Jharkhand High Court

Md. Rashid vs The State Of Jharkhand on 19 February, 2024

Author: Rajesh Shankar

Bench: Rajesh Shankar

                                 1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(S) No. 602 of 2019
                             ---

1. Md. Rashid

2. Rashmi Murmu

3. Amit Kumar Pandey

4. Manohar Roy

5. Sarita Devi

6. Rukshana Parween ... ... Petitioners Versus

1. The State of Jharkhand

2. The Principal Secretary, Department of School Education and Literacy, Government of Jharkhand, Ranchi

3. The State Project Director, Jharkhand Education Project Council, Ranchi

4. The Deputy Commissioner, Sahebganj

5. The District Superintendent of Education-cum-District Programme Officer, Sahebganj .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners : Mr. Rishu Ranjan, Advocate Mr. Ankit Sinha, Advocate For the Resp.-State : Mr. Anshuman Kumar, A.C. to S.C.(L&C)-II For the Resp.-JEPC : Mr. Krishna Murari, Advocate

Order No. 08 Dated: 19.02.2024

The present writ petition has been filed for issuance of

direction upon the concerned respondents to regularize the

services of the petitioner nos. 1 to 4 on the post of Accountant-

cum-Computer Operator, the petitioner no. 5 on the post of

Cook and the petitioner no. 6 on the post of Science Teacher as

they have been working for more than 10 years on the said

posts on fixed remuneration in Kasturba Gandhi Residential Girls

School situated in different Blocks of Sahebganj district.

2. Learned counsel for the petitioners submits that in the

light of instruction issued by the respondent no. 3 vide letter no.

320 dated 09.05.2008, an advertisement was issued on

12.07.2008 under the joint signature of Deputy Commissioner-

cum-Chairman, Jharkhand Education Project, Sahebganj and

District Programme Officer, Jharkhand Education Project,

Sahebganj whereby applications were invited for appointment

on different posts including the posts of Science Teacher,

Accountant-cum-Computer Operator and Cook in Kasturba

Gandhi Residential Girls School situated in three different Blocks

of the district-Sahebganj on contract basis under the scheme

"Sarva Shiksha Abhiyan". Pursuant to the said advertisement,

the petitioner nos. 1 to 4 applied for the post of Accountant-

cum-Computer Operator, petitioner no. 5 applied for the post of

Cook and the petitioner no. 6 applied for the post of Science

Teacher. All the petitioners were finally selected on their

respective posts and accordingly were appointed on fixed

remuneration. The services of the petitioners were also

extended from time to time by the respondent authorities.

3. It is further submitted that since the petitioners have

been working on their respective posts for more than 10 years,

they made representations before the respondent authorities for

regularization of their services, however no action was taken on

the same.

4. It is also submitted that the petitioners have been

working against the vacant posts on fixed remuneration for

more than 10 years and all of them possess minimum

qualification required for appointment on the posts in question.

Thus, they deserve to be regularized in view of the ratio laid

down by the Hon'ble Supreme Court in the case of Narendra

Kumar Tiwari & Others Vs. The State of Jharkhand &

Others reported in (2018) 8 SCC 238.

5. Learned counsel for the petitioners further submits that

since the petitioners have been discharging similar duties as

being performed by the regular appointees working on similar

posts, they are also entitled to receive same salary on the

principle of 'equal pay for equal work'.

6. On the contrary, learned counsel appearing on behalf of

the respondent- Jharkhand Education Project Council (JEPC)

submits that admittedly the petitioners were engaged on their

respective posts on contractual basis as per the guidelines of the

scheme-"Sarva Shiksha Abhiyan" issued by the respondent-

JEPC. The petitioners are being paid consolidated

emoluments/honorarium and their contractual engagement can

be terminated any time after giving one-month prior notice or

on closer of the scheme.

7. It is further submitted that JEPC is a need-based

society and its existence and programme are dependent upon

the funds being made available by the Central Government as

well as the State Government. In the said programme, the share

of the Central Government is 60% whereas the share of the

State Government is 40%. JEPC itself is temporary in nature and

therefore it cannot engage any of its employees on permanent

basis. In fact, their engagement will continue till the scheme of

'Kasturba Gandhi Residential Girls School' continues.

8. It is also submitted that the petitioners have not been

appointed, rather they have been engaged on contractual basis

under the said scheme. They have also not been working on

daily wage basis against sanctioned and vacant posts, rather,

are engaged under a scheme namely "Sarva Siksha Abhiyan".

