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2023 DIGILAW 1496 (JHR)

Zafar Shahab v. State of Jharkhand

2023-12-20

RAJESH SHANKAR

body2023
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order as contained in memo No. 652 dated 07.10.2020 (Annexure-12 to the writ petition) whereby the respondent No. 4 has declined the claim of the petitioners for regularization of their services in regular establishment. Further prayer has been made for issuance of direction upon the concerned respondents to regularize the services of the petitioners in regular establishment with all consequential benefits. 2. The brief facts of the case as stated in the present writ petition is that the Science and Technology Department of then Government of Bihar, Patna vide memo No. 1826 dated 26.09.1996, communicated the Accountant General, Bihar regarding the vacant and sanctioned post under various departments in different Government Polytechnics including Government Women’s Polytechnic, Ranchi. Pursuant to the same, an advertisement was floated and the petitioners being eligible participated in the recruitment process and subsequently they were appointed on contract basis under the respondent-Government Polytechnic, Ranchi in the year 1996/1997 on different posts like Programmer, Programmer Assistant, Librarian, Instructor and Lab Assistant. The Lab Assistants were separately employed in Government Women’s Polytechnic, Bokaro. They have been working continuously on vacant and sanctioned posts right from their initial appointments. After bifurcation of the State of Bihar, the Government of Jharkhand also recognized the services of the petitioners and they have been continuously working without any interruption. On 13.06.2006, the Principal, In-Charge of Government Women’s Polytechnic, Ranchi submitted a list of sanctioned and vacant posts available in the said Institute. The Science and Technology Department, Government of Jharkhand extended the employment of the petitioners as well as other teaching and non-teaching staff for the financial year 2007-08 to 2011-12 vide memo No. 2191 dated 22.11.2011. 3. Learned counsel for the petitioners submits that the petitioners have been working on sanctioned vacant post from 1996/1997, however, their services have not yet been regularised. They had earlier preferred a writ petition being W.P. (S) No. 4392/2015 before this Court seeking regularisation of their services which was disposed of vide order dated 06.09.2017 with a direction to the respondent No. 2 to take fresh decision in light of the judgment rendered by the Hon’ble Supreme Court with respect to regularisation of the services of the petitioners. The respondent No. 4 however vide the impugned order as contained in memo No. 652 dated 07.10.2020, rejected the petitioners’ claim for their regularisation in services. Under the said compelling circumstance, they have preferred the present writ petition. 4. At this juncture, learned counsel for the petitioners submits that the present case is squarely covered by the order dated 15.05.2023 passed by a coordinate Bench of this Court in Indu Kumar Choudhary and Others vs. State of Jharkhand and Others, W.P. (S) No. 4104/2020 whereby similar impugned order as contained in memo No. 598 dated 21.09.2020 passed by the respondent No. 4 has been set aside and the respondents have been directed to regularise the services of the said petitioners with all consequential benefits within a time frame. Hence, the present writ petition may also be disposed of in terms with the order dated 15.05.2023 passed in W.P. (S) No. 4104/2020. 5. Mr. Manav Poddar, learned AC to AAG-I appearing on behalf of the respondents, though contests the present writ petition on merit, yet accepts that W.P. (S) No. 4104/2020 involving similar issue as raised in the present writ petition has been allowed by a coordinate Bench of this Court vide order dated 15.05.2023. 6. Since learned counsel for the parties are in agreement with the fact that the issue raised in the present writ petition is squarely covered by the order dated 15.05.2023 passed in W.P. (S) No. 4104/2020, it would be appropriate to quote the relevant part of the said order for the purpose of clarity. “6. Having heard the rival submissions of the parties across the Bar, this Court is of the considered view that the case of the petitioners needs consideration for the following facts and reasons: (I) From perusal of Annexure-6 to the writ petition, it appears that admittedly, the petitioners were appointed and working on sanctioned and vacant post. (II) After the World Bank Funded Scheme came to an end, the petitioners were allowed to work and till today, they are working under the respondents. (III) The petitioners had worked for more than 20 years and now they are at the verge of retirement, if the World Bank Funded Scheme came to an end in the year, 1998 itself, why the respondents have taken work from the petitioners and how they are continuing till date. (III) The petitioners had worked for more than 20 years and now they are at the verge of retirement, if the World Bank Funded Scheme came to an end in the year, 1998 itself, why the respondents have taken work from the petitioners and how they are continuing till date. The respondents were in need of their work and as the respondents have taken work from them for more than 20 years, they are entitled for regularization of their services. (IV) The petitioners have completed ten years’ of service on the date of promulgation of Regularization Rules, 2015. It is binding upon the respondents to give benefits of service rendered by