Jharkhand High Court

Surendra Choudhary vs State Of Jharkhand on 23 February, 2021

                                               1                      W.P. (S) No. 4631 of 2017


                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P. (S) No. 4631 of 2017
                  Surendra Choudhary, son of Late Ram Sharan Choudhary, Resident of
                  Sanjay Colony, Sanjay Path, Road No.1, Dimna Road, Mango, P.O. &
                  P.S. Mango, Jamshedpur, District- Singhbhum East ... Petitioner
                                          -Versus-
             1.   State of Jharkhand
             2.   Secretary-cum-Commissioner, Commercial Taxes, Government of
                  Jharkhand, Project Building, P.O. & P.S. Dhurwa, District- Ranchi
             3.   Joint Commissioner, Commercial Taxes (Administration), Jamshedpur
                  Circle, P.O. & P.S. Jamshedpur, District- Singhbhum East
             4.   Deputy Commissioner (Sales Tax) Jamshedpur Circle, P.O. & P.S.
                  Jamshedpur, District- Singhbhum East               ... Respondents
                                            -----

             CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----

             For the Petitioner             : Mr. Rajendra Krishna, Advocate
             For the Respondent-State       : Mr. Shivam Sahay, A.C. to S.C. (Mines)-II
                                            -----

08/23.02.2021. Heard Mr. Rajendra Krishna, learned counsel for the petitioner and

Mr. Shivam Sahay, learned counsel for 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 on merit.

3. The petitioner has preferred this writ petition for quashing of the

order dated 26.04.2017, contained in Annexure-9 of the writ petition,

whereby, the case of the petitioner for regularization in the service has been

rejected. The prayer for grant the benefit of 1 st and 2nd ACP is also made in

the writ petition.

4. An advertisement has been made for the post of Clerk in Commercial

Taxes Department in the erstwhile State of Bihar in the year 1979 and

pursuant to the said advertisement, the petitioner submitted his application

before the Department. The petitioner was called for typing test

examination as well as interview. The interview was held and after following

the due procedure, the petitioner was appointed as a Clerk by the Joint

Commissioner, Darbhanga vide order dated 04.07.1980. The petitioner

joined the service at Darbhanga and started discharging his duty to the

satisfaction of the concerned authorities. The petitioner was transferred

from Darbhanga to Jamshedpur Division vide order dated 16.01.1985. The

petitioner joined at Jamshedpur and discharging his duty with full

satisfaction of the authority concerned. The petitioner qualified the requisite

typing test, which is evident from the letter dated 16.10.1981 issued by the

Joint Commissioner, Commercial Taxes, Darbhanga, whereby,

recommendation to confirm the service of the petitioner was made. The

petitioner has also passed requisite Hindi noting and drafting examination,

which is evident from the letter dated 22.12.1983 written by the Joint

Commissioner, Raj Bhasha Department. The petitioner has also passed the

requisite Accounts examination, which is evident from the letter dated

11.05.1994 issued by the Revenue Department. The petitioner has

completed approximately 33 years of regular service, but no order of

confirmation was passed till the age of superannuation of the petitioner. The

petitioner retired on 31.03.2013 after attaining the age of 60 years. The

petitioner earlier moved before this Court in W.P.(S) No. 6480 of 2012,

which was disposed of vide order dated 11.12.2012 with a direction to

respondent no.2 to take appropriate decision on the representation of the

petitioner in accordance with law, preferably within 60 days and thereafter

make payment of the monetary benefits, if any, found payable the

petitioner. After such order, the case of the petitioner was considered by the

respondents and vide order dated 20.02.2013, the claim of the petitioner

was rejected. The petitioner challenged the order dated 20.02.2013 in W.P.