The petitioners have been engaged under the said scheme

floated by Government of India which is substantially funded by

it, however the Government of India has not been made party in

this writ petition and hence the writ petition otherwise suffers

from non-Joinder of necessary party.

9. Heard learned counsel for the parties and perused the

materials available on record.

10. Thrust of the argument of learned counsel for the

petitioners is that the petitioners have completed more than 10

years of continuous service under JEPC on their respective posts

on which they were appointed and as such they are entitled to

be regularized in service. The further contention on behalf of the

petitioners is that they are entitled to be paid equal salary to

that of the regular employees of the State Government working

on the same/similar posts.

11. The said argument of learned counsel for the

petitioners has been refuted by learned counsel for the

respondent-JEPC by submitting that the petitioners have been

appointed purely on contractual basis under the scheme -"Sarva

Siksha Abhiyan" which is funded by the Central Government and

State Government in the ratio of 60% and 40% respectively and

as such they are not entitled to be regularized on the said posts.

12. To appreciate the contentions of learned counsel for the

respondent-JEPC, I have gone through the judgment rendered

by learned Division Bench of this Court in the case of Sunil

Kumar Yadav & Others Vs. The State of Jharkhand &

Others [W.P.(S) No. 315 of 2016] wherein following issues were

framed for consideration: -

(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?

13. In the said case, learned Division Bench decided the

issue no. (i) in following manner: -

"23. ------------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. In this regard, the judgment rendered by Hon'ble Apex Court in State of Uttar Pradesh & Another vs. Anand Kumar Yadav & Ors. [(2018) 13 SCC 560] is required to be referred wherein the issue fell for consideration seeking regularization of teachers who are being appointed under SSA has been negated and the version of the High Court has also been affirmed by the Hon'ble Supreme Court, relevant paragraph of which is quoted as under:

"29. Further difficulty which stares one in the face is the law laid down by this Court on regularisation of contractually 364 appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularised as teachers. Regularisation could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present

nature."

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.

14. Further, the Issue No. (II) was decided by observing

that though the petitioners were claiming that they were having

the educational qualifications at par with the regular Assistant

Teachers and were also discharging responsibilities as were

being discharged by the regular Assistant Teachers working

under the regular establishment of the State Government, the

State took plea of having no such financial capacity to sanction

the posts and absorb them in service. Moreover, mode of

appointment of regular Assistant Teachers was different from

the petitioners of that case. It was held that the appointment of

regular Assistant Teachers was being made by way of wide

publication of advertisement inviting applications from all eligible

candidates and by conducting written examination followed by

viva voce, if required, whereas in the case of para teachers, no

such process was being adopted. Learned Bench finally decided

the Issue No.(II) against the petitioners of that case.

15. In the case of Anil Ram & Others Vs. The State of

Jharkhand and Others [W.P.(S) No. 4846 of 2022], as has

been relied upon by the learned counsel for the respondent-

JEPC, learned Division Bench of this Court, while referring the

judgment of Sunil Kumar Yadav (supra), also rejected the

claim of regularization of petitioners of the said case who were

appointed as para teachers.

16. I have also gone through the judgment rendered by

learned Division Bench of this Court in the case of Nazir

Ahmad & Others Vs. The State of Jharkhand & Others

(L.P.A No. 858 of 2019) wherein it has been held as under: -

"27. The undisputed fact in this case is that the writ petitioners were appointed sometime in the year 1997 by the erstwhile State of Bihar after issuing the advertisement on contract basis. The writ petitioners have continued and after coming into effect the Bihar

Reorganisation Act, 2000 they have been inducted in the services of the State of Jharkhand and the State of Jharkhand has taken a decision to continue to engage them for rendering their services under a project known as Sarva Shiksha Abhiyan. They are working under the establishment wing as also in a field officer. The advertisement explicitly clarifies the nature of appointment of the writ petitioner i.e. on contract basis. The fact of the nature of appointment on contract is also not in dispute, since, the appointment is based upon the terms and conditions of a memorandum of understanding and when there is a memorandum of understanding the appointment will be construed to be and will be an appointment on contract basis.

28. The writ petitioners have been allowed to continue on contract basis bases upon the continuation in service they have raised their grievance for their regularisation. The grievance having not been redressed by the J.E.P.C. and the State, they have come to this Court by filing a series of writ petitions. The learned Single Judge has dismissed those writ petitions by an impugned order in consequence upon the same the present appeal has been filed.

