Jharkhand High Court
Baha Oraon vs State Of on 5 October, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 849 of 2021
Baha Oraon .... .... Petitioner
1. The State of Jharkhand.
2. Secretary, Drinking Water and
Sanitation Department, Ranchi.
3. Engineer-in-Chief, Drinking Water and
Sanitation Department, Ranchi.
4. Regional Chief Engineer, Drinking
Water and Sanitation Department, Ranchi.
5. Superintendent Engineer, Drinking Water and
Sanitation Department, Ranchi.
6. Executive Engineer, Drinking Water and
Sanitation Department, Gonda, Ranchi. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
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For the Petitioner : Mr. Shashank Shekhar, Advocate
For Respondent-State : AC to S.C.-V
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3/ 05.10.2021 Heard the parties.
2. The petitioner has approached this Court with the prayer for
direction to the respondent Nos. 2 and 3 for regularising the service of the
petitioner after incorporating his name in the proposed list prepared for
regularisation in service against the vacant and sanctioned post.
3. As per the factual matrix as delineated in the writ petition the
petitioner was appointed as Filter Khalasi prior to 1.1.1988 in the work
charge establishment of Public Health Engineering Department (now
Drinking Water and Sanitation Department, Gonda, Ranchi) and is
discharging his duties till date to the satisfaction of all concerned without
any break and stigma in service. When the case of similarly situated
persons have been considered for regularization and his case has been left
away, the petitioner preferred a writ petition, bearing CWJC No. 2479 of
2000(R), which came to be disposed of directing the respondents to
consider his case in accordance with law if it was found that the petitioner
has been working continuously since 1988. Though the petitioner filed a
detailed representation, but the same has not been considered and hence,
this writ petition.
4. Mr. Shashank Shekhar, learned counsel appearing for the
petitioner assiduously argues that the petitioner is entitled for
regularisation in view of the fact that the case of other similarly situated
persons have been considered for regularization and also in view of the
fact that the petitioner is working prior to 1.1.1988 in the work charge
established of the Department. Learned counsel further argues that the
respondents have never disputed that the petitioner was not working prior
to 1988, rather, the ground for not consideration of his case is the dispute
with regard to his actual date of birth, which is not tenable in the eyes of
law. Learned counsel submits that the petitioner preferred a representation
with respect to his actual date of birth before the respondents, but the
same has not been considered. Placing heavy reliance upon the judgment
of Full Bench of this Court in the case of Ram Prasad Singh Vs. State of
Jharkhand & ors., reported in 2005 (3) JCR 9 (Jhr) (FB), learned
counsel submits a direction be given to the respondents to incorporate the
name of the petitioner in the proposed list prepared by the Department for
regularisation in service.
5. Per contra counter affidavit has been filed. Mr. Anil Kumar
Singh, learned AC to SC-V vehemently opposes the contention of learned
counsel for the petitioner and submits that admittedly the petitioner is
working prior to 1.1.1988, but in view of dispute in date of birth, his case
was rightly not reconsidered. However, learned counsel fairly submits that
if the petitioner files a fresh representation, the same shall be considered
in accordance with law and if the case of the petitioner is found fit to be
regularised, an order to that effect shall be passed.
6. Be that as it may having gone through the rival submissions
of the parties and on perusal of the records and upon consideration of
several judgments passed by this Court as well as by the Hon'ble Apex
Court, I am of the considered opinion that it is a fit case which needs
consideration for regularization. Admittedly, the petitioner has been
working on the post of Filter Khalasi prior to 1.1.1988 in the work charge
establishment of Public Health Engineering Department (now Drinking
Water and Sanitation Department). The petitioner has completed more
than 34 years of service under the respondent State in work charge
establishment and he is entitled for consideration for regularization.
Though earlier, the Hon'ble Apex Court, while considering
the cases of regularization, had given a guideline in view of the
Constitutional Bench Judgment in case of Secretary, State of Karnataka
& Ors. Vs. Uma Devi and others, reported in (2006) 4 SCC 1, another
Bench of the Hon'ble Apex Court, taking in view the several aspects of
regularization, came out with a judgment in case of State of Karnataka
& Ors. Vs. M.L. Kesri & Ors., reported in (2010) 9 SCC 247. The
Hon'ble Apex Court in case of Raj Balam Prasad & Ors. Vs. State of
Bihar & Ors., reported in 2018 (1) Supreme 12 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.
