Lalit Prasad Saw vs The State Of Jharkhand
2023 Latest Caselaw 998 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W. P. (S) No. 6485 of 2022
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1. Lalit Prasad Saw S/o Nakul Chandra Saw, R/o Village Madaidih, PO Madaidih, PS Topchanchi, Dist. Dhanbad (Jharkhand)

2. Arun Kumhar, S/o Badri Kumhar, R/o Village Kamta, PO Madaidih, PS Topchanchi, Dist. Dhanbad (Jharkhand)

3. Santosh Kumar Mahto, S/o Bhushan Chandra Mahto, R/o Village Nero Gadidih, PO Brahmandiha, PS Topchanchi, Dist. Dhanbad (Jharkhand)

4. Suresh Kumar Mahto, S/o Tulsi Mahto, R/o Kamta, PO Madaidih, PS Topchanchi, Dist. Dhanbad (Jharkhand) ... ... Petitioners Versus

1. The State of Jharkhand

2. The Chief Secretary, Govt. of Jharkhand, Dhurwa, Ranchi, Jharkhand

3. The Principal Secretary, Department of Personnel, Rajbhasha and Administrative Reforms, Govt. of Jharkhand, Dhurwa, Ranchi, Jharkhand

4. The Principal Secretary, Human Resources Development Department, Govt. of Jharkhand, Dhurwa, Ranchi, Jharkhand

5. The Director, Primary Education (Directorate of Education), Human Resources Development Department, Govt. of Jharkhand, Nepal House, Dhurwa, Ranchi

6. The Director, Jharkhand Education Project Council, New Co- Operative Building Shyamli, Doranda, Ranchi, Jharkhand

7. The Deputy Commissioner, Dhanbad, Jharkhand

8. The Deputy Superintendent Education, Dhanbad, Jharkhand The Regional Deputy Director Education, Dhanbad, Jharkhand ... ... Respondents

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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY

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For the Petitioners: Mr. Naresh Prasad Thakur, Advocate For the State : Mr. Niraj Kumar Mishra, AC to GP IV For the JEPC:Mr. Raj Vardhan, AC to Mr. Krishna Murari, Advocate

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Order No. 04/Dated 1ST March, 2023

Upon hearing the learned counsel for the State, the Court made the following order, (per S.K. Mishra, C.J.)

2. In this writ application, the petitioners have prayed for the following relief:

"For issuance of an appropriate writ(s)/order(s)/direction(s) from the Hon'ble Court commanding upon the concerned respondent for

regularization of the services of the petitioners in the post of Para Teacher now designated as Asst. Teacher, who have been appointed/engaged by the respective District Authority i.e. Deputy Commissioner of Dhanbad, State 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 passed the Teacher Eligibility Test (TET) Examination and they are working since about last 5-15 years. Their services be regularized as per their seniority by the State of Jharkhand/Deputy Commissioner concerned considering a number of vacancy of Teachers in different schools of Jharkhand from Primary level to Middle level in all 24 districts.

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

And further respondent State may kindly be directed to pay the salary of the Para Teachers now designated as Asst. 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.

And further it is prayed that the Rule framed vide notification No. 1632 dated 05.09.2012 (Annexure

2) is ultra virus 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/Asst. Teachers who are working since last more than 14 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 district of Jharkhand.

And 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, Assam and other State Govt. regarding regularization 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 more than 14 years also be regularized in vacant post of Assistant Teachers from Para Teachers 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 Primacy/Middle Schools Class I to V and VI to VIII."

3. At the outset, learned A.C. to G.P. 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. Naresh Prasad Thakur, 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.)

(Rongon Mukhopadhyay, J)

R. Shekhar/ -

A.F.R.