Jharkhand High Court
Rajesh Kumar Verma vs The State Of Jharkhand Through ... on 19 November, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 435 of 2024
Rajesh Kumar Verma, aged about 40 years, son of Ganesh Prasad Mahto,
Resident of Shanti Sadan, Kushwaha Chowk, Leda, Village-Leda, P.O Leda,
P.S. Giridih, District-Giridih, Jharkhand.
.... Petitioner/Appellant
Versus
1. The State of Jharkhand through Secretary, Department of Women,
Child Development and Social Security, having its office at Dhurwa,
P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi, Jharkhand.
2. Principal Secretary, Department of Personnel, Administrative Reforms
and Rajbhasa, having its office at Project Building, Dhurwa, Ranchi,
P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi, Jharkhand.
3. Deputy Commissioner, having his office at Giridih, P.O. Giridih, P.S.
Giridih, District-Giridih, Jharkhand.
.... Respondents/Respondents
---------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Appellant :Mr. Indrajit Sinha, Advocate
Mr. Ankit Vishal, Advocate
For the Respondents: :Mr. Aditya Kumar, A.C. to Sr. S.C. 1
---------
Reserved on: 23.10.2024 Pronounced on: 19.11.2024
Per M.S. Ramachandra Rao, C.J.
1. This Letters Patent Appeal is preferred by the appellant challenging the
judgement dated 23.4.2024 of the learned Single Judge in W.P.(S) No.
2083 of 2023.
2. The appellant had filed the said writ petition seeking regularization of
his services on the pretext that he had been continuously working
against the post of Computer Operator for more than ten years and to
absorb him on the sanctioned post of Accounts Clerk as he possesses all
the requisite qualifications for the said post. He also sought a direction
to the respondents to consider the period from the date of initial
appointment for computation of all benefits including the retiral
benefits. Alternatively, he sought a direction to the respondents to make
payment of remuneration/ benefits to him at par with the
remuneration/benefits being granted to the regular employees working
on the post of Accounts Clerk.
3. Admittedly, the appellant was appointed on 25.01.2008 as Computer
Operator in Social Security Cell, Giridih through a letter no. 33 dated
25.01.2008 from 01.01.2008 to 31.03.2008 on payment of daily wages
of Rs.183/- and his services were extended from time to time.
4. On 19.01.2013, an advertisement was issued for filling up the post of
Computer Operator cum Clerk on contractual basis under the Jharkhand
Building and other Construction Workers Welfare Board functioning
under the Chairmanship of the Deputy Commissioner, Giridih.
5. The prescribed qualification for the post was
MCA/BCA/B.Sc.(IT)/B.E. or equivalent or graduate with one year
Diploma in Computer application from a recognized
Institute/University, Hindi typing 30 words per minute, English typing
30 words per minute and minimum one year relevant work experience
post qualification
6. The appellant applied for it and as he possessed the requisite
qualification, he was selected on 31.01.2013 by a Committee headed by
the Deputy Commissioner and two other Members, who were Labour
Superintendent, Giridih and the DIO, Giridih.
7. Though appointment of the appellant as Computer Operator cum Clerk
was for one year only on contractual basis with a condition for its
extension if required, and if his services are found to be satisfactory,
admittedly he has been working continuously since then.
8. The remuneration of the appellant was also later increased to
Rs.16,480/- vide a proceeding dated 17.11.2016 (Annexure-4).
9. According to the appellant, a notification was issued by the Department
of Personnel, Administrative Reforms and Official Language on
20.06.2019 in compliance of the judgement of the Supreme Court in
Narendra Kumar Tiwari and others Vs. State of Jharkhand and
others in Civil Appeals No. 7423-7429 of 2018, and there was an
amendment to the rules made for regularization of services i.e.
Jharkhand Sarkar Ke Adhinasth Aniyamit Rup Se Niyukt Ewam
Karyarat Karmiyo Ki Sewa Niyamitikaran Niyamawali, 2015 ( for
short 'the Rules') to the extent that the cutoff date for calculation of
continuous service for regularization was changed from 10.04.2006 to
20.06.2019.
