Jharkhand High Court

Gopal Prasad vs The State Of Jharkhand on 19 January, 2021

                                   1               W.P.(S) No. 5600 of 2019




      IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 5600 of 2019

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1.Gopal Prasad, aged about 40 years, son of Shri Bhola Mahto, resident of villge Singhani, PO Korra, PS Mufassil, District Hazaribagh-825301

2.Asim Toppo, aged about 40 years, son of late Elaric Toppo, resident of Ranchi-Patna Road (Hurhuru), PO Sadar, PS Sadar, District Hazaribagh- 825301

3.Rajiv Anand, aged about 40 years, son of Shri Arun Kumar Sinha, resident of Dhonia Talab, PO Sadar, PS Sadar, District Hazaribagh-825301

4.Shyam Nath Verma, aged about 40 years, son of late Laxmi Narayan Verma, resident of Hadari, PO Ichak, PS Ichak, District Hazaribagh-825301

5.Afroz Akhtar, aged about 40 years, son of Hazi Abdul Razzak, resident of village Mandaikala (Sufia Villa), PO Reformatory School, PS Sadar, District Hazaribagh-825301

6.Suman Kumar, aged about 34 years, son of late Babu Lal Rama, resident of P.T.C. Road, Matwari, PO Sadar, PS Korra, District Hazaribagh-825301.

7.Swati Verma, aged about 34 years, daughter of Shri Pawan Kumar Verma, resident of New Colony near Kumhar Toli, PO Sadar, PS Sadar, District Hazaribagh 825301

8.Renu Bala, aged about 40 years, Daughter of Ramesh Chandra Prasad, resident of village Lohandi, PO Lohandi, PS Chouparan, District Hazaribagh-625406

9.Shankar Prasad, aged about 40 years, son of Shri Baleshwar Prasad, resident of village Lartango, PO Punai, PS Ichak, District Hazaribagh- 825301

10.Md. Parvez, aged about 38 years, son of late Md. Ashraf, resident of village Amrit Nagar, PS Korra, PS Mufffasil, District Hazaribagh 825301

11.Arun Kumar Paswan, aged about 35 years, son of Rameshwar Ram, resident of village Khirgaon, PO Hazaribagh, PS Sadar, District Hazaribagh 825 301.

12.Smt. Mamta Singh, aged about 45 years, wife of Shri Ram Bhagat Singh, resident of Pravin Kumar Bharat Mudranalay, Bara Bazar, Subhash Marg, PO aned PS Hazaribagh, District Hazaribagh 825301

13.Ujjawal Kishore, aged about 40 years, son of Sri Nand Kishore Prasad, resident of New Area, Second Gali, near Bread Factory, PO and PS Sadar, District Hazaribagh 825301 ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.The Principal Secretary, Rural Development Department, FFP Building, HEC, Dhurwa, PO and PS Jagannathpur, District-Ranchi

3.The Divisional Commissioner, North Chotanagpur Division, Hazaribagh, PO GPO, PS Hazaribagh, District Hazaribagh

4.The Deputy Commissioner, Collectoriate Office Hazaribagh Hazaribagh, PO and PS Hazaribagh, District Hazaribagh ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Anil Kumar Sinha, Sr. Advocate Mr. Raunak Sahay, Advocate For Resp.-State :- Mr. Suraj Prakash, Advocate

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4/19.01.2021 Heard Mr. Anil Kumar Sinha, the learned Senior counsel

assisted by Mr. Raunak Sahay, the learned vice counsel appearing for the

petitioners and Mr. Suraj Prakash, 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 the service of the petitioners on the

post of Block Programme Officer(BPO) in North Chotanagpur Division,

Hazaribagh under MGNREGA scheme.

4. The petitioners are working on the post of Block

Programme Officer (BPO) on wage basis. Pursuant to the advertisement

published in the newspaper by the respondents by which the application

for appointment on the post of Block Programme Officer (BPO) was

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

the requisite qualification in terms of the advertisement, the petitioners

were called for interview in terms of Annexure-1 on various dates for the

post of Block Programme Officer. The petitioners appeared in the

interview and by way of common appointment letter, the petitioners were

appointed on 08.04.2008 on sanctioned post. The name of the

petitioners figure at so.no.1(2), 5(1), 6(1), 11(1), 18(2), 25(1), 34(2),

35(1), 39(1), 40(1), 51(2), 57(1) and 43(1). The petitioners were

directed to join on the posts and they made their joining on 20.05.2008,

20.05.2008, 20.05.2008, 20.05.2008, 20.05.2008, 20.05.2008,

16.05.2008, 21.05.2008, 20.05.2008, 21.05.2008, 21.05.2008,

23.05.2008 and 20.05.2008, respectively. The petitioners have completed

ten years of service on the post of Block Programme Officer. The

petitioners have filed the representation in view of Annexure-4 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

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'

case 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. Suraj Prakash, the learned counsel for the respondent

State submits that the case of the petitioners can be considered by the