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2024 DIGILAW 449 (JHR)

Tarique Hussain Khan v. State of Jharkhand

2024-04-26

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mrs. Swati Shalini, learned counsel for the petitioner, Mr. Anuj Burman, learned counsel for the respondent-State and Mr. Ravi Prakash Mishra, learned counsel for the respondent-Jharkhand State Housing Board. 2. This writ petition was filed making prayer to direct the respondents to designate the petitioner as an Upper Division Clerk and to include the name of the petitioner in the seniority list of Upper Division Clerk. I.A. No.111 of 2023 was filed for amendment in the writ petition, which was allowed vide order dated 08.12.2023 and in view of allowing the said I.A., the further prayer is made in this writ petition to direct the respondent-authorities to grant benefit of Time Bound Promotion and the benefits of ACP Scheme to the petitioner right from the date of his appointment i.e. 23.02.1982 and further also the grant of salary of Head Clerk to the petitioner from 24.07.2012 and to modify the order of regularization dated 20.12.2007 to the extent that the regularization should be made to the post of Upper Division Clerk and to extend the consequential post retiral and pensionary benefits to the petitioner as well as payment of arrears of salary. 3. The petitioner was directed to file consolidated amended writ petition, which has been filed and the Jharkhand State Housing Board was called upon to file counter affidavit to the amended writ petition. Pursuant to that, counter affidavit on behalf of the respondent-Jharkhand State Housing Board is also filed. The matter was heard on merit on behalf of both the sides on 19.04.2024 and on that day, due to paucity of time, the judgment was not delivered and, accordingly, the judgment was reserved. 4. Mrs. Swati Shalini, learned counsel for the petitioner submitted that the petitioner was initially appointed as a Caretaker in the then Bihar State Housing Board and was posted at Jamshedpur in the office of Executive Engineer, Jamshedpur. Subsequently vide order dated 10.12.1981, the then Bihar State Housing Board in view of the decision taken by the State Government, merged the posts of Caretaker, Work Sarkar and Rent Collector into the post of Lower Division Clerk. Thereafter, the State of Bihar vide circular dated 20.12.2000 merged the post of Lower Division Clerk and Upper Division Clerk into the post of Clerk and prescribed pay scale of Rs.284-372/-which was admissible for the post of Upper Division Clerk. Thereafter, the State of Bihar vide circular dated 20.12.2000 merged the post of Lower Division Clerk and Upper Division Clerk into the post of Clerk and prescribed pay scale of Rs.284-372/-which was admissible for the post of Upper Division Clerk. She submitted that in view of these two circulars, the petitioner was initially given the scale of Lower Division Clerk and subsequently the scale of Upper Division Clerk, but his name was not included in the seniority list of Upper Division Clerk and the designation of the petitioner was continued as Caretaker. The petitioner filed a representation before the respondent-authorities to designate him as Upper Division Clerk for which the pay scale has already been granted to him. She further submitted that the Secretary, Jharkhand State Housing Board considered the representation of the petitioner and vide letter dated 22.12.2011 recommended for designation of the petitioner as Upper Division Clerk and placed the proposal before the Board's meeting. The meeting of the Board was held on 28.12.2011, wherein, it was resolved that for the purpose of the said exercise, the opinion of the Finance Department may be obtained and the file of the petitioner was forwarded by the Secretary, Jharkhand State Housing Board to the Deputy Secretary, Housing Department, Government of Jharkhand for seeking opinion of the Finance Department. She pointed out that the respondent-authorities deliberately did not forward the service book of the petitioner and, thus, the Deputy Secretary, Housing Department, Government of Jharkhand vide letter dated 06.02.2012 requested the Secretary, Jharkhand State Housing Board to send the service book of the petitioner so that necessary opinion can be sought. She elaborated her argument by way of submitted that there was no occasion for the respondents to seek any opinion from the Finance Department, Government of Jharkhand as re-designation of the petitioner to the post of Upper Division Clerk in no manner will have any financial implication as the petitioner has already been given the benefit of pay scale of Upper Division Clerk. She submitted that since the name of the petitioner was not included in the seniority list of Upper Division Clerk, he is made to suffer. She submitted that since the name of the petitioner was not included in the seniority list of