10. In view of the same, the office of the Deputy Commissioner (District
Social Security Treasury), Giridih issued a letter dated 17.08.2019
directing Joint Secretary, Government of Jharkhand to take immediate
action on the regularization of those employees who have completed 10
years of continuous service till 20.06.2019 in the light of the 2015 rules
and amendment thereof.
11. According to the appellant, an application for regularization was also
received by him and was submitted by him. But no decision thereon
was communicated to him.
12. Thereafter on 25.10.2019, an order was passed by the office of the
Deputy Commissioner cum District Magistrate, Giridih extending the
contractual service of the appellant from 01.04.2019 to 31.03.2020.
13. On 27.03.2021, the Assistant Director, Social Security, Giridih wrote
the Under Secretary, Women Child Development and Social Security
Department informing that a report in relation to the regularization and
improvement of service condition of the personnel working on contract
has been submitted and in that document the name of the appellant
finds place.
14. Thereafter again the services of the appellant were extended from
01.04.2021 to 31.03.2022 by the Annexure-9 order dated 31.07.2021
passed by the office of the Deputy Commissioner cum District
Magistrate, Giridih.
15. Even thereafter, through an order dt.8.7.2022 passed by the same office,
his services were extended from 1.4.2022 to 31.03.2023.
The case of the appellant
16. The appellant relies on Annexure-11-Minutes of Meeting dated
22.7.2022 of Bhakti Sewa Regularization Committee held under the
Chairmanship of Principal Secretary, Finance Department, Jharkhand
which considered service regularization of irregularly appointed
personnel and contends that cases of personnel appointed on the post of
Computer Operator/Data Entry Operator, where such post was not
sanctioned and only the post of clerk was sanctioned, were considered
for regularization; that computer related work was also being done in
addition to the clerical work by such personnel; and therefore certain
computer operators were regularized on the post of clerk, which is a
sanctioned post. He alleges that the appellant was not considered by the
respondents for conferring the said benefit though he possessed all the
requisite qualifications and completed ten years of continuous service
as on 20.06.2019.
17. The appellant contends that the same is arbitrary, whimsical and
unreasonable and that he is also entitled for regularization and
absorption on the sanctioned post of Accounts Clerk since he had
completed ten years of continuous service as on 20.06.2019 as per the
2015 rules and so he is entitled for regularization.
18. According to the appellant, even as per the Minutes of the Meeting
dated 27.6.2022 he is entitled to be regularized on the sanctioned post
of Accounts Clerk even if the post of Computer Operator on which the
appellant was initially appointed was not a sanctioned post, since other
similarly situated persons had been absorbed and regularized.
The stand of the respondents
19. Counter affidavit was filed by the respondent no. 3 in the writ petition
opposing grant of relief to the appellant.
20. The third respondent contended that from the letter dated 25.01.2008
(Annexure-1) the approval was for appointment of petitioner as
Computer Operator in Social Security Cell, Giridih was only from
01.01.2008 to 31.03.2008 on daily wage basis at the rate of Rs.183.00
per day.
21. It is admitted that the appellant was selected for the post of Computer
Operator cum Clerk for one year on 31.1.2013 vide Annexure-2 on
contractual basis with condition that his services will be extended if
required and if his service is found satisfactory.
22. It is also contended that since his initial appointment was on daily wage
basis for 'data entry', and since there is no letter or guideline of
Government regarding regularization of daily wage Computer
Operator, the appellant is not entitled to get absorbed on sanctioned
post of Accounts Clerk as was being sought.
23. It is alleged that Accounts Clerk are selected on the basis of merit
through a common examination conducted by J.S.S.C., J.P.S.C. etc. and
so the appellant does not come under the purview of Annexure-5
notification dated 20.06.2019.
Rejoinder
24. Rejoinder was filed thereto by the appellant contending that he was
appointed on 25.01.2008 on the post of Computer Operator in Social
Security Cell, Giridih and his services were extended from time to time
and the last extension granted was from 1.4.2022 to 31.03.2023 by the
office of the Deputy Commissioner cum District Magistrate, Giridih.
