The State Of Jharkhand vs Ashok Kumar
2022 Latest Caselaw 229 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No. 121 of 2021

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1.The State of Jharkhand.

2.The Secretary-cum-Commissioner, Commercial Taxation, Government of Jharkhand, P.O. & P.S. - Dhurwa, Dist-Ranchi.

3.The Joint Commissioner, Commercial Taxation, Hazaribagh, P.O.-G.P.O., P.S. -Hazaribag, Dist- Hazaribag.

4.Deputy Commissioner, Hazaribagh, P.O.- G.P.O., P.S. Sadar, Dist - Hazaribag.

                ......        Respondents/Appellants
                       Versus

Ashok Kumar, aged about 53 years, son of late Awadh Nandan Lal, resident of Sindur near Manokamna Hotel, Merbal, P.O. & P.S. Hazaribagh, District: Hazaribagh, State: Jharkhand. Writ Petitioner/Respondent

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

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For the Appellants : Mr. Sachin Kumar, A.A.G.-II

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Oral Judgment Order No. 04: Dated 3rd February, 2022:

The instant intra-court appeal under Clause 10 of

the Letters Patent is directed against the

order/judgment dated 10.12.2020 passed by learned

Single Judge in W.P. (S) No. 3025 of 2019 whereby and

whereunder order dated 30.04.2019, passed by the

concerned authority of the appellants-State by which the

claim of the petitioner for regularization of service was

rejected, was quashed and set aside with a direction to

regularize the services of the petitioner with all

consequential benefits within a period of six weeks from

the date of receipt/production of copy of the order.

2. The brief facts, necessary for consideration of the

lis, stand enumerated as hereunder:

The writ petitioner was appointed on temporary

basis on 19.11.1979 against the sanctioned and vacant

post on account of leave vacancy. Thereafter a fresh

notification was issued on 26.12.1979 i.e., after the

person who was on leave namely, Mohan Prasad

returned, by which the petitioner's service was extended

and he was posted in different circle i.e., Jharia Circle

on account of non-availability of fresh clerk against the

sanctioned and vacant post. On 27.04.1983 another

letter was issued stating therein that the case of the

petitioner is not the case of leave vacancy on account of

issuance of fresh letter of posting of the petitioner in

different circle. Thereafter, the writ petitioner was

provided pay-scale in view of the fact that the petitioner

has passed departmental examination on 01.07.1989.

However, after lapse of several years, the service of the

petitioner was not confirmed whereas services of the

persons who were appointed later namely, Sanjeev

Kumar Jha, Vimalendu Kumar, Vikash Kumar and

Ramesh Prasad, e.t.c., were confirmed vide memo dated

15.07.2005 and they were provided benefit of Assured

Career Progression Scheme also.

Aggrieved thereof, the writ petitioner approached

this Court by filing writ petition being W.P. (S) No. 4199

of 2011 for quashing the decision dated 11.12.2016 by

which the claim of the petitioner for regularization of

service was rejected. The Court, after going through the

materials on record, quashed the impugned decision

dated 11.02.2016 and directed the respondents to

consider the case of the petitioner afresh for

regularization and pass reasoned order. Pursuant

thereto, order dated 30.04.2019 was passed by the

concerned authority by which again the claim of the

petitioner for regularization of service was rejected,

which has been challenged by the writ petitioner by

filing writ petition being W.P. (S) No. 3025 of 2019.

The learned Single, considering the materials

available on record and on appreciation of rival

submissions made on behalf of parties as also

considering the fact that the writ petitioner is working

since 1979 and rendered 41 years of service and going to

retire on 31.01.2021, quashed order dated 30.04.2019

by which the concerned authority had rejected the claim

of the petitioner for regularization of service with a

direction to regularize the services of the petitioner with

all consequential benefits, which is the subject matter of

present intra-court appeal.

3. Mr. Sachin Kumar, learned A.A.G. II appearing for

the appellants-State has submitted that the learned

Single Judge has committed gross illegality in passing

the impugned order as the same has been passed

without considering the fact that the post, on which the

petitioner was allowed to continue in service, was not

sanctioned.

