Jaipati Mandal vs The State Of Jharkhand
2023 Latest Caselaw 775 Jhar

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    W.P (S) No. 2111 of 2017

             1. Jaipati Mandal
             2. Sanjay Kumar Mahato
             3. Md. Sujaddin
             4. Ashim Kumar Lodh
             5. Arun Kumar
             6. Tara Prasad Mahto
             7. Pradeep Kumar Mahto
             8. Maheshwar Prasad Mahto
             9. Bharat Lal Mahto
             10. Lalan Prasad Mahato
             11. Hira Lal Mahto
             12. Ajit Kumar Mahto
             13. Nageshwar Prasad Mahto
             14. Md. Iqubal
             15. Md. Rehan Ansari
             16. Mahendra Kumar Choubey
             17. Ramsewak Mahto
             18. Maheshwar Gope
             19. Sudhanshu Kumar Mehta
             20. Purnendu Narayan Mandal                   ---    ---    Petitioners
                                              Versus
              1. The State of Jharkhand
              2. The Chief Secretary, Govt. of Jharkhand
              3. Principal Secretary, Department of Personnel, Rajbhasha &
                 Administrative Reforms, Govt. of Jharkhand
              4. The Principal Secretary, Human Resources Development Department, Govt.
                 of Jharkhand
              5. The Director, Primary Education (Directorate of Education), Human
                 Resources Development Department, Govt. of Jharkhand
              6. The Director, Jharkhand Education Project Council, Ranchi
              7. The Deputy Commissioner, Dhanbad
              8. The Deputy Superintendent Education, Dhanbad
              9. The Regional Deputy Director Education, Dhanbad --- --- Respondents
                                                     ---

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

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For the Petitioner: Mr. Naresh Pd. Thakur, Advocate For the Resp.-State: M/s Mrinal Kanti Rot, G.A-1 Rakesh Ranjan, A.C to G.A-1 For the Resp.-JEPC: M/s Krishna Murari, Raj Vardhan, Advocates

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06 / 14.02.2023 I.A. No. 5032/2020 has been preferred by the following petitioners seeking permission to withdraw this writ petition as they have been appointed on the post of Assistant Teacher through regular recruitment.

2. Md. Yakuf Kalal

3. Manoj Kumar Rajwar

7. Nirmal Kumar Roy

15. Triveni Prasad Mahto

20. Hiraman Kumar Mahto

21. Teklal Mahto

2. Learned counsel for the Respondents does not dispute the contention.

3. In view of the prayer made, this writ petition is dismissed as withdrawn in respect of the aforementioned petitioners as they do not have grievances. Let the name of the remaining petitioners be renumbered by the learned counsel for the petitioners in the array of the parties during course of the day. I.A. stands disposed of.

Heard learned counsel for the parties.

4. Writ petition was preferred with the following prayer.

1. That by this writ application, by way of interest of children of Jharkhand who study in Jharkhand government schools from class-I to V and Class VI to VIII para teachers are appointed / engaged by the respective District Authorities i.e. Deputy Commissioner of Dhanbad district of Jharkhand and these para teachers are duly appointed/engaged for teaching in the schools of Jharkhand from Block to District level schools and they have duly passed the Teachers Eligibility Test Examination Conducted by Jharkhand Academic Council and they have pass the teacher eligibility test TET examination and they are working since about last 5 - 15 years. Their services be regularised as per their seniority by the State of Jharkhand/Deputy Commissioner concerned considering 1,50,000 (One Lakh Fifty Thousand) vacancy of Teachers in different schools of Jharkhand from Primary level to Middle level in all 24 districts.

Further direct the respondents to appoint the petitioners against the sanctioned post and on the vacant posts of Assistant Teachers on the basis of valid appointment from the post of Para Teacher by following the law constitution and also their service on the post of Asst. Teacher because they have already completed 240 days continuation of service. The petitioner's appointment was made by regular basis on recommendation, Confirmation approval of Deputy Commissioner/Chairman District Education Committee.

Further it is prayed the salary of Para Teachers may kindly be paid regularly month to month so that they may not put in financial hardship.

Further respondent state may kindly be directed to pay the salary of the Para Teacher 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 a Para Teacher conducted by Jharkhand Academic Council, Ranchi on the sanctioned post of Assistant Teachers.

Further it is prayed that the Rule framed vide notification No. 1632 dated 05.09.2012 (Annexure-1) is ultra vires and against the constitutional provision of Article 14, 16, 21 of the constitution of India and against the Principle of Natural Justice depriving the Para Teachers who are

working since last 5 to 15 years. They are fully qualified and they have passed the Teacher Eligibility Test Examination and no provision has been made for regularization of their services as per their seniority the post of Assistant Teachers to Para Teachers of all the 24 districts of Jharkhand.

Further respondent state of Jharkhand through the Chief Secretary, Govt. of Jharkhand/Secretary HRD Govt. of Jharkhand may kindly be directed to call for the Rule/regulation framed by the State of Bihar U.P. M.P. Chhattisgarh, Orissa, Madras, Jammu & Kashmir, Assam and other State Govt. regarding regularisation from the post of para teacher on the vacant post of Assistant Teacher in the Primary/Middle Schools on the basis of seniority and passing the Teacher Eligibility Test Examination the service of para teachers working since 5 to 15 years also be regularised in vacant post of Assistant Teachers from para teacher as per their seniority on the basis of Rules/Regulation framed by the states as stated above and respondent state govt. in the interest of children of the Govt. run Primary/Middle Schools class- I to V and VI to VIII.

Further we also pray before this Hon'ble Court for quashing the part of Memo No. 1632 dated 05.09.2012 issued by the Department of Human Resources (H.R.D.) and Letter No. 1348 dated 13.02.2015 ignoring the claim of Para Teachers who are working since Last 5 to 15 years without break of service issued by Department of Personnel, Rajbhasha and Administrative Reforms Govt. of Jharkhand by which the date has been fixed that the Govt. will regularise the services of the persons who completed their service 10 years before 07.10.2006 following the direction given by the Hon'ble Supreme Court of India for regularisation of service mentioned in the order passed by the Hon'ble Supreme Court of India.

5. 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?

6. 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."

7. 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/