25. The appellant also contended that he is performing the duties and day
to day work of Accounts Clerk as evident from a letter-Annexure-C
dated 25.01.2024 whereby he had prepared the demand requisition for
payment of pension for the month of February, 2024 under the
Centrally Sponsored Scheme.
The judgement of the learned Single Judge
26. The learned Single Judge noted that the appellant had been initially
appointed on daily wage, but subsequently he was appointed on
contractual basis pursuant to an advertisement and the contract of
employment was being renewed from time to time.
27. She also noted that as per the scheme of regularization of the State
Government contained in Circular dated 13.02.2015 and its
modification through a circular dated 20.06.2019(Annexure-5),
regularization was for the persons who were irregularly appointed and
were continuously working for a minimum period of 10 years.
28. But the learned Single Judge held that the scheme for regularization
was not applicable for contractual appointments as the contractual
appointments are not 'irregular' appointments.
29. She also held that the appellant cannot claim that he had worked
continuously from 25.1.2008 since his appointment on daily wages
ended once he was taken into employment on contractual basis
pursuant to advertisement.
30. The learned Single Judge placed reliance on the judgement of the
Supreme Court in Ganesh Digamber Jambhrunkar & Others Vs. The
State of Maharashtra & Ors.1 wherein the Supreme Court had held
that working for a long period on contractual basis does not create a
vested right of regularization.
31. She held that the claim for regularization of the appellant was not
covered by the scheme for regularization as framed by the State and so,
there is no merit in the writ petition.
The instant LPA
32. Challenging the same, this appeal is filed.
33. Counsel for the appellant contended that the judgement relied upon by
the learned Single Judge would not apply to the instant case because the
appellant had the requisite qualifications and was selected through a
selection process pursuant to the advertisement dt. 19.01.2013; and that
the learned Single Judge had failed to consider the fact that services of
2023 Live Law (SC) 801
similarly situated persons like the appellant had been regularized and
the appellant had been discriminated against.
34. Counsel for the State supported the order passed by the learned Single
Judge.
Consideration by the Court
35. We have noted the contentions of the parties and have perused the
record and the order passed by the learned Single Judge.
36. From the facts of the case, there is no dispute that the appellant had
been appointed initially vide Annexure-1 on daily wage basis as
Computer Operator in the Social Security Cell, Giridih for the period
from 01.01.2008 to 31.03.2008 and his services were continued from
time to time.
37. Thereafter, a selection was conducted by the respondents for the post of
Computer Operator cum Clerk on contract basis wherein qualifications
were prescribed. An interview was held by the Deputy Commissioner
and two other Govt. employees of Labour Department on 31.01.2013 in
which the appellant got selected for contractual appointment under the
Jharkhand Building and Other Construction Workers Welfare Board
functioning under the Chairmanship of the Deputy Commissioner,
Giridih as he was found to have fulfilled the qualifications prescribed in
the advertisement.
38. Since then his appointment was being continued and the last of the
extensions granted to the appellant was upto 31.3.2023 and even
thereafter he is continuing.
39. Thus at least from 2008, the respondents were utilizing the appellant's
services as a Computer Operator cum Clerk irrespective of the
nomenclature given - daily wages or contractual.
40. A Constitution Bench in the case of Secretary, State of Karnataka and
others Vs. Uma Devi(3) and others2 held that a regular process of
recruitment or appointment has to be resorted to by the State , when
regular vacancies in posts, at a particular point of time, are to be filled
up; and the filling up of regular vacancies cannot be done in a
haphazard manner or based on patronage or other considerations. The
Supreme Court criticized the Union Government, the State
Governments, their departments and instrumentalities for resorting to
irregular appointments in the lower rungs of the service, without
reference to the duty to ensure a proper appointment procedure through
the Public Service Commissions or otherwise as per the rules adopted
and to permit such irregular appointees or those appointed on contract
or on daily wages, to continue year after year.
