Anup Kumar Dutta vs The State Of Jharkhand
2023 Latest Caselaw 519 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P (S) No. 5222 of 2019

1. Anup Kumar Dutta
2. Bipin Kumar Tudu
3. Shiv Kumar Thakur
4. Bijendra Kumar Bhagat
5. Hitesh Kumar
6. Tulsi Kumar Bhokta
7. Subodh Kumar Mahto
8. Chandan Kumar Mahto
9. Md. Shamim Ansari
10. Sita Ram Saw
11. Pradeep Kumar
12. Manwendra Narayan
13. Suresh Kumar Rawani
14. Suresh Das
15. Bibek Kumar Ball
16. Dip Narayan Singh
17. Shukdeo Mandal
18. Vijay Kant Yadav
19. Deepak Kumar Mahato
20. Sanjay Rawani
21. Shibeshwar Rana
22. Ramchandra Yadav                              ---    ---    Petitioners
                               Versus
1. The State of Jharkhand
2. The Chief Secretary, Govt. of Jharkhand
3. Principal Secretary, Department of Personnel, Rajbhasha &
    Administrative Reform, Govt. of Jharkhand
4. The Principal Secretary, Human Resources Development Department, Govt.
    of Jharkhand
5. The Director, Primary Education, Human Resources Development
    Department, Govt. of Jharkhand
6. The Director, Jharkhand Education Project Council, Ranchi
7. The Deputy Commissioner, Dumka
8. The Deputy Superintendent Education, Dumka
9. The Deputy Commissioner, Deoghar
10. The Deputy Superintendent Education, Deoghar
11. The Deputy Commissioner, Pakur
12. The Deputy Superintendent Education, Pakur
13. The Deputy Commissioner, Godda
14. The Deputy Superintendent Education, Godda
15. The Deputy Commissioner, Bokaro
16. The Deputy Superintendent Education, Bokaro
17. The Deputy Commissioner, Chatra
18. The Deputy Superintendent Education, Chatra
19. The Secretary, Ministry of Education, Govt. of India, New Delhi
                                                     ---    ---  Respondents
                                        ---

CORAM: Hon'ble The Acting Chief Justice Hon'ble Mr. Justice Deepak Roshan

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For the Petitioner: Mr. Ankit Apurva, Advocate For the Resp.-State: Mr. Piyushita Meha Tudu, A.C to A.A.G-IV For the Resp.-JEPC: Mr. Krishna Murari, Raj Vardhan, Advocate

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06 / 01.02.2023 Writ petition was preferred with the following prayer.

a) To quash the part of notification no, 1632 dated 05.09.2012 (Annexure-1) containing the Rules framed by department of Human Resource Development, Govt. of Jharkhand regarding appointment of teachers and instructors in elementary schools coming under Directorate of Education, Department of HRD, since, the same being ultra vires of Article 14, 16 & 21 of the Constitution of lndia as because no provision has been made for regularisation of service of such Para Teachers and Assistant Teachers who are well qualified having TET certificate and have been discharging the duties for the last 5- 15 years in different Government Schools.

b) Further to quash the part of notification no. 1348 dated 13.02.2015 (Annexure-3) issued by Department of Personnel, Government of Jharkhand by which a Rule in exercise of power conferred under Article 309 of the Constitution of India has been framed regarding regularisation of service of all such employees under State Government who have irregularly been appointed and working for the last 10 years on or before 07.10.2006 (cut off date), while considering the fact that the respondents while framing the rule regarding regularisation have not considered the position of Para Teachers like the petitioners who have been appointed / engaged only in the year 2003 and on subsequent dates under Sarv Siksha Abhiyan i.e. the policy of Govt. of India and this cut off date have been fixed doesn't bring the petitioners for consideration for regularisation since, none of the Para Teachers can show uninterrupted service of 10 years on or before the cut off date.

c) For issuance of appropriate direction upon the Respondents authorities to regularize the appointment/ services of the petitioners (Para Teachers) as per their seniority whereby these Para Teachers who were appointed by the concerned District Authority i.e. Deputy Commissioner for teaching in the schools of Jharkhand from block to district level after duly passing the Teachers Eligibility Test (TET) examination conducted by Jharkhand Academic Council and they are rendering their services for the last 5- 15 years in Govt. Schools in class I to class V & class VI to class VII, while also considering the facts that around 1,50,000 vacancies of Assistant Teachers are there in different schools of Jharkhand from Primary to Middle Level in all 24 districts and moreover other States have not only taken a policy decision with respect to regularisation of service of Para Teachers but even regularised also.

d) For issuance of appropriate direction upon the Respondents authorities to appoint the petitioners against the sanctioned post and on the vacant post of Assistant Teachers since they have validly been appointed by the concerned Deputy Commissioner /Chairman District Education Committee and moreover completed more than 240 days of un-interrupted service.

e) The petitioner further pray for issuance of appropriate directions upon the respondents authorities to pay them on the principle of equal pay for equal work the salary and other benefits at par with other Assistant Teachers working in different Govt. Schools while appreciating the fact that these petitioners as a Para Teachers are discharging same nature of job, having same qualification but are getting honorarium."

2. However, at the outset, learned counsel for the parties informed that issues have been set at rest in view of the judgment dated 16.12.2022 rendered by the learned Coordinate Bench of this Court in a batch of writ petitions led by W.P (S) No. 315/2016. Three issues were framed for consideration by the court inter-alia as under:

11. This Court, therefore, is required to answer following issues: (I).Whether the writ petitioners, who are working as para teachers on contract basis under a scheme, are entitled for regularization in service?