(S) No. 1437 of 2013, which was allowed vide order dated 13.11.2013 and

the order dated 20.02.2013 was quashed and direction was issued to pass a

fresh order regarding confirmation of the petitioner's service and also

regarding the claim regarding 1st and 2nd ACP maintaining equality with the

case of similarly situated employee, as indicated in that order within six

weeks from the date of receipt/production of a copy of that order. Pursuant

thereto, the department has again considered the case of the petitioner and

vide order dated 02.12.2014, contained in Annexure-10 of the writ petition,

the claim of the petitioner was again rejected. Again, the petitioner has

challenged the order dated 02.12.2014 in W.P. (S) No. 295 of 2015, which

was disposed of vide order dated 26.10.2015 directing the respondents to

consider the case of the petitioner through the procedure evolved and

taking into account the judgment passed by this Court dated 09.09.2015 in

the case of Manoj Kumar Sinha v. State of Jharkhand & others , in

batch of writ petitions led by W.P.(S) No.259 of 2013. It was also

observed in that order that the operation of the impugned order would not

come into the way of the respondents in subjecting the case of the

petitioner also for such exercise through the duly constituted committee and

that writ petition was disposed of in terms of the order dated 09.09.2015

passed in the case of Manoj Kumar Sinha (supra). Pursuant thereto, the

case of the petitioner was again considered and the claim of the petitioner

was again rejected vide order dated 26.04.2017, contained in Annexure-9 of

this writ petition. Aggrieved with this order, the petitioner has again

approached this Court by way of filing the present writ petition.

5. Mr. Rajendra Krishna, learned counsel for the petitioner assailed the

impugned order dated 26.04.2017 on the ground that the case of the

petitioner has not been considered in right direction. He submits that the

petitioner has rendered approximately 33 years of service and he retired on

31.03.2013. He further submits that the petitioner is getting pension and he

has received other pensionary benefits, but since the formal order of

confirmation has not been passed that is why the case of the petitioner has

not been considered for grant of 1st and 2nd ACP. He also submits that while

passing the impugned order dated 26.04.2017, the regularization

notification dated 13.02.2015 of the Government of Jharkhand has not been

dealt with in right direction. He further submits that the case of the

petitioner is fit to be allowed on the ground of discrimination. He refers to

Annexure-12 of the writ petition and submits that the case of similarly

situated employee has been considered by a coordinate Bench of this Court

in the case of Yogendra Prasad v. The State of Jharkhand & others in

W.P.(S) No. 5259 of 2007, whereby, direction was issued to consider the

case of that petitioner. He further submits that pursuant to the said order

passed by this Court, the case of Yogendra Prasad (supra) was considered

by the respondents and benefits of ACP was granted to him and his service

was also confirmed vide letter dated 29.09.2010. He also submits that as

said Yogendra Prasad (supra) has been provided the benefits by the

respondents, there was no occasion to discriminate the petitioner. He

further submits that when the earlier impugned order dated 22.10.2013 was

quashed by this Court, it was held in clear terms that when the service of

Yogendra Prasad (supra) was confirmed, the benefits of the confirmation

was required to be provided to the petitioner. He further submits that when

the earlier impugned order was quashed and the matter was again asked to

be considered, the respondent-authorities are required to grant the same

benefits to the petitioner. However, the petitioner has unnecessarily be

compelled to move before this Court thrice earlier. This is the fourth round

of litigation. He further submits that the case of the petitioner is fully

covered in view of the judgment rendered by the Hon'ble Supreme Court in

the case of State of Karnataka v. M.L. Kesari , reported in (2010) 9

SCC 247.

6. Learned counsel for the petitioner further relied upon the judgment

rendered by the Hon'ble Supreme Court in the case of Nihal Singh v.

State of Punjab, reported in (2013) 14 SCC 65 and submits that the

Hon'ble Supreme Court has taken into consideration the long period of

service rendered by the employee and even issued direction to regularise

the service of employee, who was not working on a sanctioned post.

7. Paragraphs 35 and 36 of the said judgment are quoted herein below:

"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.

36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the

appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is--the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks."

8. Learned counsel for the petitioner further relied upon the judgment

rendered by the Hon'ble Supreme Court in the case of Amarkant Rai v.

State of Bihar, reported in (2015) 8 SCC 265.

Paragraphs 13 and 14 of the said judgment are quoted herein below:

"13. In our view, the exception carved out in para 53 of Umadevi (3) is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1-1-2010.

14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of night guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularise the services of the appellant retrospectively w.e.f. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar)."