them by regularizing their services. (V) The contractual/temporary employee cannot be left at the mercy of the respondents in view of the constitutional provisions and in view of law laid down in case of Uma Devi vs. State of Karnataka and in case of State of Karnataka and Others vs. M.L. Kesari and Others. (VI) Similar issue fell for consideration before this Court in W.P. (S) No. 6347 of 2018 and Other Analogous cases and this Court vide order dated 22.12.2022, after considering the several judgments of Hon’ble Apex Court has clearly observed, which reads as under: 30. Heard the parties at length. The aforesaid cases have got chequered history. Earlier also the cases were rejected by the respondents on similar grounds particularly that they were not working against the sanctioned posts and without following procedures of law i.e. without any advertisement they had been appointed which is in contravention of Articles 14 of the Constitution of India, which is an integral part of our system and as per settled law that the State action has to be tested on the touch stone of equality, it can be said that the appointment is dehors the constitutional mandate of Articles 14 and 16 of the Constitution of India, is not only irregular but also illegal. The said observation of the State in its impugned orders/action is neither logical nor rational in view of observations of the Hon’ble Apex Court in the case of Narendra Kumar Tiwari vs. State of Jharkhand and Others, (2018) 8 SCC 238 as also in several other cases cited aforesaid. While rejecting case of the petitioners, the respondents-State has failed to appreciate purport of the observations made by the Hon’ble Supreme Court. While rejecting case of the petitioners, the respondents-State has failed to appreciate purport of the observations made by the Hon’ble Supreme Court. From the rejection order it appears that State has failed to appreciate the observations made by the Hon’ble Supreme Court in the case of Narendra Kumar Tiwari (Supra). The action on part of the respondents can be termed to be misconceived as the law has not rightly been appreciated while considering cases of the petitioners. 31. The Hon’ble Apex Court was very much aware that these petitioners working continuously for more than ten years, claiming regularisation on the ground that their initial appointments were never challenged rather they continued to work for several years and many of them are at the verge of retirement and in some of the case they have crossed their age of retirement, which clearly speaks that they were allowed to continue on the said posts because the State was in need of their services. Once the State is in need of services and employees are allowed to continue on the said posts, plea is not with the respondents to come with a finding that their appointments were illegal. Time and again the Hon’ble Apex Court has said that if the appointments are irregular, they can be considered for regularisation. These appointments were never illegal rather by flux of time they ought to have been regularised as their appointments were irregular and not illegal. The respondents ought to have considered the observation of the Hon’ble Apex Court in the case of Narendra Kumar Tiwari vs. State of Jharkhand, (2018) 8 SCC 238 , wherein it has been held thus: “8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in State of Karnataka vs. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753, 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. 9. 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. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. 10. Under the circumstances, we are of the view that the Regularisation 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 Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc. 32. The cases regarding regularisation of the Computer Operators fell for consideration before this Court in Babita Kumari and Others vs. State of Jharkhand and Others, W.P. (S) No. 4682 of 2021 and this Court, disposed of the same after considering celebrated Judgment of the Hon’ble Apex Court in the case of Hargurpratap Singh vs. State of Punjab and Others, (2007) 13 SCC 292 . Relevant paragraph of the said Judgment reads as under: “3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay-scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appoints are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly.” 33. Further, similar view was also taken by the Hon’ble Delhi High Court in case of Narinder Singh Ahuja and Others vs. The Secretary, Ministry of Health and Family Welfare and Others, (2014) 146 DRJ 167 , wherein the Hon’ble Court has held as under: “15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners’ engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to outsource” engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners’ contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the “outsourced” or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners employment is not their replacement with regular appointees, but instead, with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended.” xxx xxx xxx 36. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended.” xxx xxx xxx 36. Considering other aspects of the matter and taking into consideration that the respondents are in need of their services and, therefore, they have been allowed to continue for long years, their cases cannot be turned down and as such a direction was given to take a fresh decision for regularization of their services in view of observations made in the case of Narendra Kumar Tiwari (Supra) and also for extension of their contract period till regular appointments are made. The cases of these petitioners have been turned down without making any reference of the observations of the Hon’ble Apex Court in the case of Narendra Kumar Tiwari (Supra). It was incumbent upon the respondents to consider their cases and come out with a specific observation that all these petitioners cannot be considered for regularization since they are charged of misconduct and other valid objections. From bare perusal of the impugned order the grounds which have been raise are not at all tenable in the eyes of law. The petitioners have completed ten years’ of service on the date of promulgation of regularization rules. It is binding upon the respondents to give benefits of service rendered by them by regularizing their services. In absence of any valid rules, at the time of their appointment, their services cannot be said to be violative of any service rules and termed to be illegal. 37. In the case of Sheo Narain Nagar vs. State of Uttar Pradesh, (2018) 13 SC 432, this factum has clearly been decided. The objective of the Judgment rendered by the Hon’ble Supreme Court in the case of Uma Devi (Supra) has not been followed rather used to defeat the very purpose of regularisation. The contention of the petitioners have not been met with by the respondents and only a formal denial has been made which clearly envisaged that just to frustrate their claim, plea of Article 14 of the Constitution of India has been taken. Regarding sanction of posts and advertisement for appointment, the issue has already been answered by the Hon’ble Apex Court in the case of Nihal Singh and Others vs. State of Punjab and Others, (2013) 14 SCC 65. Regarding sanction of posts and advertisement for appointment, the issue has already been answered by the Hon’ble Apex Court in the case of Nihal Singh and Others vs. State of Punjab and Others, (2013) 14 SCC 65. Para-20 of the said Judgment reads as under: “20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.” Since the appointments are being made to fill-up gap by the outsourcing agency, it can safely be considered that hefty sums of money through the outsourcing agency for performance of the duties is being spent and the Government is undertaking the financial burden for discharge of functioning in case of Computer Data Entry Operators and hence the stand of financial burden on the State Government is not praised rather fit to be turned down and not accepted. xxx xxx xxx 40. In plethora of Judgments, some of them have already been cited hereinabove, the law has been laid down and clear-cut observation has been made for consideration of cases of the petitioners in light of observations made by the Hon’ble Apex Court in the case of Narendra Kumar Tiwari (supra). The State having failed to do so, is hereby directed to consider cases of the petitioners in view of aforesaid view, as expressed in the case of Narendra Kumar Tiwari (supra). 41. Let it be made clear that enough is enough. The State having failed to do so, is hereby directed to consider cases of the petitioners in view of aforesaid view, as expressed in the case of Narendra Kumar Tiwari (supra). 41. Let it be made clear that enough is enough. The directions of the Court have not been taken into consideration by the respondents in right perspective rather the State has failed to appreciate the legal proposition and as such the respondent authorities are directed to examine individual cases taking into consideration the order passed by the Hon’ble Apex Court in the case of Narendra Kumar Tiwari (Supra), particularly paragraph-10 thereof and after examining individual cases, if it is found that there is no any other legal impediments, shall consider their individual cases for regularization in accordance with law and pass an order to that effect within a period of sixteen weeks from the date of receipt/ production of a copy of this order. Needless to say, the employees who have worked for more than ten years and have retired during pendency of the writ petition and their cases were turned down on the aforesaid plea of the respondents, their cases also need to be considered from retrospective dates and if they have rendered for more than ten years of unblemished services, the order of regularization should also be passed in their cases too along with consequential benefits in accordance with law.” 7. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order dated 21.09.2020 is not tenable in the eyes of law and as such, same is hereby quashed and set aside. 8. As a result of quashment of impugned order, the respondents are directed to regularize the services of the petitioners with all consequential benefits, within a period of twelve weeks’ from the date of receipt of a copy of this order. 9. Resultantly, writ petition stands allowed.” 7. Having heard learned counsel for the parties and considering that the issue involved in the present writ petition is squarely covered by the order dated 15.05.2023 passed in W.P. (S) No. 4104/2020, the same is also disposed of in terms with the said order. 8. Accordingly, the impugned order as contained in Memo No. 652 dated 07.10.2020 passed by the respondent No. 4 is hereby quashed and set aside. 8. Accordingly, the impugned order as contained in Memo No. 652 dated 07.10.2020 passed by the respondent No. 4 is hereby quashed and set aside. The respondents are directed to regularise the services of the petitioners with all consequential benefits within a period of twelve weeks from the date of receipt/production of a copy of this order.