Upper Division Clerk, he is made to suffer. She further submitted that the petitioner has come to learn that the respondents have misplaced the service book of the petitioner and that is why the issue regarding re-designation of the petitioner as Upper Division Clerk has been kept pending and accordingly, the Housing Department has not forwarded the file of the petitioner to the Finance Department. By way of making emphasis, she submitted that other similarly situated persons, who were also designated initially as Lower Division Clerk have been subsequently designated as Upper Division Clerk and are getting the benefits which is apparent from the office order, contained in Annexure-6. She submitted that with regard to Annexures-3, 4 and 5 of the writ petition, the petitioner was directed to file supplementary affidavit disclosing the fact how those documents have been received by the petitioner and that is explained in paragraph no. 23 of the writ petition. By way of referring Annexure-7, she submitted that after retirement of the Head Clerk Mr. Devashish Choudhary, the respondents have given the charge of Head Clerk to the petitioner vide letter dated 23.07.2012 and regular promotion has been kept in abeyance because the office of the Managing Director of Jharkhand State Housing Board was lying vacant. She submitted that the charge of Head Clerk is usually given to the senior most Upper Division Clerk and in view of providing the said charge, it is admitted fact that the petitioner was treated as senior most Upper Division Clerk. She further submitted that vide letter dated 10.12.1981, the post of Caretaker, Work Sarkar and Rent Collector was merged to the post of Lower Division Clerk and in view of that, the petitioner is entitled for regularization to the post of Lower Division Clerk w.e.f. the year 1982 itself when others were regularized, but the respondents deliberately delayed the same and ultimately after repeated representations, regularized the service of the petitioner vide office order dated 20.12.2007, which was given effect to that time and past services of the petitioner has been left over. She submitted that the show-cause issued to the petitioner and after seeing detailed reply of the petitioner, the proceeding was dropped by the Jharkhand State Housing Board. She submitted that the show-cause issued to the petitioner and after seeing detailed reply of the petitioner, the proceeding was dropped by the Jharkhand State Housing Board. By way of referring letter dated 21.01.2012, contained in Annexure-C to the counter affidavit of the Jharkhand State Housing Board, she submitted that the Board of Directors found that the petitioner is entitled for the benefit of his regularization to the post of Lower Division Clerk w.e.f. the year 1982 and upgradation to the post of Upper Division Clerk and in view of that, the opinion from the Finance Department was sought by the Government of Jharkhand. She submitted that even after lapse of almost four years, no such opinion was obtained and the petitioner was compelled to file the writ petition. By way of referring Annexure-9, she submitted that even the Minister Incharge of the Housing Department requested the Managing Director, Jharkhand State Housing Board to look into the grievances of the petitioner and take necessary action and vide letter dated 21.03.2013, the Managing Director of the Jharkhand State Housing Board had requested the Secretary cum Establishment to produce the records regarding grievances of the petitioner, which was verified vide letter dated 30.10.2013, contained in Annexure-11 of the writ petition and it was stated that the petitioner is entitled for time bound promotion and the benefit of ACP scheme and for which service book of the petitioner was sent to the Headquarter for verification and recommendation. She submitted that on the false ground, the petitioner is not provided the benefit and the respondents have considered that previously the petitioner was appointed as Caretaker and, therefore, they are trying to deny the claim of designation of the petitioner as Upper Division Clerk, however, the respondents have lost sight of the fact that the State Government had merged the post of Caretaker, Work Sarkar and Rent Collector into the post of Lower Division Clerk vide office order dated 10.12.1981 and subsequently vide letter dated 20.12.2000, the respondents have merged the post of Lower Division Clerk and Upper Division Clerk and in view of that, arbitrarily the petitioner is not being provided the said benefits and he is being discriminated. She submitted that respondent no.5, Secretary, Department of Finance, Government of Jharkhand has filed an affidavit on 11.12.2018 wherein in paragraph 9 he has specifically stated that no file relating to the petitioner is pending in the Department of Planning cum Finance and, accordingly, the Jharkhand State Housing Board was