(II).Whether the petitioners-para teachers can be held entitled for pay-scale at par with the regular Assistant teachers on the principle of 'equal pay for equal work'?

(III).Whether the writ petitioners who are working as para- teachers, in alternative, are entitled to get minimum of pay-scale?

3. These issues have been answered by the Coordinate Bench of this Court in the following manner:

23. ........................................................................ It is, thus, evident from perusal of the judgments about the parameters to be exercised by the High Court sitting under Article 226 of the Constitution of India that there cannot be any direction under Article 226 of the Constitution of India for regularizing the services by issuing command upon the State instrumentalities. The law has already been settled in the case of Uma Devi (3). Admittedly, herein the writ petitioners have been appointed on contract basis, as would appear from their appointment letters issued in favour of one or the other petitioners based upon the scheme known as 'Sarva Shiksha Abhiyan'.

The question of their regularization merely because they have rendered long years of service is the main ground of the writ petitioners. The writ petitioners since has accepted the terms and conditions of the appointment which is contractual in nature on the payment of fixed honorarium of Rs. 5100/- with enhancement of Rs.500 on expiry of every three years, according to considered view of this Court there cannot be any direction for their regularization for the following reasons:

(a). Admittedly, the writ petitioners have been appointed under a scheme floated by the Central Government in collaboration with State Government, financial burden of which is being borne by the Centre and State at present in the ratio of 60:40. The purpose to launch scheme is to universalize the elementary education across the country and for that purpose para teachers have been decided to be engaged on contract basis to impart education to the children in the age group of 6 to 14 years. Since the basic feature of the scheme is to universalize the elementary education under the scheme under which the writ petitioners have been appointed as para teachers and they have accepted the terms and conditions of appointment as also honorarium which they have started to receive and same is being received by them. Since the writ petitioners have been appointed on contract under a scheme and as such no legal vested right has been conferred to the writ petitioner to stake claim for regularization of their services in view of the position of law having been settled by Hon'ble Apex Court in the case of Government of Andhra Pradesh & Ors Vs. K. Brahmanandam & Ors (supra) that there cannot be command by the High Court in

exercise of power conferred under Article 226 of the Constitution of India for issuance of direction upon the State instrumentalities for their regularization.

(b). The writ petitioners also cannot be regularized for the reason that they are not subjected to the recruitment process which is being subjected to the regular Assistant Teachers at the time of fulfilling the permanent vacancies of the cadre rather the petitioners are being appointed at Panchayat Level or Block Level by Village Education Committee and candidate is being called for the local area and as such they are not being subjected to the due recruitment process. Hence, on this ground also they cannot be regularized in service.

(c). The parameter has been fixed by the Hon'ble Apex Court in the case of Uma Devi (3) as under paragraph 53 thereof stipulating the condition of regularization and the condition that the appointment must be made against the sanctioned post but it is admitted case that the writ petitioners are not appointed against sanctioned post, rather they are the contractual engagee under a scheme. Once an appointee is appointed under a scheme there is no question of considering them to be appointed against the sanctioned post and thereby they are not fulfilling the criteria fixed by Hon'ble Apex Court in the case of Uma Devi (3) (supra). Further reason is that there is non-observance of mandate of Article 16 of the Constitution of India since there is no wide inviting applications to all concerned who are eligible to be considered and if ignoring such candidates the services of the writ petitioners will be regularized the other candidates will be subjected to discrimination and a fair chance to participate in the process of selection. The scheme (SSA) since is under joint collaboration of Centre and State and financial burden is being borne to the extent of 60:40 and in that view of the matter also there cannot be direction by the High Court sitting under Article 226 of the Constitution of India for their regularization of their services on the ground of financial constraint as taken by the State. ............................................................................... This Court on the basis of the aforesaid reasoning coupled with the judicial pronouncements, as referred above, is of the view that the writ petitioners are not entitled for regularization in service. Issue no. I is decided accordingly.

25. This Court as per the discussions made herein above is of the view that the writ Court sitting under Article 226 of the Constitution of India cannot issue direction upon the State to extend the benefit to the writ petitioners for granting 'equal pay for equal work'.

26. Accordingly, issue II is decided against the petitioners.

27. Issue No. (III).This issue pertains to - Whether the writ petitioners who are working as para-teachers, in alternative, are entitled to get minimum of pay-scale?

This Court before entering into the issue requires to refer herein that the writ petitioners have tried to impress upon the Court first for regularization of their services and in case of no regularization then payment on the basis of principle of 'equal pay for equal work' and if same is being denied then at least to pay the minimum of pay-scale.

Thus, the writ petitioners are before this Court for one or other prayer and not for specific prayer.

The issue of minimum of pay-scale whether the petitioners are entitled for the same or not is required to be considered on the basis of its principle of its applicability.

29. This Court on the basis of discussions made hereinabove is of the view that the writ petitioners are also not entitled for minimum of pay-scale."

4. In view of the specific pronouncement by the Court on all the three issues raised for consideration, nothing survives for adjudication in the present writ petition. It is accordingly dismissed.

(Aparesh Kumar Singh, A.C.J)

(Deepak Roshan, J) Ranjeet/