Rajesh Kumar vs The State Of Jharkhand
2023 Latest Caselaw 552 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P (S) No. 5034 of 2019

1. Rajesh Kumar
2. Prayag Mandal
3. Rajkishore Mandal
4. Saryoo Kumar
5. Priya Ranjan Kumar
6. Niraj Kumar
7. Vivekanand Prasad
8. Kiran Verma
9. Pankaj Kumar Kushwaha
10. Sita Ram Nayak
11. Gobardhan Ram
12. Prakash Kumar Verma
13. Ram Prasad Mandal
14. Basant Kumar
15. Dashrath Prasad
16. Vinay Kumar
17. Barun Kumar
18. Dharmendra Kumar
19. Raju Mohali
20. Pramod Kumar Sinha
21. Ajay Kumar
22. Premchand Yadav
23. Sri Niwas Srotey
24. Mahendra Prasad Mandal
25. Reena Kumari
26. Wahid Ali
27. Mahendra Prasad
28. Manjuri Kumari
29. Santosh Kumar Mandal
30. Bhuneshwar Kumar Mahto
31. Loknath Sharma
32. Kailash Pati Choudhary
33. Surendra Prasad
34. Birendra Prasad
35. Rameshwar Mahto
36. Gautam Kumar Mandal
37. Saheb Ram Tudu
38. Telkal Prasad Mahto
39. Baijnath Kumar
40. Ravi Shankar Mahato
41. Ravi Kumar
42. Jageshwar Mahto
43. Ajay Kumar
44. Mahesh Prasad
45. Hemant Kumar
46. Mahendra Paswan
47. Suresh Kumar Mahto
48. Lakhan Paswan                           ---   ---    Petitioners
                               Versus
1. The State of Jharkhand
2. The Chief Secretary, Govt. of Jharkhand
3. Principal Secretary, Department of Personnel, Rajbhasha &
                                                   2



                  Administrative Reforms, 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, Giridih
              8. The Deputy Superintendent Education, Giridih
              9. The Deputy Commissioner, Hazaribagh
              10. The Deputy Superintendent Education, Hazaribagh
              11. 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: M/s Vandana Singh, Sr. S.C-III Rashmi Lal, A.C to Sr. S.C-III For the Resp.-JEPC: Mr. Krishna Murari, Raj Vardhan, Advocates

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06 / 02.02.2023 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 India as because no provision has been made for regularisation / adjustment 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-8) 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 / adjustment 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 / adjustment 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 VIII, 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 / adjustment 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 petitioners 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/