Jharkhand High Court

The State Of Jharkhand vs Mahendra Gope Son Of Sri Chakkan ... on 7 October, 2021

                                    [1]


        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             L.P.A. No.506 of 2019
       1. The State of Jharkhand.
       2. The Principal Secretary, Department of Home, Government of
          Jharkhand, P.O. & P.S. Dhurwa, District-Ranchi.
       3. The Inspector General of Prison, Government of Jharkhand, P.O. &
          P.S. Dhurwa, District-Ranchi.
       4. The Principal, Jail Training Institute, New Central Jail, P.O.-
          Reformitary School, P.S.-Sadar & District-Hazaribagh.

                                                   ... ... Respondents/Appellants
                                          Versus

       1. Mahendra Gope son of Sri Chakkan Gope, resident of Village-
          Champa Nagar, Nawadih, P.O. Tirla, P.S. Ichak, District-
          Hazaribagh.
       2. Mahabir Prasad Son of Sri Fagu Mahto, resident of Village-Khurd
          Mandai Kasidih, P.O. Reformitary, P.S. Sadar, District-Hazaribagh.
       3. Md. Jainul Ansari Son of Late Aniul Haque, resident of Village-
          Matwari, P.O.-G.P.O., P.S. Sadar, District-Hazaribagh.
       4. Inder Paswan, Son of Sri Ram Das Paswan, resident of Village-
          Karara, P.O. Karara, P.S. Ghoshwari, District-Patna (Bihar).

                                                   ...... Petitioners/Respondents
                                        -------

      CORAM:         HON'BLE THE CHIEF JUSTICE
               HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                        -------

For the Appellants : Mr. Ashutosh Anand, AAG-III For the Respondents : Mr. Gaurav Rai, Advocate Mr. Rajesh Kumar, Advocate

----------------------------

ORAL JUDGMENT 07/Dated 07th October, 2021

I.A. No.7313 of 2019:

1. This interlocutory application has been filed for condoning the delay of

211 days, which has occurred in preferring this appeal.

[2]

2. Heard learned counsel for the appellants.

3. Having regard to the averments made in this application, we are of the

view that the appellants were prevented by sufficient cause from

preferring the appeal within the period of limitation.

4. Accordingly, I.A. No.7313 of 2019 is allowed and the delay of 211

days in preferring the appeal is condoned.

L.P.A. No.506 of 2019:

5. The instant intra-court appeal is under Clause 10 of the Letters Patent

directed against the order/judgment dated 03.12.2018 passed by the

learned Single Judge of this court in W.P.(S) No.4817 of 2012 whereby

and whereunder the order passed by the administrative authority dated

18.01.2012, by which the writ-petitioners have been reverted from

regular employees to daily wagers, has been quashed by allowing the

writ petition.

6. The brief facts of the lis which is required to be enumerated read as

hereunder:

The writ-petitioner Nos.1, 2 & 3 were working on daily wages,

were appointed as mess servants and the writ-petitioner No.4 was

appointed as Adesh Pal by the order of the competent authority, i.e.,

Principal, Jail Training Institute, Hazaribagh. The services of the writ-

petitioners were confirmed in pursuance to the order dated 13.02.1999

passed by the respondent No.4. The writ-petitioners, thereafter, have

been granted pay scale along with medical allowances and house rent

allowances. The writ-petitioners, while continuing as such, had

represented before the respondent authorities for grant of benefit of [3]

upgradation in pay-scale under the Assured Career Progression Scheme

which was considered by the authority, however, the claim of the writ-

petitioners has been rejected holding that they are not entitled for the

benefit of upgradation of pay-scale under the Assured Career

Progression Scheme rather they have been held entitled to daily wages

for the work done as per the letter dated 18.01.2012. The writ-

petitioners being aggrieved with the aforesaid decision of the State

authority have approached to this Court by invoking the jurisdiction of

this Court under Article 226 of the Constitution of India by taking the

ground that the writ-petitioners have been working since 1987, 1992

and 1994 respectively and after rendering satisfactory services they

have been permanently absorbed as regular employees and when they

have claimed for the benefit of upgradation in pay-scale, the authorities

of the State Government came out with the impugned decision by

reverting them in the capacity of daily wagers.