He further submits that the learned Single Judge

considering the cases of Sanjeev Kumar Jha, Vimalendu

Kumar, Vikash Kumar and Ramesh Prasad, whose

services were confirmed as also they were provided with

A.C.P. passed the impugned order but that does not

create a right upon the writ petitioner to claim

regularization in service and consequential benefit of

A.C.P even though he was allowed to perform his duty

for a period of 41 years as also superannuated from

service on attaining the age of superannuation w.e.f.

31.01.2021.

According to learned counsel for the appellant

since the learned Single Judge has not considered the

aforesaid aspect of the matter, the order impugned is not

sustainable in the eyes of law and therefore, the same

may be quashed and set aside.

4. We have heard learned counsel for the appellants-

State and perused the materials available on record as

also the findings recorded by learned Single Judge.

5. This Court, before entering into the legality and

propriety of the impugned order, deems it fit and proper

to refer certain undisputed facts, which are necessary

for proper adjudication of the lis.

6. Admittedly, the writ petitioner was appointed on

the post of Lower Division Clerk on temporary basis vide

Officer Order dated 19.11.1979 against leave vacancy

arisen due to proceeding on leave by one Lower Division

Clerk, namely, Mohan Prasad.

Thereafter the concerned authority, keeping the

fact into consideration that there is vacancy against the

sanctioned and vacant post at Circle level, issued

another Office Order dated 26.12.1979 by which the

petitioner's service was extended and he was posted in

different circle i.e., Jharia Circle.

It further appears from letter dated 27.04.1983,

which is an intra-departmental communication in which

list of class 3 and 4 employees, who were said to be

working against leave vacancy and whose services were

recommended to be put an end was annexed, that the

name of the writ petitioner did not find place in that

letter which goes to suggest that at that time he was not

working against leave vacancy rather he was working

against vacant and sanctioned post, as would appear

from letter dated 26.12.1979.

It further appears that by passage of time, vide

Office Order dated 01.07.1989, the writ petitioner was

provided the up-graded pay-scale in view of the fact that

the petitioner had passed departmental examination.

But after lapse of several years, neither the services of

the petitioner was confirmed nor benefit of A.C.P. was

granted in favour of petitioner whereas similarly situated

persons, namely, Sanjeev Kumar Jha, Vimalendu

Kumar, Vikash Kumar and Ramesh Prasad, etc., who

were appointed later, were extended the benefit of A.C.P.

vide memo dated 15.07.2005, which shows that the

petitioner was subjected to discrimination by not

confirming his service and extending the benefit of

A.C.P. while such benefit was extended to other similarly

situated persons.

Being aggrieved, the petitioner had earlier

approached this Court by filing writ petition being W.P.

(S) No. 4199 of 2011 for confirmation/regularization of

service as also for grant of benefits under A.C.P. Scheme

but during pendency of the writ petitioner the petitioner

came to know that vide decision dated 11.12.2016 the

claim of the petitioner for regularization of service was

rejected, as such further prayer was made for quashing

of decision dated 11.12.2016 by filing

Interlocutory Application being I.A. No. 8296 of 2017.

Learned Single Judge, going through the materials on

record as also order passed in W.P. (S) No. 2678 of 2017

and W.P. (S) No. 1648 of 2017 whereby decision of the

respondents-authorities dated 11.02.2016 was quashed

and set aside, quashed the impugned decision dated

11.02.2016 and directed the respondents to consider the

case of the petitioner afresh for regularization and pass

reasoned order in accordance with law.

Pursuant thereto, order dated 30.04.2019 was

passed by the concerned authority by which the claim of

the petitioner for regularization of service was rejected,

which was challenged by the writ petitioner by filing writ

petition being W.P. (S) No. 3025 of 2019. The learned

Single Judge, taking into consideration the fact in

entirety, quashed order dated 30.04.2019 and directed

to regularize the service of the petitioner with all

consequential benefits.

7. Learned counsel for the appellants-State has

primarily raised the issue of appointment of the writ

petitioner against the post which was never sanctioned

rather accordingly to him appointment was made

against leave vacancy.

8. This Court has considered the aforesaid

submission of the appellants-State in the light of fact

that the date of appointment of the writ petitioner i.e.