directed to file supplementary counter affidavit explaining the position and, thereafter, the respondent-State has filed supplementary counter affidavit on 13.06.2019 stating therein that they have sent a reminder vide letter dated 02.05.2019 to the Secretary, Department of Urban Development, Government of Jharkhand for sending the file regarding advice in the matter. The matter was heard on 09.05.2019 and the counsel for the State was directed to ascertain the status of the said letter and they again filed an affidavit stating therein that no such letter has been received, on which, this Court on 26.06.2019 directed the respondent-authorities to file an affidavit and respondent no.2 was directed to remain personally present before the Court on 17.07.2019 and on that day, respondent no.2 did not appear and the matter was adjourned to 07.08.2019 and on that day, formal apology was made and subsequently, they filed I.A. No.6066 of 2019 seeking apology, which was accepted by the Court and the matter was adjourned for 24.09.2019 directing the respondents to file a supplementary counter affidavit and, thereafter, the supplementary counter affidavit has been filed stating therein that there is no need to obtain an opinion of the Finance Department. In these backgrounds, she submitted that if such situation was there that the matter was kept pending for obtaining opinion of the Finance Department, it clearly suggests that there was intention of denying the bonafide benefit of the petitioner on one or another pretext. She submitted that all the Caretakers who were posted along with the petitioner at the relevant time, have been regularized and even the petitioner's service was also regularized and the petitioner was also given the scale of Lower Division Clerk, however, the respondent-authorities have adopted a pick and choose method in not recognizing the post of the petitioner as Lower Division Clerk and continued addressing the petitioner as Caretaker, which post was already abolished. She submitted that similarly situated another person, namely, Braj Nath Rai, who was also appointed along with the petitioner as Caretaker in the Work-charge Establishment, was subsequently after abolition of the post of Caretaker and its merging into the post of Lower Division Clerk, was being recognized as Clerk and the petitioner was being recognized as Caretaker only, which post already stood merged in the post of Lower Division Clerk on 10.12.1981. She submitted that the petitioner started getting the scale of Lower Division Clerk after 10.12.1981 pursuant to Annexure-1 along with other similarly situated Caretakers including Braj Nath Rai. She submitted that other Caretakers have been recognized, however, the petitioner was discriminated. She further submitted that the Executive Engineer, who was the controlling officer of the petitioner, has already recommended for consideration of the reliefs sought for by the petitioner. The Managing Director directed the petitioner to produce documents showing the scale, which was already submitted by the petitioner and all of a sudden, the file of the petitioner has been sent for consideration to the Finance Department, Government of Jharkhand. She submitted that the Board has taken a decision to obtain the opinion of the Finance Department, however, later on they have come out with a stand that there is no need of such opinion. She further submitted that the Board is an autonomous entity and the Department of Planning cum Finance is not expected to render opinion to it. She submitted that on the date of permanent absorption of the petitioner, the post of Caretaker was not there, however, he was absorbed on the post of Caretaker in place of Clerk as the post of Lower Division Clerk and Upper Division Clerk at that time merged to the post of Clerk. She submitted that the cadre of Lower Division Clerk was merged and subsequently on demerger of the existing posts, Clerk was designated as Upper Division Clerk and the petitioner on 10.07.2004 became entitled to be designated as Upper Division Clerk. She submitted that the said Braj Nath Rai was junior to the petitioner and he was also working as Caretaker as daily wager and was given work charge w.e.f. 04.07.1991 and further vide order dated 20.12.2007, he was regularized as Clerk. To buttress this argument, she referred Annexures-14, 14/1 as well as 15. She submitted that the said Braj Nath Rai was junior to the petitioner and he was also working as Caretaker as daily wager and was given work charge w.e.f. 04.07.1991 and further vide order dated 20.12.2007, he was regularized as Clerk. To buttress this argument, she referred Annexures-14, 14/1 as well as 15. She submitted that the petitioner was superannuated on 31.01.2017, however, prior to superannuation, the Executive Engineer of the Housing Board has already recommended for time bound promotion and the benefit of ACP scheme