Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 503 (JHR)

Mritunjay Singh v. State of Jharkhand

2024-05-14

RAJESH SHANKAR

body2024
JUDGMENT : Rajesh Shankar, J. 1. The present writ petition has been filed for issuance of direction upon the concerned respondent to fix seniority of the petitioners with effect from the date of their joining in service on contract basis. Further prayer has been made for issuance of direction upon the concerned respondent to extend the benefit of Dynamic Assured Career Progression (D.A.C.P.) to the petitioners with effect from the respective dates of their initial appointment on contract basis i.e. from 13.11.2003 to 12.11.2005. The petitioners have also prayed for quashing the letter as contained in memo no.921(3) dt. 28.7.2017, whereby a decision has been taken that the contractual period of services rendered by the doctors initially appointed on contract will not be considered for determining their seniority as well as extending them the benefit of D.A.C.P. and as per the “Health, Medical Education & Family Welfare Department Medical Services Cadre Contract Employees Regularization Rules, 2011”, the appointed employees will be entitled to avail the benefit of seniority and D.A.C.P. with effect from the date of order of regularization. 2. Learned counsel for the petitioners submits that the Government of Jharkhand framed a rule known as “Health, Medical Education & Family Welfare Department Medical Services Cadre Contract Employees Regularization Rules, 2011” (hereinafter to be referred as ‘the Rules, 2011’) for regularization of the doctors who had been working on contract basis since 2003/2005 and the same was issued by the Department of Health, Medical Education & Family Welfare, Government of Jharkhand, Ranchi vide memo no.639(2) dated 12.08.2011. 3. It is further submitted that in view of the said Rules, 2011, the services of the petitioners as well as other doctors and dentists working on contract basis were regularized by the State Government in the pay scale of PB-II 9300-34800 with grade pay of Rs.5400/- vide notification nos.1198(3) & 1199 (3) both dated 18.10.2013. The petitioners filed several representations before the respondent authorities to reckon the period of services rendered by them before regularization for determining their seniority and extending them the benefit of D.A.C.P, however till date the respondents have not considered their grievances. 4. The petitioners filed several representations before the respondent authorities to reckon the period of services rendered by them before regularization for determining their seniority and extending them the benefit of D.A.C.P, however till date the respondents have not considered their grievances. 4. Learned counsel for the petitioners in support of his contention that the respondent authorities are bound to fix the petitioners’ seniority from their initial dates of appointment on contract basis, puts reliance on a judgment rendered by Patna High Court rendered in the case of The Bihar State Electricity Employees Association & Others Vs. The Bihar State Power Holding Company Ltd. & Others (C.W.J.C No. 13542 of 2019). 5. On the contrary, learned counsel for the respondents submits that the petitioners were appointed on contract basis in the State of Jharkhand and thereafter they have been regularized in the light of the Rules, 2011 issued by the Department of Health, Medical Education & Family Welfare, Government of Jharkhand, Ranchi vide memo No.639(2) dated 12.08.2011. It has been clearly mentioned in clause 6(i) of the said Rules that the employees appointed under these rules will be entitled to avail the benefit of seniority with effect from the date of order of regularization. 6. It is further submitted that the petitioners have been regularized vide notification No.1198 (3) dated 18.10.2013 and Clause-22 of the said notification clearly speaks that services of the petitioners rendered on contract basis before issuance of the said notification, will not be considered for any purpose. Hence, the contractual period of the petitioners cannot be considered for any purpose much less for determining the seniority and grant of D.A.C.P on the basis thereof. So far as the petitioners’ representation filed before the respondent authorities is concerned, the same has already been rejected vide letter as contained in memo no.921(3) dated 28.07.2017. 7. It is also submitted that as per rule-28 of the Jharkhand Service Code, 2001, the lien stands only for the post which is permanent in nature on which any government employee is serving on the substantive basis and any employee who has been appointed on contractual basis is not entitled to hold lien of the said post. Moreover, as per rule 41 of the Jharkhand Service Code, 2001 “probationer” means a government servant employed on probation against a substantive vacancy in the cadre of a department. Moreover, as per rule 41 of the Jharkhand Service Code, 2001 “probationer” means a government servant employed on probation against a substantive vacancy in the cadre of a department. Upon completion of probation period and fulfilment of other relevant conditions of the service code, the service of a government servant is confirmed. A person appointed on contractual basis does not get appointment against the substantive vacancy as well as his service is not on probation. As such, his seniority can neither be counted from the date of his contractual appointment nor the contractual period of service can be considered for granting the benefit of D.A.C.P. 8. Heard learned counsel for the parties and perused the materials available on record. 