The respondent-State of Jharkhand took the plea that all the

four writ-petitioners were appointed by the then Principal, Jail Training

Institute, Hazaribgh but not approved procedure was followed for their

appointment, as such, have been held not entitled for the benefit of

Assured Career Progression Scheme.

The cases of the writ-petitioners have been considered afresh in

order to scrutinize as to whether they are entitled to hold the post under

the permanent establishment, in course thereof, it has been found by the

State authorities that their appointments since was not made in

accordance with the applicable law, therefore, the decision has been

taken for reverting them in the capacity of daily wager.

[4]

The writ court had appreciated the argument advanced on

behalf of the parties and considering the judgment rendered by the

Hon'ble Apex Court in Secretary, State of Karnataka & Others vs.

Uma Devi (3) and Ors., (2006) 4 SCC 1; State of Karnataka & Ors.

vs. M.L. Kesari & Ors., (2010) 9 SCC 247 and Narendra Kumar

Tiwari & Ors. vs. State of Jharkhand & Ors., (2018) 8 SCC 238, had

quashed the impugned decision of the authorities by allowing the writ

petition, which is the subject matter of the instant intra-court appeal

preferred by the State of Jharkhand.

7. Mr. Ashutosh Anand, learned AAG-III appearing for the

respondents/appellants has submitted that the learned Single Judge has

erred in passing the impugned judgment which has been passed without

appreciating the fact that the appointments made in favour of the writ-

petitioners are illegal and therefore, the judgment rendered either in the

Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors.

(supra) or in the State of Karnataka & Ors. vs. M.L. Kesari & Ors.

(supra) or in the Narendra Kumar Tiwari & Ors. vs. State of

Jharkhand & Ors. (supra) will not be applicable, as such, the

impugned judgment is not sustainable in the eye of law.

Further ground has been agitated that the appointments made in

favour of the writ-petitioners since was not by the competent authority,

therefore, appointments will be held to be illegal and hence, they were

not entitled to be regularized in the regular establishment of the State

Government and in order to rectify the same the State Government had

taken the impugned decision which suffers from no infirmity but

without appreciating the aforesaid aspect of the matter, the impugned [5]

judgment has been passed by the learned Single Judge by quashing and

setting aside the impugned decision of the authority.

8. Per contra, Mr. Rajesh Kumar, learned counsel for the writ-

petitioners/respondents has submitted that there is no infirmity in the

impugned order rather according to him, the learned Single Judge has

appreciated the factual aspect in detail and after taking into

consideration the ratio laid down by Hon'ble Apex Court in Secretary,

State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra); State

of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and in Narendra

Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra), the

impugned judgment has been passed, therefore, the same may not be

interfered with.

9. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the

learned Single Judge. This Court, after going through the factual aspect

and after appreciating the document available on record, is of the view

that the issue which requires to be answered by this Court is as to

whether the initial appointment made in favour of the writ-petitioners

were illegal or irregular because if the appointment will be treated to be

illegal no advantage will be accrued to the writ-petitioners on the basis

of the proposition laid down by the Hon'ble Apex in Secretary, State of

Karnataka & Others vs. Uma Devi (3) and Ors. (supra); State of

Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and in Narendra

Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra) but if the

initial appointment of the writ-petitioners will be treated to be irregular

then certainly the case of the writ-petitioners will be required to be [6]

considered in view of the ratio laid down by the Hon'ble Apex Court in

the aforesaid judgments.

10. This Court, in order to scrutinize the aforesaid issue, deems it fit and

proper to refer the judgment rendered by the Hon'ble Apex Court in

Secretary, State of Karnataka & Others vs. Uma Devi (3)and Ors.