While recognizing that there may be occasions when the
sovereign State or its instrumentalities will have to employ persons in
posts which are temporary or on daily wages as additional hands or
(2006) 4 SCC 1
taking them in without following the required procedure to discharge
the duties in respect of the posts that are not needed permanently, the
Supreme Court emphasized that such engagements cannot be used to
defeat the very scheme of public employment.
The Supreme Court held that the High Courts acting under
Article 226 of the Constitution should not ordinarily issue directions for
absorption, regularization, or permanent continuance unless the
recruitment itself was made regularly and in terms of the constitutional
scheme.
It also observed that while directing the appointments,
temporary or casual, be regularized or made permanent, the courts are
swayed by the fact that the persons concerned has worked for some
time and in some cases for a considerable length of time. It is not as if
the person who accepts an engagement either temporary or casual in
nature, is not aware of the nature of his employment and he accepts the
employment with open eyes, though he is not in a position to bargain.
It however envisaged a regularization of services in the following
passage as a one time measure:
"53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa11, R.N. Nanjundappa12 and
B.N. Nagarajan8 and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten
years or more but without the intervention of orders of the
courts or of tribunals. The question of regularisation of the
services of such employees may have to be considered on merits
in the light of the principles settled by this Court in the cases
above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers are being
now employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if any
already made, but not sub judice, need not be reopened based
on this judgment, but there should be no further bypassing of
the constitutional requirement and regularising or making
permanent, those not duly appointed as per the constitutional
scheme." (emphasis supplied)
41. It is shocking that even after the said decision in 2006 of the
Constitution Bench in Uma Devi (3) (2 supra), mandating making of
regular appointments, the appellant was appointed on daily wage on
25.01.2008 on a daily wage of Rs.183/- for the period 01.01.2008 to
31.03.2008 as a Computer Operator in the Social Security Cell, Giridih.
42. The appellant had contended that his services had been extended from
time to time which fact is not disputed by the respondents.
43. Later on 31.1.2013 there was an advertisement issued for the post of
Computer Operator cum Clerk prescribing certain qualifications and the
appellant was interviewed by the Deputy Commissioner, Giridih and
two others and since he fulfilled the qualifications prescribed he was
selected on 31.01.2013. Thereafter also he was continued admittedly
upto the date of filing of the writ petition on 20.04.2023 and even
thereafter on contractual basis.
44. Thus, in violation of the constitutional mandate to make appointment
on regular basis in spite of availability of work from January, 2008 till
February, 2023 and even thereafter, the State of Jharkhand/respondents
appointed the appellant on daily wage basis and later on contractual
basis and are utilizing the services of the appellant. There is no valid
explanation for the same.
45. It is also not in dispute that there were no interim orders obtained by the
appellant from the High Court for continuing him in service in the
period between January, 2008 till the filing of the writ petition in
February, 2023.
46. In Narendra Kumar Tiwari and others Vs. State of Jharkhand and
others3 the Supreme Court considered similar conduct on the part of
the State of Jharkhand of continuing with a regular appointment for
almost a decade after the decision in Uma Devi (3) (1 supra) and held
that the State believes that it was all right to continue with the irregular
(2018) 8 SCC 238
appointments, and whenever required, terminate the services of the
irregularly appointed employees on the ground that they were
irregularly appointed.
It held that this is nothing but a form of exploitation of the
employees by not giving them the benefits of regularization and that
this is precisely what the judgment in Uma Devi (3) (supra) and the
judgment in State of Karnataka Vs. M.L. Kesari4 sought to avoid.
It held that if a strict and literal interpretation, forgetting the
spirit of the decision of the Constitution Bench in Uma Devi (3) (2
supra), is to be taken into consideration, then no irregularly appointed
employee of the State of Jharkhand could ever be regularized since that
State came into existence only on 15.11.2000 and the cutoff date was
fixed as 10.04.2006.
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.
It also opined that it was not good governance on the part of
the State of Jharkhand to short circuit the process of regular
appointments and instead make appointments on an irregular basis.
