Jharkhand High Court
Mukund Kumar Pal @ Mukund Pal vs State Of Jharkhand on 5 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5947 of 2019
Mukund Kumar Pal @ Mukund Pal, age about 41 years, son of late
Katwaru Pal, resident of village and P.O. Tildag, P.S. Garhwa,
District Garhwa, at present posted as "Driver" at District Tuberculosis
Office at Garhwa, P.O. and P.S. Garhwa, District - Garhwa
... ... Petitioner
Versus
1. State of Jharkhand
2. Secretary, Health, Medical Education and Family Welfare
Department, Govt. of Jharkhand, office at Nepal House, P.O. and
P.S. Doranda, District - Ranchi
3. Deputy Commissioner, Garhwa, P.O. and P.S. Garhwa, District -
Garhwa
4. Civil Surgeon cum Chief Medical Officer, Garhwa, P.O. and P.S.
Garhwa, District - Garhwa
5. District Tuberculosis Officer, District Tuberculosis Centre
Garhwa, P.O. and P.S. Garhwa, District - Garhwa.
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Ashutosh Mishra, Advocate
For the Respondents : Mr. Ashwini Bhushan, Advocate
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07/05.04.2022 Heard Mr. Ashutosh Mishra, learned counsel appearing on
behalf of the petitioner.
2. Heard Mr. Ashwini Bhushan, learned counsel appearing on
behalf of the respondents.
3. This writ petition has been filed for the following relief:
"For issuance of a direction upon the concerned respondents to regularize
the service of petitioner on the post of Driver as the petitioner has requisite
qualifications with valid Driving License and working continuously since 2005 as
Driver under the Respondent.
And
Petitioner further prays for issuance of direction to set aside the letter
no.252 dated 19.07.2019 (Annexure - 7), Memo No.327 dated 04.09.2019
(Annexure - 8) and also to set aside the letter no.364 dated 4.10.2019 (Annexure
- 9) issued by the District Tuberculosis Officer, Garhwa;
And
For issuance of a direction upon the concerned respondents to permit the
petitioner to continue as Driver on contractual basis till Project RNTCP is in
operation or is in existence, due to the reason that Petitioner has been
continuously serving under the Respondents sincerely for a long period about 14
years, for the interest of justice and Equity."
Amended prayer added vide order dated 22.02.2022 (I.A. No.498 of 2021)
"For issuance of a direction for quashing of letter no.4010 dated
08.11.2019 issued by the Civil Surgeon-cum-Chief Medical
Officer, Garhwa, whereby and whereunder, the petitioner has been
removed from his service and directed to handover the logbook of
vehicle no.JH14A-3444 to the office of the civil Surgeon-cum -
Chief Medical Officer, Garhwa."
4. The learned counsel for the petitioner submits that the petitioner
had moved this Court earlier in W.P.(S). No.4568 of 2016 which was
disposed of vide Judgement dated 21.08.2018 along with other
analogous cases. He submits that at the relevant point of time when
the earlier writ petition was filed, the petitioner was continuing in
service and the grievance of the writ petitioners of other analogous
cases was that in spite of long services, no decision was taken by the
respondents for regularizing their services. He submits that a direction
was issued by this Court to examine the individual status of each and
every petitioner of the case in accordance with law and the
respondents were directed to consider the case in the light of judgment
passed by the Hon'ble Supreme Court in the case of Narendra Kumar
Tiwari and Others vs. State of Jharkhand and Others in Civil Appeal
Nos.7423-7429 of 2018 and also order passed by this Court on
21.08.2018 in W.P.(S) 1513 of 2016. The learned counsel also
submits that in the earlier round of litigation, certain orders were also
quashed whereby the prayer for regularization was rejected by the
concerned authorities. He submits that pursuant to the orders passed in
the analogous writ petitions, the case of the petitioner was considered
and by the impugned order as contained in letter no.252 dated
19.07.2019 (Annexure - 7), the claim for regularization of the
petitioner has been arbitrarily rejected. He further submits that another
letter contained in Memo no.327 dated 04.09.2019 was issued to the
petitioner by alleging that the appointment of the petitioner was void
ab initio to which the petitioner had responded vide letter dated
06.09.2019, and the explanation by the petitioner was also rejected
vide order dated 04.10.19 (Annexure - 9). The learned counsel
submits that thereafter the petitioner has been discontinued vide letter
no.4010 dated 8.11.19 which is under challenge in I.A. No.498 of
2021 and the said I.A. has been allowed and directed to be treated as
part of the main writ petition vide order dated 22.02.2022. The learned
counsel submits that the impugned orders as contained in Annexures -
7, 8, 9 and 10 are fit to be set aside.