from the date of his appointment i.e. 23.02.1982 and also recommended for grant of salary of the post of Head Clerk to the petitioner from 24.07.2012. On these grounds, she submitted that appropriate direction may kindly be issued. She submitted that since similar situated person, namely, Braj Nath Rai was provided the benefit, the petitioner is also entitled. She relied upon the judgment passed by the Hon'ble Supreme Court in the case of Secretary, Minor Irrigation Department and RDS v. Narendra Kumar Tripathi, reported in (2015) 11 SCC 80 . She referred paragraphs 13.1, 13.2, 13.3, 15 and 17 of the said judgment, which read as under: “13.1.In Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348, it was observed: (SCC pp. 744-45, para 47) (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.” 13.2. In Aghore Nath Dey [State of W.B. v. Aghore Nath Dey, (1993) 3 SCC 371 : 1993 SCC (L&S) 783 : (1993) 24 ATC 932], the above observations were explained as follows: (SCC pp. 382-83, para 25) “25. In Aghore Nath Dey [State of W.B. v. Aghore Nath Dey, (1993) 3 SCC 371 : 1993 SCC (L&S) 783 : (1993) 24 ATC 932], the above observations were explained as follows: (SCC pp. 382-83, para 25) “25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, if the initial appointment is not made by following the procedure laid down by the ‘rules’ and the latter expression ‘till the regularisation of his service in accordance with the rules’. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).” 13.3. In Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25 : 2000 SCC (L&S) 1055 it was observed: (SCC pp. 43-45, paras 15-20) “15. So far as the terminology used in Singla case [O.P. Singla v. Union of India, (1984) 4 SCC 450 : 1984 SCC (L&S) 657], namely, ‘ad hoc’, ‘fortuitous’ and ‘stopgap’, the same is quite familiar in the service jurisprudence. Mr Rao, appearing for the High Court of Delhi however contended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 : 1958 SCR 828 . In Dhingra case [Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 : 1958 SCR 828 ] the Court was examining whether removal of an employee can be held to be penal and whether Article 311(2) of the Constitution can at all be attracted and the Court also observed that certain amount of confusion arises because of the indiscriminate use of the words ‘provisional’, ‘officiating’ and ‘on probation’. We do not think that the concept or meaning given to those terminology in Dhingra case [Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 : 1958 SCR 828 ] will have any application to the case in hand, where the Court is trying to work out an equitable remedy in a manner which will not disentitle an appointee, the benefit of his fairly long period of service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due consultation and/or approval of the High Court. 16. The three terms ‘ad hoc’, ‘stopgap’ and ‘fortuitous’ are in frequent use in service jurisprudence. In the absence of definition of these terms in the Rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression ‘fortuitous’ in Stroud's Judicial Dictionary is ‘accident or fortuitous casualty’. This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairlylong period, then the same cannot be held to be ‘fortuitous’. In Black's Law Dictionary, the expression ‘fortuitous’ means ‘occurring by chance’, ‘a fortuitous event may be highly unfortunate’. It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression ‘ad hoc’ in Black's Law Dictionary, means ‘somethingwhich is formed for a particular purpose’. The expression ‘stopgap’ as per Oxford Dictionary, means ‘a temporary way of dealing with a problem or satisfying a need’. 17. In Oxford Dictionary, the word ‘ad hoc’ means for a particular purpose; specially. In the same dictionary, the word ‘fortuitous’ means happening by accident or chance rather than design. 18. In P.Ramanatha Aiyar's Law Lexicon (2nd Edn.) the word ‘ad hoc’ is described as: ‘For particular purpose. 17. In Oxford Dictionary, the word ‘ad hoc’ means for a particular purpose; specially. In the same dictionary, the word ‘fortuitous’ means happening by accident or chance rather than design. 18. In P.Ramanatha Aiyar's Law Lexicon (2nd Edn.) the word ‘ad hoc’ is described as: ‘For particular purpose. Made, established, acting or concerned with a particular (sic) and or purpose.’ The meaning of word ‘fortuitous event’ is given as ‘an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God’. 19. The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ‘ad hoc’ or ‘stopgap’. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as ‘fortuitous’ in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a ‘stopgap’ arrangement and appointment in the post as ‘ad hoc’ appointment. It is not possible to lay down any straitjacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. It is not possible to lay down any straitjacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre. 20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be ‘stopgap or fortuitous or purely ad hoc’. In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be ‘fortuitous/ad hoc/stopgap’ are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.” 