Nirmal Dhodray Aged 40 Years vs The State Of Jharkhand
2021 Latest Caselaw 443 Jhar

                                 1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(S) No. 2409 of 2019
   1. Nirmal Dhodray aged 40 years, son of late Asaf Dodrai, resident of
   village Dudri, P.O. Murhu, P.S. Murhu, District-Khunti
   2. Ajay Kumar Kerketa, aged 41 years, son of Benedict Kerketa,
   resident of Prem Nagar, Hesag Road No. 2, P.O. and P.S. Hatia, District
   Ranchi
   3. Sumitra Kumari Manki, aged 51 year, daughter of Juran Singh
   Manki, resident of Burhadih, P.O. Maranghada, P.S. Khunti, District-
   Khunti
   4. Bimla Purti, aged 35 years, son of          Sri Mathura Singh Munda,
   resident of village Kundi Angara, P.O. and P.S. Angara, District Khunti
   5. Akhileshwar Bhagat, aged 42 years, son of late Jamma Bhagat,
   resident of Harri, P.O. Shivnathpur, P.S. Sisai, District Gumla
   6. Prabhu Bakhla, aged 47 years, son of late Budhwa Bakhla, resident
   of village Kachabari, P.O. Bimgaon, P.S. Karra, District-Khunti
   7. Pradip Kumar Soreng, aged 40 years, son of Tobiyas Soreng,
   resident of village Rampur Chorbindha, P.O. Rampur, P.S. Gumla,
   District-Gumla
   8. Ram Prasad Minz, aged 40 years, son of Shri Birendra Minz, resident
   of village Bijupara, P.O. Tangar, P.S. Chanho, District- Ranchi
   9. Manoj Kumar Kachhap, aged 40 years, son of Shri Jagannath Ganju,
   resident of village Hutupdag, P.O. and P.S. Khunti, District-Khunti
   10. Akhileshwar Kumar, aged about 41 years, son of Parshan Sahu,
   resident of village Raikera, P.O. Marcha, P.S. Rania, District Khunti
   11. Binod Khess, aged about 42 years, son of Shri Ignatius Khess,
   resident of Kokar, Lichi Bagan, P.O. Kokar, P.S. Sadar, District-Ranchi
   12. Krishna Murari Mishra, aged about 45 years, son of Jagannath
   Mishra, resident of Sulmi, P.O. Lupung, P.S. Katkamsandi, District-
   Hazaribagh
                                                ...... Petitioners
                          Versus
1.The State of Jharkhand
2.The Principal Secretary, Rural Development Department, Government of
Jharkhand, Ranchi
3.The Commissioner, Mahatma Gandhi Rural Employment Guarantee
Adhiniyam (MNGREGA), Ranchi
 4.The Deputy Commissioner-cum-District Programme Coordinator, Khunti
5. The Block Development Officer, Khunti
                                                 ...... Respondents

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners :- Mr. Anil Kumar Sinha, Sr. Advocate Mr. Abhishek Sinha, Advocate For Resp.-State :- Mr. Ashok Kumar Yadav, G.A.-I 6/Dated:-01.02.2021

Heard Mr. Anil Kumar Sinha, the learned Senior counsel

assisted by Mr. Abhishek Sinha, the learned vice counsel appearing for the

petitioners and Mr. Ashok Kumar Yadav, 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/absorb the service of the petitioners on the

post of Gram Rojgar Sewak under MGNREGA Scheme.

4. The petitioners were working on the post of Gram Rojgar Sewak.

Pursuant to Advertisement published in the newspaper by which the

application for appointment on the post of Gram Rojgar Sewak was

called for on consolidated amount, the petitioners have applied. Having

the requisite qualification in terms of advertisement as contained in

Annexure-1, the petitioners were selected for the post of Gram Rojgar

Sewak. Thereafter, the petitioners were sent for training by the

respondents in the year, 2008. After completion of training, the

petitioners were appointed on the post of Gram Rojgar Sewak in

different dates in different Blocks i.e. Khunti, Murhu and Ranchi. The

petitioners have completed ten years of service on the post of Gram

Rojgar Sewak. The petitioners have filed the representation in view of

Annexure-4 series 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. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), 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 (3) 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 (3). 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 (3) has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Umadevi (3) 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 5 W.P.(S) No. 5600 of 2019 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 (3). Thus, the time has come to stop the situation where Umadevi (3) 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 (3) 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 (3)."

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

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. Ashok Kumar Yadav, 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. I.A., if any, stands disposed of.

(Sanjay Kumar Dwivedi, J.) Satyarthi/-