7. Further, in case of Sheo Narain Nagar & Ors. Vs. State of
Uttar Pradesh & Ors., reported in AIR 2018 SC 233, the Hon'ble Apex
Court has held that:-
"8. When we consider the prevailing scenario, it is painful to note
that the decision in Uma Devi (Supra) 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 Uma Devi
(supra). 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 Uma
Devi (supra) has been ignored and conveniently over looked by
various State Governments/ authorities. We regretfully make the
observation that Uma Devi (supra) has not be 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 regularizing the services of
incumbents. They are being continued in service without payment
of due salary for which they are entitled on the basis of Article 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, AIR 1983 SC 130 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 down trodden 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 Uma Devi (supra). Thus, the time has come to stop the
situation where Uma Devi (supra) 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 Uma Devi (supra) 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/adhoc basis
or otherwise. This kind of action is not permissible, when we
consider the pith and substance of true spirit in Uma Devi
(supra).
10. The High Court dismissed the writ application relying on the
decision in Uma Devi (supra). But the appellants were employed
basically in the year 1993; they had rendered service for three
years, when they were offered the service on contract basis; it was
not the case of back door entry; and there were no Rules in place
for offering such kind of appointment. Thus, the appointment
could not be said to be illegal and in contravention of Rules, as
there were no such Rules available at the relevant point of time,
when their temporary status was conferred w.e.f. 2.10.2002. The
appellants were required to be appointed on regular basis as a
one-time measure, as laid down in paragraph 53 of Uma Devi
(supra). Since the appellants had completed 10 years of service
and temporary status had been given by the respondents with
retrospective effect in the 2.10.2002, we direct that the services of
the appellants be regularized from the said date i.e. 2.10.2002,
consequential benefits and the arrears of pay also to be paid to
the appellants within a period of three months from today."
8. The same view was reiterated in case of Upendra Singh Vs.
State of Bihar, reported in (2018) 1 Supreme 746, taking into
consideration the judgment delivered in case of Uma Devi (supra).
9. The view expressed by the Hon'ble Supreme Court in all the
aforesaid cases were taken into consideration by the Hon'ble Apex Court
in its latest judgment delivered on 01.08.2018 in Civil Appeal Nos. 7423-
7429 of 2018 (Narendra Kumar Tiwari & Ors. Vs. State of Jharkhand
& Ors.). The Hon'ble Apex Court was of the considered opinion that the
consideration of the State Govt. to notification/ resolution dated
13.02.2015, denying the benefits of regularization in view of the
provisions of Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt
Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (for
short "Regularization Rules") was completely impractical in view of the
directions rendered in case of Uma Devi (supra) as well as M.L. Keshri
(supra). Relevant paras of the judgment passed in case of Narendra
Kumar Tiwari (supra) is reproduced herein below:-
"6. The decision in Uma Devi (3) was intended to put a full stop
to the somewhat pernicious practice of irregularly or illegally
appointing daily wage workers and continuing with them
indefinitely. In fact, in paragraph 49 of the Report, it was pointed
out that the rule of law requires appointments to be made in a
constitutional manner and the State cannot be permitted to
perpetuate an irregularity in the matter of public employment
which would adversely affect those who could be employed in
terms of the constitutional scheme. It is for this reason that the
concept of a one-time measure and a cut-off date was introduced
in the hope and expectation that the State would cease and desist
from making irregular or illegal appointments and instead make
appointments on a regular basis.
7. The concept of a one-time measure was further explained in
Kesari in paragraphs 9, 10 and 11 of the Report which read as
follows:
"9. The term `one-time measure' has to be understood in
its proper perspective. This would normally mean that
after the decision in Umadevi (3), each department or
each instrumentality should undertake a one-time
exercise and prepare a list of all casual, daily-wage or ad
hoc employees who have been working for more than ten
years without the intervention of courts and tribunals and
subject them to a process verification as to whether they
are working against vacant posts and possess the
requisite qualification for the post and if so, regularize
their services.
10. At the end of six months from the date of decision in
Umadevi (3), cases of several dailywage/ad-hoc/casual
employees were still pending before Courts.
Consequently, several departments and instrumentalities
did not commence the onetime regularization process. On
the other hand, some Government departments or
instrumentalities undertook the one-time exercise
excluding several employees from consideration either on
the ground that their cases were pending in courts or due
to sheer oversight. In such circumstances, the employees
who were entitled to be considered in terms of Para 53 of
the decision in Umadevi (3), will not lose their right to be
considered for regularization, merely because the one-
time exercise was completed without considering their
cases, or because the six month period mentioned in para
53 of Umadevi (3) has expired. The onetime exercise
should consider all dailywage/adhoc/those employees
who had put in 10 years of continuous service as on
10.4.2006 without availing the protection of any interim
orders of courts or tribunals. If any employer had held
the one-time exercise in terms of para 53 of Umadevi (3),
but did not consider the cases of some employees who
were entitled to the benefit of para 53 of Umadevi (3), the
employer concerned should consider their cases also, as
a continuation of the one-time exercise. The one time
exercise will be concluded only when all the employees
who are entitled to be considered in terms of Para 53 of
Umadevi (3), are so considered.