5. The learned counsel appearing on behalf of the respondents
while opposing the prayer has submitted that in the earlier round of
writ application, the claim of regularization of the petitioner was
directed to be considered and pursuant to such direction, an impugned
order as contained in Annexure - 7 has been passed. The learned
counsel submits that as per the impugned order dated 19.7.19, the
petitioner was not employed against any vacant sanctioned post rather
he was working by way of stop gap arrangement in temporary basis in
Revised National Tuberculosis Control Programme. The learned
counsel has further submitted that after passing of the impugned order
as contained in Annexure - 7, certain more irregularities were found
in the matter of employment of the petitioner and the petitioner was
asked to show cause as to why the appointment of the petitioner on
contract basis be not discontinued and certain amount be recovered
from the petitioner to which the petitioner filed his reply and
thereafter, the impugned order dated 04.10.2019 has been passed
rejecting the reply of the petitioner and consequently, Memo no.4010
dated 08.11.2019 has been issued discontinuing the services of the
petitioner, but there is no order of recovery. The learned counsel for
the respondents has also submitted that the petitioner has himself
annexed his contract of employment as Annexure - 2 to the writ
petition which is purely contractual in nature and the contract was
entered into between District Tuberculosis Control Society (DTCS)
and the petitioner and was valid for a period of three months only
6. At this, learned counsel for the petitioner has submitted that the
contract of employment as contained in Annexure - 2 was extended
from time to time.
7. After hearing the learned counsel for the parties and
considering the facts and circumstances, it is apparent that the specific
case of the petitioner as per the writ petition is that the District
Tuberculosis Officer, Garhwa had appointed the petitioner on contract
basis in the post of driver w.e.f. 11.12.2007 and the contract was
executed on 11.12.2007 between the petitioner on one part and the
District Tuberculosis Control Society (DTCS) on the other. It further
appears that as per the case of the petitioner himself, the agreement
was initially for a period of one year, renewable on yearly basis and
the same was renewed from time to time and the petitioner has been
working on the post of driver under District Tuberculosis Officer,
Garhwa. It is not in dispute that no selection process as such was
followed for the selection of the petitioner as driver. The petitioner
had moved this Court in W.P.(S) No.4568 of 2016 for regularization
of his services which was disposed of by this Court vide order dated
21.08.2018. The operative portion of the order is quoted herein below
for ready reference:
"8. As a cumulative effect of the aforesaid observations, rules,
guidelines, legal propositions and judicial pronouncements, I hereby quash
and set aside the impugned orders rejecting the claim of the petitioners for
regularization of their services and the matter is remanded back to the
respective respondents for taking a fresh decision in view of the judgment
passed by the Hon'ble Apex Court on 01.08.2018 in Civil Appeal Nos. 7423-
7429 of 2018 (Narendra Kumar Tiwari & Ors. Vs. State of Jharkhand &
Ors.) and also the order passed by this Court on 21.08.2018 in W.P.(S). No.
1513 of 2016. So far the rest of the cases are concerned, in which the
respective respondents have not taken any decision till date regarding
regularization of the services of the petitioners, their cases shall also be
considered by the respective respondent in view of the aforementioned
judgments for taking a decision regarding regularization of their services.
9. The respective respondents are directed to examine the individual status
of each and every petitioners in accordance with law and thereafter, if there
is no other legal impediment, pass a speaking order assigning concrete and
valid reason consideration/ non-consideration of the cases of petitioners for
regularization of their services. The entire exercise by the respective
respondents must be completed within a period of twelve weeks from the date
of receipt/ production of a copy of this order."
8. This Court finds that as per the order passed by this Court, the
case of each and every petitioner was required to be examined in
accordance with law in the matter of regularization. Consequently, the
competent authority, Respondent no.4, passed the impugned order
dated 19.07.2019 as contained in Annexure - 7 to the writ petition and
recorded that the petitioner has been working on contractual basis
under the District Tuberculosis Control Society and his contract of
employment was renewable from time to time on yearly basis. The
authority also recorded that the petitioner was not working against the
sanctioned vacant post of the Health Department in the district of
Garhwa and in fact the petitioner has been working under Revised
National Tuberculosis Control Programme on temporary basis. It
further appears that vide Memo No.327 dated 04.09.2019, a show
cause was issued to the petitioner questioning his aforesaid
engagement and thereafter, the petitioner had filed a response to the
said show cause. Ultimately, vide letter no.364 dated 4.10.2019, it was
held that the petitioner cannot be continued as the appointment
procedure has not been followed in the matter of engagement of the
petitioner and also that the claim for regularization of the petitioner
was already rejected vide letter no.252 dated 19.7.2019 and thereafter
the engagement of the petitioner was discontinued vide letter no.4010
dated 8.11.19 (Annexure - 10). Admittedly, there is no order for
recovery from the petitioner, although, the same was contemplated
while issuing letter dated 04.09.2019.
9. Considering the materials on record, this Court finds that the
petitioner was not engaged against vacant sanctioned post in the
Health Department in the district of Garhwa, rather, he was engaged
on temporary basis in Revised National Tuberculosis Control
Programme and the engagement of the petitioner was contractual as is
apparent from Annexure - 2 to the present writ petition, which was
entered into between the petitioner and District Tuberculosis Control
Society. Admittedly, no procedure for selection of the petitioner was
ever followed. In view of the aforesaid facts and circumstances, this
Court does not find any illegality in refusal of regularization of the
petitioner by the impugned order and also no illegality in the act of
discontinuation of the petitioner by the respondent vide Memo
No.4010 dated 08.11.2019 (Annexure - 10). Accordingly, this writ
petition is dismissed.
10. It is made clear that, dismissal of the writ petition will not be an
impediment in the matter of fresh engagement or in the matter of
participation of the petitioner in accordance with law in any
recruitment process to be undertaken by the respondents.
11. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Saurav