15. The scheme of the working of the Rules in the Department shows that right from 1979, the Department has been making direct recruitment after due selection and by applying the 1979 Rules which Rules have been extended from time to time to subsequent recruitments, services were regularised. Validity of the scheme of these recruitments is not under challenge. In such circumstances, when the Rules provide that such ad hoc appointments have to be regularised and seniority counted from the date of appointment, the writ petitioner could not be deprived of the past service rendered by him from 12-6-1985 till the date of regularisation. It is not a case of appointments made without due selection or without vacancy or without qualification or in violation of the Rules. The larger Bench [Farhat Hussain v. State of U.P., 2004 SCC OnLine All 1289 : (2005) 58 ALR 581] failed to observe that the appointment of the writ petitioner was not dehors the Rules nor was by way of stopgap arrangement. The Rules had the effect of treating the appointment as a regular appointment from initial date of appointment. The larger Bench [Farhat Hussain v. State of U.P., 2004 SCC OnLine All 1289 : (2005) 58 ALR 581] failed to observe that the appointment of the writ petitioner was not dehors the Rules nor was by way of stopgap arrangement. The Rules had the effect of treating the appointment as a regular appointment from initial date of appointment. In these circumstances, the principle laid down in Keshav Chandra Joshi [Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272 : 1993 SCC (L&S) 694 : (1993) 24 ATC 545] was not applicable. It is not a case where service rendered is either fortuitous or against the rules or by way of stopgap arrangement. Applying the principle laid down in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348, the writ petitioner is entitled to count service from 12-6-1985. Moreover, the Department has allowed the benefit of past service to other similarly placed incumbents as observed in the judgment giving rise to the appeal of the Department. 17. We, therefore, direct the State to redetermine the seniority after hearing the affected parties within six months. It is made clear that benefit of re-determination of seniority at this stage will not disturb holding of posts by any incumbent and except for the benefit in pension other benefits to which the writ petitioner may be found entitled will be given only on notional basis.” Relying on the above judgment, learned counsel for the petitioner submitted that the respondent-Jharkhand State Housing Board may kindly be directed to provide security to the petitioner. 5. Learned counsel for the petitioner further submitted that the work charge employees are also entitled for computation of qualifying service and for this argument, she relied upon the judgment passed by the Hon'ble Supreme Court in the case of Prem Singh v. State of Uttar Pradesh and others, reported in (2019) 10 SCC 516 . She referred paragraphs 31, 33 and 36 of the said judgment, which read as under: “31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. She referred paragraphs 31, 33 and 36 of the said judgment, which read as under: “31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment. 33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularisation had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification. 36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)753. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.” Relying on the above judgment, learned counsel for the petitioner submitted that the work charge establishment is not against any particular project and the service of the petitioner is ought to be regularized with effect from the due date. 6. 6. Learned counsel for the petitioner also submitted that if the person has worked for a long time and the authorities are not taking step, appropriate order can be passed by the constitutional Court. She relied upon the judgment passed by the Hon'ble Supreme Court in the case of Yashwant Hari Katakkar v. Union of India and others, reported in (1996) 7 SCC 113 . 