29. The issue of regularisation has elaborately been dealt with in the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi(3) and Ors. (Supra) the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee (Supra) wherein although the issue was not of the contractual engage, rather, the issue was of daily wagers.

30. The Hon'ble Apex Court while laying down the law has laid down a proposition for putting a restraint upon the backdoor entry, however, by way of one time exercise the engagee who had already been appointed on daily wagers have been directly to be regularise as would appear from paragraph53 of the judgement, as rendered by the Hon'ble Apex Court in Uma Devi (Supra).

31. Here the case is not of the daily wagers; rather, the appointees are on contract under a scheme. The question of regularisation under a scheme cannot be said to be proper for the reason that when scheme is not under the regular establishment of the State Government, then where is the question of inducting

the employees working under a scheme for their regularisation. The question of regularisation can only be considered if the engagees are working directly under the State Government in that way of the matter, the claim can be made for their regularisation if the law so permits.

32. Here, the appointment is based upon the memorandum depending upon certain terms and conditions wherein there is no reflection in the terms and conditions that their services will be regularised merely on the ground that they have been allowed to continue fairly for a long period. The moment the memorandum of understanding has been signed in between the engagee and the employer, i.e. J.E.P.C., and the law is well settled that if an engagement is being made on contract basis the terms and conditions as enshrined in the agreement of the memorandum of understanding will bind parties.

33. This Court, therefore, is of the view that merely because the writ petitioners have been allowed to continue in service fairly for a long period that does not confer any legal vested right to claim regularisation by asking a direction from the High Court in exercise of power conferred under Article 226 of the Constitution of India. The law is well settled that the writ Court in exercise of the power under Article 226 of the Constitution of India cannot issue a mandamus for regularisation. The reference in this regard may be made to the judgement rendered in the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi (3) and Ors. (Supra) the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee (Supra)."

17. Thus, the issue is no more res-integra that a person,

who has been appointed purely on contractual basis under a

particular scheme of the Government, is not entitled to be

regularized in service even after continuous service of more than

10 years. Moreover, such appointee is also not entitled to get

the pay-scale at par with the regular employee on the principle

of 'equal pay for equal work'.

18. In the case in hand, admittedly the petitioners were

appointed on their respective posts in Kasturba Gandhi

Residential Girls School in different Blocks of Sahebganj district

on fixed remuneration purely on contractual basis by the

respondent-JEPC which is the implementing agency of the

scheme - "Sarva Siksha Abhiyan" and is presently known as

"Samagra Siksha Abhiyan". The JEPC is itself a temporary

agency for implementation of the said scheme and is funded by

the Central Government and the State Government in the ratio

of 60% and 40% respectively.

19. Thus, in view of the settled principle of law as laid

down in the aforesaid judgments, the petitioners are not entitled

to be regularized in service on mere ground that they have

continued in service for more than 10 years under JEPC.

20. Learned counsel for the petitioner puts much reliance

on the judgment rendered by the Hon'ble Supreme Court in the

case of Narendra Kumar Tiwari (supra) wherein the

appellants were irregularly appointed employees of the State

Government and were seeking regularisation of their status on

the ground that they had continued in service for more than 10

years. This Court did not grant relief to the appellants by relying

on the judgment of the Hon'ble Supreme Court rendered in the

case of Secretary, State of Karnataka and

Others v. Umadevi and Others reported in (2006) 4 SCC 1

as well as the regularisation rule of the State Government as

they had not worked for 10 years on the cut-off date of

10.04.2006. The matter having travelled to the Hon'ble Supreme

Court, their Lordships held as under: -

"7. The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247] sought to avoid.

8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-

off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.

9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise

-- the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.

10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should

be regularised unless there is some valid objection to their regularisation like misconduct, etc."

21. The fact and circumstance of the present case is quite

different from the aforesaid referred cases as in the present

case, the petitioners are not under the direct appointment of the

State Government, rather they have been engaged on

contractual basis by the JEPC which is an implementing agency

of "Samagra Siksha Abhiyan". Thus, I am of the considered view

that the ratio laid down in the case of Narendra Kumar

Tiwari (supra) will not be applicable in the case of the

petitioners.

22. In view of the aforesaid discussion, the present writ

petition being devoid of merit is, accordingly, dismissed.