It held that Regularization Rules must be given a pragmatic
interpretation and if the appellants in that case have completed ten
years of service on the date of promulgation of the Regularization
(2010) 9 SCC 247
Rules, they ought to be given the benefit of the service rendered by
them, unless there is some valid objection to their regularization like
misconduct etc.
The Court specifically directed the State of Jharkhand to
henceforth consider making regular appointments only and dropping
the idea of making irregular appointments so as to short circuit the
process of regular appointments.
47. Admittedly, relying on above decision, Annexure-5 notification dt.
20.06.2019 was issued by the State deciding to regularize the services
of persons irregularly appointed and who had completed ten years of
service and the benefit had been given by the State on 22.07.2022 to
certain Computer Operators.
48. Reading of the Annexure-11 dated 22.07.2022 shows that out of nine
people whose services were regularized, one had been appointed
regularly as Computer Operator cum Data Entry Operator and the other
eight had been appointed without any designation but were made to do
computer related works including typing as at the time of their
appointment there was no post of Data Entry Operator or Computer
Operator and there was only a post of typist. Inspite of the same, the
services of the said persons were regularized by the State on the post of
Clerk, which was a sanctioned post. There is no explanation for this
action by the respondents. The appellant cannot be discriminated
against in this manner by them.
49. The learned Single Judge, in our opinion, erred in holding that the
scheme of regularization framed by the State in 2015 through a Circular
dated 13.02.2015 as modified on 20.06.2019 would not apply in the
case of persons like the appellant because they have been appointed on
contractual basis, which are not irregular appointments.
This is because even the contractual appointment had not been
contemplated in the Service Rules and only regular appointment ought
to have been made as was held in the case of Uma Devi (3) (2 supra).
50. Further the view express by the learned Single Judge that the appellant
had not worked continuously from 25.01.2008 because his appointment
on that date on daily wages ended once he was taken into employment
on contractual basis pursuant to advertisement also is erroneous
because the respondents had utilized the services of the appellant
continuously from 25.1.2008 till date without any break giving
different descriptions of his job - daily wages for some time and later
as contractual appointment.
51. The learned Single Judge ought to have taken note of the observations
of the Supreme Court in Narendra Kumar Tiwari (3 supra) which
specifically dealt with the cases of regularization of daily wage or
contract workers on different posts in the State of Jharkhand and the
observations it had made that continuing with such irregular
appointments for more than a decade after the decision in Uma Devi (3)
(2 supra) is a form of exploitation of the employees by the State and
cannot be countenanced.
52. The stand of the respondents that there are no sanctioned posts of
computer operators also cannot be countenanced for such posts do not
fall from heaven. It is the duty of the State to create such posts if they
are needed. In Nihal Singh v. State of Punjab5, a similar plea was
rejected. The Court held:
"18. Coming to the judgment of the Division Bench of the High Court of
Punjab & Haryana in LPA No. 209 of 1992 where the claims for
regularisation of the similarly situated persons were rejected on the ground
that no regular cadre or sanctioned posts are available for regularisation of
their services, the High Court may be factually right in recording that there is
no regularly constituted cadre and sanctioned posts against which
recruitments of persons like the appellants herein were made. However, that
does not conclusively decide the issue on hand. The creation of a cadre or
sanctioning of posts for a cadre is a matter exclusively within the authority of
the State. That the State did not choose to create a cadre but chose to make
appointments of persons creating contractual relationship only demonstrates
the arbitrary nature of the exercise of the power available under Section 17 of
the Act. The appointments made have never been terminated thereby enabling
various banks to utilise the services of employees of the State for a long period
on nominal wages and without making available any other service benefits
which are available to the other employees of the State, who are discharging
functions similar to the functions that are being discharged by the appellants.
19. No doubt that the powers under Section 17 are meant for meeting the
exigencies contemplated under it, such as, riot or disturbance which are
normally expected to be of a short duration. Therefore, the State might not
have initially thought of creating either a cadre or permanent posts.