19.11.1979 is not in dispute and since then he was

allowed to continue in service till the date of

superannuation i.e. 31.01.2021.

The question of post having not been sanctioned

has been considered by the Hon'ble Apex Court in the

case of Secretary, State of Karnataka Vs. Uma Devi

& Ors [2006 (4) SCC 1] wherein at paragraph 53 it has

been held that there cannot be appointment in absence

of post having not been sanctioned and in the backdrop

of that aspect of the matter, the Hon'ble Apex Court has

laid down the proposition that such type of appointment

is illegal.

But the question which is to be considered in the

case in hand is as to whether State Government can be

allowed to take such decision after allowing the petitioner

to continue in service after 41 years as also allowing the

petitioner to superannuate from service on attaining the

age of superannuation w.e.f. 31.01.2021 ?

9. It is not in dispute, as per the materials available

on record, that apart from writ petitioner other persons,

namely, Sanjeev Kumar Jha, Vimalendu Kumar, Vikash

Kumar and Ramesh Prasad were granted benefit under

A.C.P. Scheme but the writ petitioner was denied such

benefit and his services were also not regularized and to

that effect specific statement was made in the writ

petition but the said averment has not been rebutted by

the appellants-State of Jharkhand in the counter

affidavit.

In the case in hand, the writ petitioner was

allowed to participate in the departmental examination

and after passing of such examination he was granted

up-graded pay-scale.

10. Thus, according to our considered view, the

appellants-State cannot be allowed to take the plea of

non-availability of sanctioned post after allowing the writ

petitioner to serve for a period of 41 years of

uninterrupted service. Further such plea cannot be said

to have force when the services of similarly situated

persons were regularized and they were granted benefit

under A.C.P. Scheme, but no such decision was taken in

favour of writ petitioner which itself shows the

discriminatory attitude of the appellants-authorities.

The question herein is that after rendering service

for a period of about 41 years and after retirement of an

employee from service if the plea of appointment on the

non-sanctioned post will be allowed to be agitated by

State-respondent while such plea has not been agitated

with respect to other similarly situated employees, would

it hit Article 14 of the Constitution of India as Article 14

stipulates that there cannot be any discrimination

among similarly situated employees.

11. It is settled position of law that there cannot be

any discrimination amongst similarly situated

employees, however, the persons can be treated

differently in a case of reasonable classification and in

that circumstance the principle of Article 14 will not

come into play. But, if the discrimination is based on

unreasonable classification, Article 14 will come into

play as has been held by Hon'ble Apex Court in State of

Jammu & Kashmir vs. Triloki Nath Khosa and Ors.,

(1974) 1 SCC 19 wherein the Hon'ble Court

[Chandrachud, J. (as he then was)] at paragraph 20

succinctly held as under :

"20.The challenge, at best, reflects the respondent's opinion on promotional opportunities in public services and one may

assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld." It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was for the respondents to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to equality, the Court (in paras 29 & 30) held thus :

"But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class."

Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [(1981) 4 SCC 335], which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations was challenged, which provides for retiring age of an Air-Hostess. The Court (in paragraph39) summarized thus :

"39. Thus, from a detailed analysis and close examination of the eases of this Court starting from 1952 till today, the following propositions emerge :-

(1)In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 can not be attracted.

(2)Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely out of the way. (3)Article 14 certainly applies where equals are treated differently without any reasonable basis. (4)Where equals and unequals are treated differently, Article 14 would have no application.

(5)Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6)In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:-

(a) the nature, the mode and the manner of recruitment of a particular category from the very start,

(b) the classifications of the particular category.

(c) the terms and conditions of service of the members of the category,

(d) the nature and character of the posts and promotional avenues,

(e) the special attributes that the particular category possess which are not to be found in other classes, and the like."

In the case in hand, on the basis of materials available

on record, the writ petitioner claimed to have been

appointed along with other similarly situated persons,

namely, Sanjeev Kumar Jha, Vimalendu Kumar, Vikash

Kumar and Ramesh Prasad, and in whose favour the

decision of confirmation/regularization in service was

taken and they were taken in regular establishment of

the State Government leaving the writ petitioner apart.