7. Mr. Ravi Prakash Mishra, learned A.C. to Mr. Sachin Kumar, appearing for the respondent-Jharkhand State Housing Board submitted that the case of the petitioner is misconceived one. According to him, the petitioner was appointed as Caretaker in the work charge establishment for a particular project. Neither appointment letter is annexed by the petitioner nor the date of appointment is mentioned anywhere in the writ petition. He submitted that the appointment of the petitioner was not against any permanent post. He submitted that the office order dated 10.12.1981, contained in Annexure-1 was in respect of those persons who were regularly appointed against a permanent post after following due procedure and the post of Caretaker was recognized as the post under Lower Division Clerk cadre. He further submitted that the petitioner continued to work as Caretaker under work charge establishment of a particular project and the services of the petitioner was regularized by the Jharkhand State Housing Board on the basis of a decision taken in its 20th meeting held on 08.11.2007. The services of the petitioner were regularized subject to the conditions as mentioned in the letter dated 20.12.2007. The post on which the petitioner and other persons converted into the post of regular establishment and those post were to be abolished on death/retirement of those employees. The said letter further provided that the expenses which the Board would incur pursuant to the decision of regularization will be borne out of the budget head from which regular and permanent employees of the Board were being paid. He further submitted that the services of the petitioner were regularized with effect from the date of the said decision. According to him, in view of circular dated 21.12.1978 of the then State of Bihar, the cadre of Upper Division Clerk and Lower Division Clerk were merged as one cadre called Clerical Cadre. The State of Jharkhand came into existence w.e.f. 15.11.2000. According to him, in view of circular dated 21.12.1978 of the then State of Bihar, the cadre of Upper Division Clerk and Lower Division Clerk were merged as one cadre called Clerical Cadre. The State of Jharkhand came into existence w.e.f. 15.11.2000. The State of Bihar vide circular dated 20.12.2000 again de-merged the Clerical Cadre in Lower Division Clerk and Upper Division Clerk and the decision with regard to de-merger of Lower Division Clerk and Upper Division Clerk was taken by the State of Jharkhand vide circular dated 10.07.2004. The petitioner's services were regularized w.e.f. 20.12.2007 and the State of Jharkhand had already taken the decision to demerge the cadre of the Lower Division Clerk and Upper Division Clerk vide circular dated 10.07.2004. According to him, on the date when the services of the petitioner were regularized against a permanent post in the regular establishment, the cadre of Lower Division Clerk and Upper Division Clerk had already been demerged by the circular of the State of Jharkhand. The post of Caretaker is a post under Lower Division Clerk cadre. He further emphasized by way of submitting that the petitioner being a Caretaker has been rightly designated as Lower Division Clerk. He submitted that the petitioner has not been discriminated with any other employee of the Board. The case of Braj Nath Rai is on different footing. He submitted that no particular date is there of appointment of the petitioner. He submitted that the document with regard to Braj Nath Rai has been annexed, however, no document with regard to the petitioner has been annexed with the writ petition and in view of that, the petitioner is not entitled. According to him, the petitioner has been regularized from the year 2008 and the benefit of ACP scheme has already been granted to the petitioner. The claim of the petitioner for regularization from the back date is not permissible. He submitted that in compliance of the order dated 02.09.2022 passed in W.P.(S) No.861 of 2022, the petitioner filed representation dated 27.02.2022, which was disposed of by the Managing Director of the Jharkhand State Housing Board by passing a reasoned order dated 03.04.2023. The petitioner has been paid retirement benefits such as gratuity, leave encashment, arrears in relation to ACP and 6th Pay Revision and 7th Pay arrears. The petitioner has been paid retirement benefits such as gratuity, leave encashment, arrears in relation to ACP and 6th Pay Revision and 7th Pay arrears. According to him, ACP can be granted only to regularized employees and not to employees including work charge employees. The Screening Committee was constituted to consider the case of the petitioner and other similarly situated employees of the Board and in view of the decision of the Screening Committee, notionally pay fixation was done and the petitioner was found entitled for actual payment of the benefit of the ACP for the period from 20.12.2007 to 31.01.2017. The office order dated 02.02.2018 was modified to the extent vide subsequent office order dated 05.02.2018. He further submitted that in identical situation, the order of the learned Single Judge was reversed by the Division Bench of this Court in L.P.A. No.255 of 2022. On these grounds, he submitted that the case of the petitioner is fit to be rejected. 