9. The petitioners have primarily prayed for directing the respondent authorities to count the period of services rendered by them on contract basis for determining their seniority and extending them the benefit of D.A.C.P. The said prayer of the petitioners has already been refuted by the respondents vide letter as contained in memo no.921(3) dated 28.07.2017 by relying upon Clause 22 of the notification no.1198(3) dated 18.10.2013 and Clause 6(i) of the Rules, 2011. 10. To appreciate the rival contentions of the learned counsel for the parties, it would be proper to refer Clause 6(i) of Rules, 2011, which reads as under:- ^^bu fu;eksa ds v/khu fu;qDr O;fDr] muds fu;ferhdj.k ds vkns'k dh frfFk ls ofj;rk dk gdnkj gksxk** 11. Further, Clause 22 of notification No.1198(3) dated 18.10.2013 by which the petitioners were regularized, reads thus:- ^^bl vf/klwpuk ds fuxZr gksus dh frfFk ds iwoZ vuqca/k ij dh x;h lsok dh x.kuk uo fu;qDr fpfdRldksa dh lsok ds lkFk fdlh Hkh Á;kstu ds fy, ugha dh tk,xh** 12. Clause 6(i) of Rules, 2011 explicitly provides that the person who has been regularized under the said Rules will be entitled to seniority only from the date of order of regularization. Moreover, clause 22 of the notification dated 18.10.2013 whereby the petitioners have been regularized unambiguously provides that the services rendered by them on contract basis before issuance of the said notification will not be counted for any purpose. 13. The petitioners have not challenged Clause 6(i) of the Rules, 2011 as well as Clause 22 of the notification dated 18.10.2013. Moreover, clause 22 of the notification dated 18.10.2013 whereby the petitioners have been regularized unambiguously provides that the services rendered by them on contract basis before issuance of the said notification will not be counted for any purpose. 13. The petitioners have not challenged Clause 6(i) of the Rules, 2011 as well as Clause 22 of the notification dated 18.10.2013. Otherwise also, it is not permissible for them to challenge Clause 6(i) of the Rules, 2011 as the same was one of the conditions to regularize them and other doctors who were appointed on contract basis and have already taken the benefit of the regularization under the said Rules, 2011. The petitioners cannot be allowed to blow hot and cold at the same breath. They cannot be permitted to challenge the condition of regularization stipulated in the Rules, 2011 being the beneficiary of the same. 14. This Court has perused the judgment rendered by the Patna High Court rendered in the case of Bihar State Electricity Employees Association (Supra.), where the concerned rule of the State Government was that the past services of the employees rendered as ad hoc employees would be counted for providing benefits under the M.A.C.P Scheme, however, the claim of the petitioners of the said case for grant of M.A.C.P was denied on the ground that at the time of regularization, they had given an undertaking that they would not claim any benefit for the period of service spent on contract basis if they were appointed in the time scale of pay of regular post. Under the said circumstance, the Bench held that if the services rendered as an ad hoc employee was counted by the state government for computing the necessary period for A.C.P/M.A.C.P, there was no reason why the period of services rendered by the petitioners on contract without break would not be counted by the company for extending them the benefits of A.C.P/M.A.C.P only on the ground of undertaking having been taken from them at the time of their induction/regularization in service. It was further held that there was no rationale behind subjecting them to different treatment vis-a-vis the other employees. 15. It was further held that there was no rationale behind subjecting them to different treatment vis-a-vis the other employees. 15. In the present case, the petitioners have been regularized by virtue of the Rules, 2011 which specifically provides that the persons who have been regularized under the said Rules will be entitled to avail the benefit of seniority only from the date of the order of regularization. The petitioners have also failed to show before this court that they have been treated differently from any similarly situated person. Thus, the facts and circumstance of the present case is different from the case of The Bihar State Electricity Employees Association (Supra.) and as such the observation made in the said case will not be applicable in the case in hand. 16. The writ petition being devoid of merit is, accordingly, dismissed.