Pawan Kumar vs The State Of Jharkhand
2024 Latest Caselaw 5149 Jhar

Jharkhand High Court

Pawan Kumar vs The State Of Jharkhand on 10 May, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(S) No. 541 of 2018
                                            .....

           Pawan Kumar                                  ..... Petitioner
                                    Versus

1.The State of Jharkhand, through the Secretary, Department of Urban Development and Housing, having office at Project Building, Dhurwa, P.O. and P.S. Dhurwa, Town and District- Ranchi.

2.The Deputy Commissioner, Hazaribagh District, having office at P.O, P.S. & District- Hazaribagh.

3.Hazaribagh Municipal Corporation through its Executive Officer having office at P.O, P.S. & District-Hazaribagh.

..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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           For the Petitioner               : Mr. Manoj Tandon, Adv
           For the Respondent              : Mr. Manish Kumar, Sr. S.C.-II
                                           : Ms. Sunita Kumari, A.C. to Sr. S.C.II
                                                        ---------
16/Dated: 10th May, 2024
                  Heard learned counsel for the parties.

2. The instant writ application has been preferred by the petitioner for the following reliefs:

(i) To quash and set aside the order contained in Memo No. 17 dated 13.08.2017 (Annexure-27) issued under the pen and signature of respondent no.2, whereby and whereunder the case of the petitioner for absorption in Department of Urban Development & Housing in view of the order of this court in W.P.(S) No. 1464 of 2006 has been rejected.

(ii)To direct the respondents to give effect to the decision of cabinet taken on 15.04.2015 (Annexure-21) which includes the list of employees including the petitioner of Mines Board Hazaribagh for absorption in Department of Urban Development and Housing.

(iii) To direct the respondent particularly respondent no.1 to regularize the petitioner in the services in the concerned department in light of the judgment passed in W.P.(S) No. 1464 of 2006.

(iv) To also direct the respondents to pay the admissible salary to the petitioner and as well as regularize the petitioner with all consequential benefits.

(v)Cost of litigation.

3. The brief facts of the case as disclosed in the writ petition is that the petitioner was appointed on the post of Assistant Engineer on daily wage basis under Memo No.319A dated 02.11.1991, however, he was regularized on the vacant post of Junior Engineer by the Chairman, Hazaribagh Mines Board under Memo No.729 (A)

dated 05.10.1993. The pay scale given to the petitioner was Rs.1500-2750/-.

It further reveals that one Sri Surendra Prasad Singh was posted as Executive Engineer-in-Charge in the Hazaribagh Mines Board, but since he was due to retire on 30.11.2001, he gave the charge of In-Charge Executive Engineer on 24.11.2001 to the petitioner who took over such charge on 30.11.2001. Such posting of the petitioner on the post of In-Charge Executive Engineer was confirmed by the Secretary, Mines Board, Hazaribagh by Memo No.82 dated 10.04.2002. However, the said order dated 10.04.2002 was recalled on 10.05.2002.

When the salary was not being paid to the petitioner, he moved before this Court by filing the writ application being W.P.(S) No.4059 of 2004 and the Mines Board was directed to pay the salary of the petitioner as soon as the fund is received (Annexure-

14).

On 03.04.2005, the petitioner was terminated from service along with several others on the ground that they were working on daily wage basis. The petitioner challenged his order of termination by filing W.P.(S) No.1464 of 2006 and during the pendency of the writ petition, the State of Jharkhand through a meeting of the Cabinet took a decision on 15.04.2015 (Annexure-21) to regularize/absorb the services of the employees including this petitioner. Pursuant thereto; the said writ petition was taken up on 09.09.2016 and the order of termination was set aside with a direction to the respondents to take a decision in the light of the Cabinet decision dated 15.04.2015 (Annexure-22).

The petitioner, thereafter, made a representation on 21.09.2016 enclosing the order passed by this Court. Pursuant thereto; a detailed report dated 16.12.2016 was submitted by the Deputy Commissioner, Hazaribagh to the Principal Secretary, Urban Development Department, Government of Jharkhand (Annexure-24). When the order of this Court was not complied with, this petitioner filed a Contempt Petition being Cont. Case (Civil) No.151 of 2017. In the Contempt Application a show cause reply was filed annexing Resolution No.3208 dated 15.06.2016. The reasoned order dated 13.08.2017 issued under Memo No.17

was also brought on record whereby the claim of petitioner was rejected for regularization. Hence this writ petition has been preferred.

4. Mr. Manoj Tandon, learned Counsel for the petitioner submits that from the counter affidavit filed on 31.01.2024 by State it appears that the name of this petitioner appears at Sl. No.2 and that of one Sushil Kumar at Sl. No.1. It is further evident from the said document that Sushil Kumar has been shown as Assistant Engineer and his date of appointment is 30.11.1997. As against this petitioner it is reflected that he was Assistant Engineer and the date of appointment is 05.10.1993. Admittedly; Shri Sushil Kumar has been regularized, whereas this petitioner has not been regularized.

Learned Counsel contended that a person who joined four years after this petitioner has been regularized; whereas the petitioner has been discriminated. The discrimination is on the ground that the services of the petitioner was terminated. However, the fact remains that the order of termination of this petitioner was set aside by the order of this Court dated 09.09.2016.

Learned counsel further submitted that the Cabinet decision dated 15.04.2015 is binding on the respondents as the same has never been recalled and it appears that for some unknown reasons despite the decision of the Cabinet, the respondents are not complying the same.