This specific fact has not been disputed by the State in

the counter affidavit filed by them before the writ Court,

therefore, according to our considered view, on the basis

of fact as referred hereinabove, if the writ petitioner has

not been give similar benefit it will lead to unreasonable

classification and hence Article 14 will come into play.

12. Further, the plea of confirmation of services of

other similarly situated employees as also up-gradation

in the pay-scale by granting benefit under A.C.P.

Scheme, is not in dispute since no rebuttal has been

made in the counter affidavit denying the statement

made by the writ petitioner in the writ petition. Further

other litigant, namely, Nand Kishor Prasad whose claim

for regularization were also denied vide order dated

11.02.2016 approached before this Court by filing writ

petition being W.P. (S) No. 2678 of 2017 and this Court

after considering the pleadings available on record,

quashed the impugned order of rejection of claim of the

petitioner and very surprisingly the appellants-State has

not chosen to assail the said order rather as has been

submitted at Bar that the order passed by the learned

Single Judge has been acted upon by regularizing him in

service. Therefore, action of the State Government

cannot be said to be justified in adopting the policy of

pick and choose amongst similar set of employees.

13. Although, the Hon'ble Apex Court in Secretary,

State of Karnataka Vs. Uma Devi & Ors (supra) has

deprecated the back-door entry but the Hon'ble Apex

Court has also observed in the said order that the

employee who has already been inducted in service may

be taken in regular establishment, as per observation

made at paragraph 53 thereof, by carving out the

exception as has been made by issuing command upon

the State Government to take one time exercise, if

services of the employees who have been inducted in

service through back-door is required, same is to be

taken within the period of six months, who have

completed 10 years of service as on the date of the

pronouncement of the judgment without support of any

interim order passed by the Court of law.

There is no denial on the proposition of law that

the order passed by the Hon'ble Apex Court is the rule of

land in view of Article 141 of the Constitution of India

but when the Hon'ble Apex Court has already given a

direction in the case of Secretary, State of Karnataka

Vs. Uma Devi & Ors (supra) then why the State

Government has not taken any action to dispense with

the services of the writ petitioner as the State

Government is taking the plea that appointment of the

writ petitioner was made on the non-sanctioned post. If

that be so the State Government ought to have taken

adverse decision by dispensing with the services of the

writ petitioner in view of the observations made by the

Hon'ble Apex Court at paragraph 53 of the judgment

rendered in Secretary, State of Karnataka Vs. Uma

Devi & Ors (supra) but no such decision was taken

rather the writ petitioner was allowed to continue in

service fairly for a period of 15 years even after

pronouncement of the judgment in Secretary, State of

Karnataka Vs. Uma Devi & Ors (supra) and the

appellants-State allowed the writ petitioner to

superannuate from service w.e.f. 31.01.2021.

14. Therefore, according to our considered view, the

ratio which has been laid down by the Hon'ble Apex

Court in Secretary, State of Karnataka Vs. Uma Devi

& Ors (supra) has not been complied with by the said

authority and therefore, they cannot be allowed to take

any decision with the aid of observations made at

paragraph 53 of the said judgment at this juncture after

allowing the writ petitioner to continue in service for

about 15 years from the date of such judgment.

15. This Court, on the basis of discussions made

herein above, is of the view that the decision of rejection

of the claim of the writ petitioner for regularization in

service by the competent authority of the State

Government cannot be said to be just and proper and if

such decision of the State Government will be declared

to be just and proper it will be nothing but the

concerned employee will be subjected to unfair practice

and exploitation.

Since we are living in the welfare State and when

any rule of law has come or any judicial pronouncement

has come and when the State Government has been

directed to act upon on the basis of such decision, it is

incumbent upon the State Government to act in

pursuance to the aforesaid judgment since such

judgment has become the rule of land. But no such

decision was taken in compliance of such direction.

Therefore, order of rejection of the claim of the writ

petitioner for regularization, after allowing him to

rendering service for 41 years and allowing him to

superannuate from service, cannot be said to be justified

and proper.

16. The learned Single Judge, considering the

aforesaid aspect of the matter since has taken decision,

quashing and setting aside the order passed by the

concerned authority which according to our considered

view, cannot be said to suffer from any error.

17. Accordingly, the appeal fails, and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Alankar/ -

A.F.R.