Jharkhand High Court
Ashutosh Kumar Mishra vs The State Of Jharkhand on 13 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 1531 of 2022
1. Ashutosh Kumar Mishra
2. Naresh Kumar Yadav --- --- Petitioners
Versus
1. The State of Jharkhand
2. The Chief Secretary, Govt. of Jharkhand
3. Principal Secretary / Secretary, Department of Personnel, Rajbhasha &
Administrative Reforms, Govt. of Jharkhand
4. The Principal Secretary, Department of Human Resource Development,
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 --- --- Respondents
---
CORAM: Hon'ble The Acting Chief Justice
Hon'ble Mr. Justice Deepak Roshan
---
For the Petitioner: Mr. Pankaj Kr. Choudhary, Advocate
For the Resp.-State: Mr. M.K. Mehta, A.C to G.P-VI
For the Resp.-JEPC: M/s Krishna Murari, Raj Vardhan, Advocates
---
06 / 13.02.2023 Writ petition was preferred with the following prayer.
I. To regularize the services of these petitioners as per the seniority
by the State of Jharkhand / Deputy Commissioner concerned
considering sufficient vacancy of teachers in different schools of
Jharkhand from Primary level to Middle level in all districts of
Jharkhand as they are working since 8 to 15 years as Para Teacher
in different schools of Giridih District.
II. Further direct the respondents to appoint the petitioners against the
sanctioned post and on the vacant post of Assistant Teachers as
because they have already completed 240 days of continues
service.
III. Further it is prayed that the salary of Para Teachers may kindly be
paid regularly month to month so that they may not put in financial
hardship.
IV. Further respondents may kindly be directed to pay the salary of the
Para Teachers equivalent to salary paid to other Assistant
Teachers, other allowances in which these Para Teachers are
working in the schools where they are working as Para Teachers in
the same capacity in which Assistant Teachers are working holding
the same qualification and they passed the Teacher Eligibility Test
Examination working as Para Teacher conducted by Jharkhand
Academic Council, Ranchi on the sanctioned post of Assistant
Teachers.
V. Further it is prayed that the Rule framed vide notification no. 1632
dated 05.09.2012 is ultra vires and against the constitutional
provision of Articl3e 14, 16 and 21 of the Constitution of India and
against the Principle of Natural Justice.
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/