11. The object behind the said direction in para 53 of
Umadevi (3) is two- fold. First is to ensure that those who
have put in more than ten years of continuous service
without the protection of any interim orders of courts or
tribunals, before the date of decision in Umadevi (3) was
rendered, are considered for regularization in view of
their long service. Second is to ensure that the
departments/instrumentalities do not perpetuate the
practice of employing persons on daily-
wage/adhoc/casual for long periods and then periodically
regularize them on the ground that they have served for
more than ten years, thereby defeating the constitutional
or statutory provisions relating to recruitment and
appointment. The true effect of the direction is that all
persons who have worked for more than ten years as on
10.4.2006 [the date of decision in Umadevi (3)] without
the protection of any interim order of any court or
tribunal, in vacant posts, possessing the requisite
qualification, are entitled to be considered for
regularization. The 7 fact that the employer has not
undertaken such exercise of regularization within six
months of the decision in Umadevi (3) or that such
exercise was undertaken only in regard to a limited few,
will not disentitle such employees, the right to be
considered for regularization in terms of the above
directions in Umadevi (3) as a one-time measure."
8. The purpose and intent of the decision in Umadevi (3) was
therefore two-fold, namely, to prevent irregular or illegal
appointments in the future and secondly, to confer a benefit on
those who had been irregularly appointed in the past. The fact
that the State of Jharkhand continued with the irregular
appointments for almost a decade after the decision in Umadevi
(3) is a clear indication that it believes that it was all right to
continue with irregular appointments, and whenever required,
terminate the services of the irregularly appointed employees on
the ground that they were irregularly appointed. This is nothing
but a form of exploitation of the employees by not giving them
the benefits of regularisation and by placing the sword of
Damocles over their head. This is precisely what Umadevi (3)
and Kesari sought to avoid.
9. 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 15th November, 2000 and the
cut-off date was fixed as 10th April, 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. 10. The High Court as
well as the State of Jharkhand ought to have considered the
entire issue in a contextual perspective and not only from the
point of view of the interest of the State, financial or otherwise -
the interest of the employees is also required to be kept in mind.
What has eventually been achieved by the State of Jharkhand is
to short circuit the process of regular appointments and instead
make appointments on an irregular basis. This is hardly good
governance.
11. Under the circumstances, we are of the view that the
Regularisation Rules must be given a pragmatic interpretation
and the appellants, if they have completed 10 years of service
on the date of promulgation of the Regularisation Rules, ought
to be given the benefit of the service rendered by them. If they
have completed 10 years of service they should be regularised
unless there is some valid objection to their regularisation like
misconduct etc.
12. The impugned judgment and order passed by the High Court
is set aside in view of our conclusions. The State should take a
decision within four months from today on regularisation of the
status of the appellants."
8. Admittedly, the services of the employees cannot be regularized
if their appointments itself are illegal and dehors the rules, that
does not mean that employees who had rendered their services for
long decades, even though appointed on daily wage basis or on
contractual basis and subsequently, rendered their services on
sanctioned and vacant post, cannot be considered for regularization
in view of the decision of Uma Devi's case that they have not
rendered 10 years services before the date of judgment in Uma
Devi's case i.e. 2006. The validity of resolution regarding scheme
of regularization of the State Govt. was only for a year and the
same is not in existence, as on date. As such, for regularizing the
services in the State of Jharkhand and fixing the cut-off date from
2006, taking into consideration the view expressed by the Hon'ble
Apex Court in case of Uma Devi (supra) is not at all tenable in the
eyes of law in the context of State of Jharkhand. It has been held by
the Hon'ble Apex Court that State of Jharkhand came into existence
on 15th November, 2000 and the cut-off date was fixed as 10th
April, 2006, as in this manner, the pernicious practice of
indefinitely continuing irregularly appointed employees would be
perpetuated contrary to the intent of the Constitution Bench."
10. As a cumulative effect of the aforesaid observation
observations, rules, guidelines, legal propositions and judicial
pronouncements, I hereby direct the petitioner to file a fresh
representation annexing the documents to show his correct date of birth
and if it is found that there is no other legal impediment other than the
date of birth, which cannot be a ground for rejection of the case for
regularization, the respondents, particularly, respondent No.2 shall
consider his case for regularization in permanent establishment of
Drinking Water and Sanitation Department, Gonda, Ranchi. The entire
exercise by the respondents must be completed within a period of twelve
weeks from the date of receipt/ production of a copy of this order.
11. This writ petition stands allowed.
(Dr. S. N. Pathak, J.)
R.Kr.
