Dev Bhushan Kumar vs The State Of Jharkhand
2021 Latest Caselaw 2311 Jhar

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                      W.P. (S) No. 767 of 2016
      1. Dev Bhushan Kumar
      2. Dinesh Prasad
      3. Ram Parvesh Singh
      4. Brajesh Kumar                                                     ...   Petitioners
                                            Vs.
      1.     The State of Jharkhand
      2.     The Chief Engineer, Road Construction Department, Jharkhand Project
      Building, Dhurwa, Ranchi
      3.     The    Executive    Engineer,        Mechanical   Division,   Road   Construction
      Department, Hazaribag
      4.     The    Executive    Engineer,        Mechanical   Division,   Road   Construction
      Department, Ranchi                                                   ...   Respondents
                                            ----------

                     CORAM:           THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
                                 (Through: Video Conferencing)
                 For the Petitioner                   : Mr. P.K. Choudhary, Advocate
                 For the Respondent-State             : Mr. Sadab Bin Haque, AC to Sr. SC-I
                                            -----------
07/ 13.07.2021        The petitioners have approached this Court for a direction upon the

respondents to pay current as well as arrear of salary to the petitioners, which is not being paid to them since long. Further, prayer has been made for a direction upon the respondent to regularize the services of the petitioners as Driver, Chowkidar, Khalasi, as per their suitability taking into consideration the fact that they have been working under the respondents since the year, 1990 onwards.

The case of the petitioners lies in a narrow compass. The petitioners were engaged to work in the Road Construction Department against the sanctioned and vacant post in the pay-scale of Rs.775-12-995-14-1025. The petitioner Nos.1 & 2 were appointed as Khalasi and Helper respectively in the year, 1995. The petitioner No.3 was appointed as Chowkidar in the year, 1994 and the petitioner No.4 was appointed in the year, 1996. The petitioner No.1 was transferred to Mechanical Division, Road Construction Department, Hazaribag vide Memo dated 09.10.1995, issued by the Chief Engineer, (Mechanical), Mechanical Division, Road Construction Department, Bihar, Patna. The petitioner NO.2 was transferred to Road Construction Department, Mechanical Division, Ranchi vide Letter No. 25 dated 05.01.1996 duly

issued by the Executive Engineer, National Highway, Mechanical Division, Dehri. The Petitioner No.3 & 4 were also transferred to Hot Mix Plant, Mandu & Hot Mix Plant, Namkum respectively vide memo dated 1/04.09.1997 duly issued by the Executive Engineer, Mechanical Division, Road Construction Department, Ranchi. From time to time, the services of the petitioners were extended through different letters, issued by the Chief Engineer (Mechanical), Road Construction Department, Bihar, Patna. The service books of the petitioners were also opened and the amount towards the provident fund was also started to be deducted from 1996. It is specific case of the petitioners that though petitioners were working continuously, but the salary of the petitioners was stopped without any reason, the petitioners represented before the respondents in the year, 2007. Pursuant to the same, part payment of their dues salary was made on 30.03.2009. The petitioners are continuously working under the respondents since last 25 years against the sanctioned and vacant post, but their case for regularization has not been considered and also the current salary as well as the arrear of salary has not been released and as such, the petitioners have approached this Court.

Learned counsel for the petitioner submits that the petitioners are entitled for consideration of their case for regularization as they have worked for more than 25 long years. Learned counsel draws the attention of the Court towards Order /Judgment of the Hon'ble Apex Court in case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1 and submits that the issue is now no more res integra and as such, in view of the said judicial pronouncement, the case of the petitioners ought to have been considered, but the respondents have illegally and arbitrary not considered the same till date. He further submits that the respondents have illegally and arbitrary not given the current salary as well as arrears of salary to the petitioners and as such, a direction be given upon the respondents to release the entire arrears of salary as well as current salary of the petitioners and also regularize the services of the petitioners.

Per contra, counter-affidavit has been filed.

Mr. Sadab Bin Haque, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioners were appointed on temporary basis and thereafter, the services of the petitioners were terminated w.e.f. 29.08.1998 itself and as such, the services of the petitioners cannot be regularized after 23 years from their termination. This writ petitioner is barred by limitation as the petitioners have approached this Court after lapse of 18 years i.e. in the year, 2016. Now, the petitioners are not working under the

respondents and also all the dues of the petitioners were already paid and as such, this writ petition is liable to be dismissed.

Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that since the services of the petitioners have already been terminated and they have approached this Court after two decades, no order can be passed for regularization of their services. The petitioners have received all the dues in view of para 9 of the Counter-affidavit. Even, the order of termination is not challenged. The similar issue fell for consideration before the Hon'ble Apex Court in case of Raj Balam Prasad & Ors. Vs. State of Bihar & Ors., reported in 2018 (1) Supreme 12 and the Hon'ble Apex Court was of the view that regularization can be claimed while in service, not after termination. Appointment for a temporary period comes to an end at the end of that period. Grant of extension to work for some more period cannot make an employee permanent. Such employee cannot claim regularization.

Relevant paras of the judgment passed in case of Raj Balam Prasad (supra) is reproduced herein below:-

"17) This is what the Division Bench held for allowing the appeal and dismissing the appellants' writ petition:

"We have heard learned counsel for the parties and find that the order passed by the learned Single Judge is not sustainable in law. The order passed in LPA No.434 of 2001 dated 28th of July, 2008 was not brought to the notice of the learned Single Judge. It is further contended that even if the order dated 10.10.2006 was not set aside, the fact remains that such order of regularization could not have been passed since the services of the Muharrir have come to an end in 1991 itself. The permanent status could be conferred to those who were in service and not to those whose service had come to an end many years ago. Such an order could not be made basis of permanent status through the writ court. Such order dated 10.10.2006 is not enforceable in law. The representation having been declined in the light of the circular dated 16.04.2008, we do not find that the writ petitioners were entitled to any direction to treat them as regular employees."

20) One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed thereunder and once such power was exercised by the State, the status of such appointee

continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period.

21) In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularization in the services unless some Rule had recognized any such right in their favour.

24) As mentioned above, so far as the cases of these appellants are concerned, their representations were examined by the State but were rejected finding no merit therein. One of the reasons for rejection of the representation was that the services of the appellants had already come to an end in 1991 and, therefore, no orders to regularize their services could now be passed after such a long lapse of time."

As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, this Court is of the considered view that no case is made out for interference. Resultantly, writ petition stands dismissed.

(Dr. S.N. Pathak, J.) punit/-