8. The letter no.1074/A dated 20.02.1982, annexed at Annexure-A/1 of the counter affidavit dated 01.09.2015 filed by the respondent-Jharkhand State Housing Board clearly suggests that the petitioner was appointed as a daily wager vide letter No.2355 dated 15.12.1980 and was given regular appointment from the issuance of the letter dated 20.02.1982, which has been again annexed at Annexure-R/2 in the rejoinder to the counter affidavit filed by the petitioner. Thus, the stand of the respondents with regard to appointment is not tenable. Vide office order No.1669, the service of the petitioner was regularized w.e.f. 20.12.2007 and the post of Caretaker was not in existence on the date of regularization. The document annexed at Annexure-1 dated 10.12.1981 suggests that the post of Caretaker was to be considered in the Lower Division Clerk cadre. Since the petitioner was given regular appointment from the issuance of the letter dated 20.02.1982, the petitioner was already in the Lower Division Clerk cadre. By circular dated 21.12.1978 of the then State of Bihar, the cadre of Upper Division Clerk and Lower Division Clerk were merged as one cadre called Clerical cadre. The State of Jharkhand came into existence w.e.f. 15.11.2000. The State of Bihar vide circular dated 20.12.2000 again demerged the clerical cadre in Lower Division Clerk and Upper Division Clerk. By circular dated 21.12.1978 of the then State of Bihar, the cadre of Upper Division Clerk and Lower Division Clerk were merged as one cadre called Clerical cadre. The State of Jharkhand came into existence w.e.f. 15.11.2000. The State of Bihar vide circular dated 20.12.2000 again demerged the clerical cadre in Lower Division Clerk and Upper Division Clerk. The decision with regard to demerger of Lower Division Clerk and Upper Division Clerk was taken by the State of Jharkhand vide circular dated 10.07.2004, contained in Annexure-E series of the counter affidavit dated 22.02.2024 filed by the respondent-Jharkhand State Housing Board. The circular dated 10.07.2004 suggests that clerical cadre was demerged, however, a saving clause is there as contained in Annexure-E series to the counter affidavit filed by the respondent-Jharkhand State Housing Board dated 22.02.2024. For the sake of brevity, Clauses 3, 4 and 5 read as under: 9. Looking into the above Clause 4, it is crystal clear that the clerks working before issuance of this approval order, shall be considered as Upper Division Clerk and the new appointments shall be made in the post of Lower Division Clerk. Thus, the services of the petitioner ought to have been regularized on the post of Upper Division Clerk vide letter dated 20.12.2007 and not on the post of Caretaker and that post was not in existence at that time. Further, the said circular speaks that new appointment is required to be made on the post of Lower Division Clerk. The petitioner was already working as Lower Division Clerk. 10. How the case of the petitioner has been taken by the Jharkhand State Housing Board is noted in the arguments of the learned counsel for the petitioner. The affidavit of the Government of Jharkhand as well as the further affidavit of the Jharkhand State Housing Board clearly suggest that there was no occasion to send the matter to the Finance Department, however, false affidavit was filed which was considered by earlier orders passed by this Court and apology was accepted later on pursuant to filing of I.A. No. 6066 of 2019. 11. The post of Caretaker, Work Sarkar and Rent Collector was merged to the post of Lower Division Clerk vide letter dated 10.12.1981. The petitioner was already provided the benefit of pay scale of the said cadre. 11. The post of Caretaker, Work Sarkar and Rent Collector was merged to the post of Lower Division Clerk vide letter dated 10.12.1981. The petitioner was already provided the benefit of pay scale of the said cadre. There was no financial implication as pay scale was already provided and in spite of that, on the false pretext, the matter was sent to the Finance Department, Government of Jharkhand. Thus, there is no laches and delay on the part of the petitioner. The petitioner has approached the Court when no decision was taken in spite of the recommendation made by the Executive Officer and other officer. The case of the other similarly situated person, namely, Braj Nath Rai, who was junior to the petitioner and was working as Caretaker on daily wage basis, was given work charge on 04.07.1991 and vide order dated 20.12.2007, he was regularized as Clerk and he was given all the benefits, however, the petitioner was deprived. The document with regard to Braj Nath Rai has been brought on record in the writ petition, contained in Annexures-14 and 14/1. The benefit was provided to the said Braj Nath Rai vide order dated 20.12.2007, whereas, de-merger was in the year 2004 and de-merger of the Lower Division Clerk and Upper Division Clerk further protects the petitioner, who was already working on the post of Upper Division Clerk and thus, it is crystal clear that Braj Nath Rai was provided the said benefit in the year 2007 in spite of de-merger in the year 2004 and the petitioner has been deprived of the same, which cannot be allowed and the same is discriminatory action on the part of the respondent-Jharkhand State Housing Board. 