Umesh Kumar vs 2. The Chief Secretary
2023 Latest Caselaw 1118 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(S) No. 4577 of 2019

     1.   Umesh Kumar
     2.   Ramesh Kumar Pandey
     3.   Kameshwar Mandal
     4.   Ananta Kumar Mandal
     5.   Manohar Mukherjee
     6.   Madan Mohan Mahato
     7.   Khemchand Mahto
     8.   Laldhan Das                                           ....     ....      Petitioners
                                    -Versus-
      The State of Jharkhand
     1.
   2. The Chief Secretary, Government of Jharkhand, Ranchi.
   3. The Principal Secretary/Secretary Department of Personnel, Rajbhasha &
      Administrative Reforms, Govt. of Jharkhand, Ranchi.
   4. The Principal Secretary, Human Resources Development Department,
      Govt. of Jharkhand, Ranchi.
   5. The     Director, Primary Education, Human Resources Development
      Department, Govt. of Jharkhand, Ranchi.
   6. The Director, Jharkhand Education Project Council Project, New Co-
      operative Building, Doranda, Ranchi.
   7. The Deputy Commissioner, Dhanbad.                 ....  .... Respondents
                                       -----

CORAM         :        HON'BLE THE CHIEF JUSTICE
                    HON'BLE MR. JUSTICE ANANDA SEN
                                       -----
For the petitioner(s)    : M/s Binod Kumar Jha & Sanjay Kr. Thakur, Advocates
For the State:           : Mr. Mithilesh Singh, GA-IV
                           Mr. Anuj Burman, AC to GA-IV
For JEPC                 : M/s Krishna Murari & Raj Vardhan, Advocates.
                                       -----
06/ Dated: 15.03.2023

Upon hearing the learned counsel for the parties, the Court made the following order, (per Ananda Sen, J.)

2. This writ petition has been preferred for the following reliefs:-

That by this writ application, by way of interest of children of Jharkhand who study in Jharkhand government schools from class-I to Class-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 - 17 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.

2.

Further direct the respondents to appoint the petitioners against sanctioned post on the vacant post of Assistant Teachers on the basis of valid appointment from the post of Para Teachers by following the law constitution and also their service on the post of Asst. Teachers because they have already completed 240 days continuation of service. The petitioners 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 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 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 is ultra vires and against the constitutional provision of Articles 14, 16, 21 of the Constitution of India against the Principle of Natural Justice depriving the Para Teachers who are working since last 5 to 17 years, they are fully qualified and they have passed the Teacher Eligibility Test Examination and no provision has been made for regularization of the 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/regulations 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 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 17 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 Class VI to VIII.

Further we also pray before this Hon'ble Court for quashing the part of Memo No. 1632

dated 05.09.2012 (Annexure-2 to this writ application) 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 17 years without break of service, the said letter issued by Department of Personnel Administrative Reforms and Rajbhasa 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.

3. At the outset, learned G.A.-IV, as well as the counsel for respondent no. 6 ( JEPC) have submitted that the issues, which have been raised in this writ petition have already been settled in W.P.S. No. 315 of 2016 vide judgment dated 16.12.2022.

4. Mr. Binod Kumar Jha, learned counsel for the writ petitioners, has not seriously objected to the aforesaid contentions.

5. In W.P.S. No. 315 of 2016, the issues framed for consideration were as under:-

(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. The aforesaid issues were decided 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 fact that the issues raised by the writ petitioners in the present application have already been settled by a Coordinate Bench of this Court, as noted above, nothing survives in this writ petition, which is accordingly dismissed.

(S.K. Mishra, C.J.)

(Ananda Sen, J.) Anu/-