Others” has also considered this aspect of the matter wherein direction was issued for regularization. He further submits that pursuant to the order of the coordinate Bench ‘Shankar Kachhap’ case, the petitioners’ case of that case has been regularized and in view of this, he submits that the case of the petitioner is fully covered under the said judgment and thus, the Court may issue the mandamus. The appointment letter suggests that the petitioners have been appointed on the sanctioned post [Annexure-2]. 8. Mr. Suraj Prakash, the learned counsel for the respondent State submits that the case of the petitioners can be considered by the competent authority on the basis of the judgment relied by the learned counsel for the petitioners. 9. In view of the above facts and the submission of the learned counsel for the parties, the petitioners are directed to file the fresh representation before the respondent nos.2 and 4 annexing all the credentials on which they are relying including the judgments as referred above within a period of two weeks. 10. If such representation is filed within the aforesaid period, the respondent no.2 and 4 shall consider the case of the petitioners in accordance with the rules, regulations and the guidelines particularly considering the 3 judgments as referred to above within 12 weeks thereafter and will pass the appropriate reasoned order. 11. It goes without saying that if the decision is taken in favour of the petitioners, the benefit of the same shall be provided to the petitioners within 8 weeks further thereafter. 12. With the above observation and direction, the writ petition stands disposed of.