12. The petitioner had filed W.P.(S) No.230 of 2010 for direction upon the respondents to grant benefits of 1st and 2nd ACP to the petitioner and W.P.(S) No.861 of 2022 was filed for direction to the respondents for fixing the salary of the petitioner in the revised 7th Pay scale and for grant of consequential benefits including arrears of salary, DA, gratuity and leave encashment on account of 6th and 7th pay scale. So far as L.P.A. No.255 of 2022 is concerned, which has been relied by the learned counsel for the respondent-Jharkhand State Housing Board, the same is not attracted in the present case as the petitioner was regularized on the post of Caretaker, which was not into existence on the date of regularization. Further, the writ petitioner of that case had approached the writ Court after a decade challenging the order dated 04.01.2008 passed by the Jharkhand State Housing Board and he was regularized in service. The said L.P.A. was allowed on delay and laches on the part of that writ petitioner. The fact of that case is not present in the case of the present petitioner. How the case of the petitioner was treated by the Jharkhand State Housing Board is discussed, hereinabove and thus, the said L.P.A. was allowed on different footing. 13. The petitioner was appointed as a daily wager vide letter No.2355 dated 15.12.1980 and was given regular appointment from the issuance of letter dated 20.02.1982, contained in Annexure-A/1 to the counter affidavit dated 01.09.2015. The Board has already taken a decision to provide the said benefit, however, the matter was alleged to be sent to the Finance Department, Government of Jharkhand and it was kept pending by the respondent-Board, however, later on it was stated that there is no need of taking any opinion from the Finance Department, Government of Jharkhand, which suggests that arbitrarily, the Jharkhand State Housing Board has acted against the petitioner. 14. The petitioner on 10.07.2004 became entitled to be designated as Upper Division Clerk and on the date of permanent absorption of the petitioner, there was no existence of the post of Caretaker after merger of the post of Caretaker to the post of Lower Division Clerk and, thereafter, there was no existence of post of Caretaker. The petitioner was already provided the scale of Upper Division Clerk. Since the petitioner's service has already been regularized, he is entitled for counting of the entire period of service for such benefits and past service of the petitioner cannot be allowed to be not counted for continue in service. 15. Once regularization has been made on vacant post and earlier the petitioner was worked as work charge, the other benefit was required to be provided. 15. Once regularization has been made on vacant post and earlier the petitioner was worked as work charge, the other benefit was required to be provided. There is no whim or reason, not to count the service of work charge period in a case, which has been rendered before regularization and this aspect of the matter has been considered by the Hon'ble Supreme Court in the case of Prem Singh (supra).In view of the judgment of the Hon'ble Supreme Court in the case of Secretary, Minor Irrigation Department (supra), the petitioner could not be deprived of past service rendered by him from 23.02.1982 till the date of regularization. Furthermore, the Jharkhand State Housing Board has already regularized the service of the petitioner w.e.f. 20.12.2007. 16. In view of the above, not to give benefit identical to Braj Nath Rai, who was junior to the petitioner, amounts to discrimination and the petitioner is entitled for the prayers made in the writ petition. 17. Accordingly, the writ petition is allowed. The respondent-Jharkhand State Housing Board is directed to designate the petitioner as an Upper Division Clerk and include the name of the petitioner in the seniority list of Upper Division Clerk and grant benefit of Time Bound Promotion and the benefits of ACP Scheme to the petitioner right from the date of his appointment i.e. 23.02.1982 as well as grant salary of Head Clerk to the petitioner from 24.07.2012 and modify the order of regularization dated 20.12.2007 to the extent that the regularization should be made to the post of Upper Division Clerk and extend the consequential post retiral and pensionary benefits to the petitioner as well as payment of arrears of salary. The respondent-Jharkhand State Housing Board is directed to comply the aforesaid direction within a period of six weeks from the date of receipt/ production of a copy of this order. 18. Accordingly, this writ petition is allowed and disposed of.