(supra); State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and

in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors.

(supra) basis upon which the learned Single Judge has come to the

conclusive finding by quashing and setting aside the impugned decision

of the administrative authority by allowing the writ petition.

11. There is no dispute about the fact that there cannot be any back door

entry in the appointment in the capacity of ad-hoc appointment and in

order to deal with such situation, the Constitution Bench of Hon'ble

Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi

(3) and Ors. (supra) has considered this aspect of the matter and came

out with the ratio that there cannot be any back door entry since the

same amounts to be in the teeth of the provisions of Articles 14 and 16

of the Constitution of India, but, however, an exception has been carved

out as under paragraph-53 of the aforesaid judgment whereby and

whereunder the Constitution Bench of the Hon'ble Apex Court has

been pleased to hold by way of exception that if the ad-hoc appointees

are working continuously for ten years without interference of any

interim order by Court of Law and if they have been appointed against

the sanctioned post, the State Government, if they are in requirement of

the services of such employees, is required to regularize them in service

by way of one time exercise by completing the same within a period of [7]

six months from the date of the judgment. Paragraph-53 of the said

judgment is being reproduced hereinbelow:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

Subsequently, the Hon'ble Apex Court has delved upon in State

of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) by dealing with

the difference in between the regular employment and illegal

employment. It has been clarified that the appointment which has been

made not against the sanctioned post will be considered to be illegal

appointment, however, appointment made without following the

procedure, i.e., without issuing an advertisement even by the competent

authority, such appointments will be said to be irregular appointment

and in such circumstances by taking into consideration the ratio laid

down at paragraph-53 of the judgment rendered in Secretary, State of

Karnataka & Others vs. Uma Devi (3) and Ors. (supra), services is

required to be regularized.

[8]

12. Further, the issue has crept up before this Court after creation of the

State of Jharkhand pertaining to the cut-off date for the purpose of

counting the period of ten years because in the judgment rendered in

Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors.

(supra) the cut-off date for counting the period of ten years has been

fixed up the date of pronouncement of judgment and since the State of

Jharkhand has been created w.e.f. 15.11.2000 and from that date till the

date of pronouncement of judgment in Secretary, State of Karnataka &

Others vs. Uma Devi (3) and Ors. (supra) the period of ten years was

not completing. The same has been clarified by the Hon'ble Apex

Court in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand &

Ors. (supra) whereby and whereunder it has been clarified that the

period of ten years so far as the State of Jharkhand is concerned, will be

counted from 15.11.2000, i.e., the date of creation of the State of

Jharkhand.

13. Thus, in sum and substance, the ratio which requires to be considered in

this case as has been laid down in Secretary, State of Karnataka &

Others vs. Uma Devi (3) and Ors. (supra), the condition for

regularization of the ad-hoc employees as per the ratio laid down under

paragraph-53, is by way of exception, therefore, we are required to

examine the fact as to whether the appointment of the writ-petitioners

will be treated to be illegal or irregular?

14. Learned counsel for the State-appellant has vehemently argued that the

appointment made in favour of the writ-petitioners are illegal and not

irregular, therefore, there is no reason for applicability of the judgment [9]

rendered in Secretary, State of Karnataka & Others vs. Uma Devi (3)

and Ors. (supra).

15. This Court, in order to examine that fact has considered the

appointment letters issued in favour of the writ-petitioners, i.e., on

28.11.1987, 22.07.1992 and 01.10.1994 respectively, from which it is

evident that the writ-petitioners have been appointed by the oder of the

Principal, Jail Training Institute, Hazaribagh.

It further appears from the document appended to the writ

petition issued under the signature of Assistant Inspector General,

Prison, Bihar dated 06.11.1979 whereby and whereunder it has been

communicated to the Principal, Jail Training Institute, Hazaribagh

informing him that the Principal Prison Training Institute, Hazaribagh

is the competent authority for appointment of the Bigular.