He strongly contended that once the termination order was set aside by this Court on 09.09.2016 by an order passed in W.P.(S) No. 1464 of 2006, the petitioner stood reinstated in service and he is entitled for all consequential benefits.

5. Mr. Manish Kumar, Sr. S.C.-II representing the respondents submits that the memo dated 05.10.1993 was issued under the signature of the Chairman of Hazaribagh Mines Board regularizing the petitioners on the post of Junior Engineer. But the said letter was issued by the then Chairman but it was never done by the Mines Board as required under the Mines Board Act. He contended that the power for appointments under the Hazaribagh Mines Board is contemplated under Section 11 of the Hazaribagh Mines Board Act, 1936. Section 11 mandates that the Board may

determine and appoint in the establishment and fix the salary or remuneration of the member.

Learned Counsel further submits that it is true that the matter of absorption of Hazaribagh Mines Board employees was sent to the cabinet and same was approved by the cabinet on 15.04.2015; however, after receipt of the file from the cabinet department, the Urban Development and Housing Department found some irregularities in the proposed list of absorption of Hazaribagh Mines Board employees. The name of terminated/dismissed employees including the petitioner also appeared in the proposal list of absorption.

Hence, the Urban Development and Housing Department took action against the responsible officers and employees and issued show cause vide letter no. 1784 dated 18.05.2015. On the other hand, the Department rectified the proposed list submitted by the Dy. Commissioner-cum-Chairman of Hazaribagh and the same was again sent to the cabinet for the approval and cabinet approved the rectified proposal list on 15.06.2016. Accordingly, no case is made out in favour of the petitioner.

6. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it appears that the petitioner joined his service as daily wage employee and by Memo No. 729-A dated 05.10.1993 issued under the signature of Chairman of Mines Board, the petitioner was regularized on the post of Junior Engineer.

Admittedly, the regularisation was not issued by the Mines Board as required under the Mines Board Act. The power for appointment under the Hazaribagh Mines Board is contemplated U/s 11 of the Hazaribagh Mines Board Act, 1936. Section 11 mandates that the Board may determine and appoint in the establishment and fix the salary or remuneration of the member. In the instant case it is evident from Memo No. 729-A that the same was not complied with. The chairman of the Board had no authority, what so ever, to regularize the service of the employee, as such the service of the petitioner was never regularized.

7. Further, after creation of state of Jharkhand, the State

Govt. has framed new act namely Jharkhand Municipal Act, 2011, which came into force w.e.f. 09.02.2012, and on consideration of absorption of employees of Hazaribagh Mines Board it has come to light that most of the employees serving under the Mines Board have not been recruited as per norms of the state government.

8. It further transpires from record that the service of the petitioner was terminated vide memo 427 dated 03.04.2005 on the ground of long absenteeism and irregularity committed by him; thereafter, the petitioner challenged the termination order by filing W.P.S No. 1464 of 2006 and during the pendency of the writ petition the matter of absorption of Hazaribagh Mines Board Employees was sent to the Cabinet and the same was approved by the Cabinet on 15.04.2015.

It is noteworthy to specify here that the proposed list of employees for absorption contained the names of the terminated/dismissed employees including the name of petitioner which is against the jurisprudence of the service law that a terminated employee cannot be absorbed without being reinstated. When the Urban Development and Housing Department found such irregularities in the proposed list, it was rectified which was again sent to the cabinet for approval and the rectified proposed list was approved on 15.06.2016.

As such, the ground taken by the petitioner that his name was in the approved cabinet list for absorption has no legs to stand in the eye of law as the Cabinet had passed a rectified absorption list of employees on 15.06.2016 thereby superseding the previous decision.

9. At this stage it is also pertinent to mention here that from the order passed in W.P.(S) No. 1464 of 2006 it appears that this Court quashed the termination order dated 03.04.2005 and letter dated 12.04.2005 on the basis of the first Cabinet decision dated 15.04.2015. Relevant paragraph of the order is quoted herein below:

"8. In view of the facts stated hereinabove, proposal of absorption of employees of Hazaribagh Mines Board, which has already been approved by the Cabinet vide its decision dated 15.04.2015, it would be in the fitness of things to set at naught the impugned orders dated 03.04.2005 (Annexure-13) pertaining to termination of services and the letter dated 12.04.2005 (Annexure-14) so that the

case of the petitioners can be decided afresh. Therefore, the impugned orders under Annexures-13 and 14 are quashed and set aside and the matter is remitted to the respondents to take expeditious decision in view of the decision of the Cabinet dated 15.04.2015 for absorption of the petitioner."

From bare perusal of the aforesaid order, prima facie it appears that the decision of the second Cabinet meeting wherein the rectified list for absorption of employees was approved by the Cabinet was never brought on record by the then learned counsels even though the rectified list was approved on 15.06.2016 and the order was pronounced much later i.e. on 09.09.2016.

Maybe, it was not suppression on behalf of the petitioner, but the fact remains that the rectified Cabinet decision was never brought to the notice of the Court. Therefore, the ground that the petitioner stood reinstated in service and he is entitled for all consequential benefits from the date of order is unfounded.

10. In view of the aforesaid discussions, I find no merit in the instant writ application and accordingly the same is dismissed, however, there is no order to cost. Pending I.A., if any, is also closed.

(Deepak Roshan, J.) Amardeep/