9. Learned counsel for the petitioner further submits that one identical

matter was considered by the Division Bench of this Court in the case of

The State of Jharkhand & Ors. v. Sudhir Kumar & anr. , in L.P.A. No.

439 of 2018, which was disposed of vide order dated 14.01.2020 in terms

of the concession provided by the learned Advocate General on instruction

to consider the confirmation of service of those appellants. He also submits

that this is the attitude of the State, which cannot be allowed to be

continued as in one case, they are liberal and in another case, they are

considering the case differently. He further submits that in light of these

submissions, the prayer made in this writ petition may kindly be allowed.

10. Per contra, Mr. Shivam Sahay, learned counsel for the respondent-

State submits that pursuant to earlier order of this Court, a Committee was

constituted and the Committee has considered the case of the petitioner

and after due deliberation, the case of the petitioner has been rejected. He

further submits that the criteria for regularisation as per notification dated

13.02.2015 has not been fulfilled by the petitioner and that is why the

Committee has rightly rejected the claim of the petitioner.

11. Having heard learned counsel for the parties, the Court has gone

through the materials on the record. Annexure-1 dated 04.07.1980 is the

order of appointment of the petitioner, wherein, several service conditions

have been stipulated and as per Clause 2 of such conditions, the petitioner

was required to pass typing test till 31.12.1980 and, thereafter only, the

service of the petitioner will be confirmed. It is an admitted position that the

petitioner has passed the typing test, as has been discussed supra. The

petitioner has also passed the Hindi noting and drafting and Accounts

examinations, which are required for such confirmation. By letter dated

16.10.1981, the competent authority has recommended for regularisation of

service of the petitioner after passing typing test. The petitioner has been

transferred from Darbhanga to Jamshedpur Division, which has been stated

in paragraph 5 of the writ petition. Had it been the case that the petitioner

was not appointed on vacant and sanctioned post, there was no question of

transfer of the petitioner from Darbhanga to Jamshedpur. The criteria

indicated for regularisation vide notification dated 13.02.2015 has not been

considered by the said Committee in right direction, in view of the fact that

it clearly stipulates that the persons, who have worked for 10 years on

irregular appointment, their services can be considered for regularisation.

The requirement of appointment was made by the competent authority,

which is being fulfilled in the case of the petitioner, in view of the fact that

the Commissioner of Commercial Taxes has delegated his power to the Joint

Commissioner of Commercial Taxes to appoint the petitioner. Thus, the

criteria is also fulfilled in the case of the petitioner. The educational

qualification and experience is also in favour of the petitioner. Such rule also

said that there is no need of sanctioned post and on erroneous ground, the

Committee has said that the petitioner is not fulfilling the condition, as

prescribed in the notification dated 13.02.2015. The similarly situated

person, namely, Yogendra Prasad (supra) has been given the benefit of

confirmation and benefits of 1st and 2nd ACP have also been granted to him

and the case of petitioner is also on the identical footing. This aspect of the

matter has also been considered by this Court in W.P.(S) No. 1437 of 2013

(supra) and in spite of that the authorities have passed one or another

order, which suggest that it is being passed with preoccupied mind. The

Hon'ble Supreme Court in the case of State of Karnataka v. M.L. Kesari ,

reported in (2010) 9 SCC 247 has considered the general principle for

regularisation in terms of the judgment passed in Uma Devi's case.

Paragraph 7 of the said judgment is quoted herein below:

"7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the

benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."

12. The State being the model employer cannot be allowed to

discriminate one employee with another one, which is apparent in the case

in hand, in view of the confirmation order and benefit provided to similarly

situated another person, namely, Yogendra Prasad (supra) and further in

the case of Sudhir Kumar (supra) in L.P.A. No.439 of 2018, where

concession was given by the learned Advocate General. A person, who has

rendered continuous unblemished service for approximately 33 years, was

allowed to retire and if any order of confirmation was not passed during

that period, it is not the fault of the petitioner. The petitioner has already

fulfilled the requirement of confirmation. The appointment of the petitioner,

in light of his continuous service, cannot be said to be illegal. It may be

irregular. The case of the petitioner is fully covered in view of the judgment

delivered by the Hon'ble Supreme Court in the case of M.L. Keshri (supra).