Subsequently, the appointment of the writ-petitioners were confirmed

as would be evident from the order dated 13.02.1999, appended as

Annexure-4 to the writ petition. The pay of the writ petitioners have

been fixed on the revised pay-scale on the basis of the recommendation

of 6th Pay Revision Committee implemented w.e.f. 01.01.2006 as

would appear from Annexure-5 to the writ petition.

16. It appears from the communication dated 17.08.2010 appended as

Annexuer-6 to the writ petition issued under the signature of Principal,

Prison Training Institute, Hazaribagh by which the due information has

been furnished to the Inspector General of Prison, Jharkhand, Ranchi

for consideration of their cases for grant of upgradation of pay-scale

under the Assured Career Progression Scheme. It further appears from

the said communication that the writ-petitioners have been found to [10]

discharge their duties continuously, i.e., without any break in service

and service book has also been opened as also it has been stated therein

that the appointment have been made against the sanctioned post and

the copy of the details of the sanctioned post has also been appended

for perusal by the concerned authority, i.e., Inspector General of Prison.

17. It further appears from Annexure-7 dated 18.01.2012 that one Sri

Indranath Kumar has been appointed against the sanctioned post basis

upon which recommendation has been made for consideration of his

case for grant of upgadation in pay-scale under Assured Career

Progression Scheme.

18. This Court has also found from Annexure-9 dated 21.03.2011 that the

details about the performance of the service has been made and one of

the appointment of Sri Indranath Kumar has been made on

compassionate ground while the other appointments have been

approved by the Inspector General of Prison.

19. It appears to this Court that the claim of the writ-petitioners has been

placed before the competent authority for grant of upgradation under

Assured Career Progression Scheme. The decision impugned dated

23.02.2012 has been passed by reverting them in the capacity of daily

wager.

Thus, it is evident from the document appended to the writ

petition that the services of the writ petitioners have been made against

the sanctioned vacant post and they have been found to be working

since 1987, 1992 and 1994 respectively.

[11]

20. Thus, there is no dispute about the fact that the writ petitioners since

have been appointed against the sanctioned post and are working

continuously for more than ten years without any aid of interim order,

therefore, we are not hesitant in holding that the case of the writ

petitioners are coming under the fold of paragraph-53 of the judgment

rendered in Secretary, State of Karnataka & Others vs. Uma Devi (3)

and Ors. (supra).

21. Further, it is very surprising that until the cases of the writ petitioners

have not been forwarded for grant of upgradation of pay-scale under the

Assured Career Progression Scheme the authorities have not proceeded

for taking any action rather they have proceeded to take action by

reverting them in the daily wager only when the immediate controlling

authority has recommended their cases for grant of upgradation in pay

scale and at that stage, instead of granting the benefit of upgradation in

pay-scale the respondent authorities came out with the impugned

decision on 23.02.2012, therefore, according to our considered view,

what has been submitted by the learned counsel for the State-appellant

that the services of the writ-petitioners are illegal, is not acceptable to

this Court for the reason aforesaid.

22. Further, the contention made by the learned counsel for the State-

appellant that the judgment rendered by the Hon'ble Apex Court in

Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors.

(supra) is not applicable which according to our considered view, is

also not acceptable, for the reason that since the appointment of the

writ-petitioners as daily wagers way back in 1987, 1992 and 1994 have

been made against the sanctioned post and they have been working [12]

continuously for more than ten years without any aid of interim order

passed by the Court of Law and further their services have also been

confirmed by the Principal, Prison Training Institute and not only that

their service book have also been opened and they have been given the

benefit of pay-scale on the basis of the recommendation of the 6th Pay

Revision Committee which goes to clarify that the services of the writ-

petitioners have rightly been taken into regular establishment of the

State Government and that is the reason they have been given the

benefit of upgradation in pay scale by virtue of the implementation of

6th Pay Revision Committee.