20. But we do not see any justification for the State to take a defence that after
permitting the utilisation of the services of a large number of people like the
appellants for decades to say that there are no sanctioned posts to absorb the
appellants. Sanctioned posts do not fall from heaven. The State has to create
(2013) 14 SCC 65
them by a conscious choice on the basis of some rational assessment of the
need."(emphasis supplied)
53. Recently, the Supreme Court considered the issue in the case of Vinod
Kumar and Others Vs. Union of India and Others6.
It was a case where the appellant's plea for regularization and
absorption into the posts of 'Accounts Clerk' against which they were
temporarily appointed had been rejected by the Central Administrative
Tribunal, Allahabad Bench as their appointments were termed
temporary or scheme- based engagement, though they were
continuously working in the said position from 1992 till 2024 for a
period exceeding 25 years.
The Central Administrative Tribunal as well as the High Court
did not grant relief to the appellants therein by taking a view that their
appointment was under a temporary scheme and that in the case of
Uma Devi (3) (2 supra), it has been held that temporary or casual
employees do not have a fundamental right to be absorbed into service.
The Supreme Court held that essence of employment and the
rights thereof cannot be merely determined by the initial terms of
appointment when the actual course of employment has evolved
significantly over time.
The continuous service of the employees in the capacities of
regular employees performing duties indistinguishable from those in
2024 SCC Online SC 1533
permanent posts, and their selection through a process that mirrors that
of regular recruitment, constitute a substantive departure from the
temporary and scheme-specific nature of their initial engagement.
It was noticed that in that case promotion process was
conducted and overseen by a Departmental Promotional Committee and
they had rendered sustained service for more than 25 years without any
indication of the temporary nature of their roles being reaffirmed or the
duration of such temporary engagement being specified and these
factors merit a reconsideration of their employment status.
The Supreme Court held that the application of the judgement
in Uma Devi (2 supra) by the High Court does not fit squarely within
the fact in the case of Vinod Kumar (5 supra), given the specific
circumstances under which the appellants therein were employed and
had continued their service.
It declared that a reliance on procedural formalities at the
outset cannot be used to perpetually deny substantive rights that have
accrued over a considerable period through continuous service.
It held that there was a failure on the part of the Administrative
Tribunal and the High Court to recognize the substantive nature of the
roles of the appellants and their continuous service akin to permanent
employees; and it would be contrary to the principles of equality,
fairness and the intent behind employment regulations, to deny them
relief. It, therefore, directed consideration of their cases for
regularization in their respective posts and to complete the process
within three months.
54. Having regard to the judgements in Narendra Kumar Tiwari ( 3 supra)
and in Vinod Kumar and others (6 supra), we are of the opinion that
the utilizing the services of the appellant from 2008 (though under
nomenclature of a 'daily wage' employee initially and later from 2013
as a 'contractual appointee', which appointment was infact done
through a selection process adopted by the State with the Deputy
Commissioner as the head of the Interview Committee), is practically
indistinguishable from an appointment in a permanent post of clerk
who is also engaged in doing typing on computer and data entry.
55. The principles in Uma Devi (3) (2 supra) would not be attracted and
procedural formalities like nomenclature cannot be used to perpetually
deny appellant's substantive right acquired through continuous service
over a considerable period of time. The learned single Judge ought to
have also taken note of the regularization of similarly situated persons
like the petitioner in Annexure -11 which shows that the respondents
had discriminated against the appellant.
56. Therefore, the appeal is partly allowed; the judgement of the learned
Single Judge is set aside; and the respondents are directed to regularize
the services of the appellant as a Clerk at par with the persons
regularized on 22.07.2022 vide Annexure-11 within three months from
the date of receipt of a copy of this order as he has undoubtedly
completed 10 years of service as on 20.6.2019 as per the Rules referred
to in para 9 supra.
57. The relief sought for by the appellant to consider the period from the
date of his initial appointment for computation of all benefits including
retiral benefits is however declined since only after regularization of his
service by the respondents, can it be counted for such benefits.
58. We also hold that the appellant is entitled to remuneration/benefits at
par with that given to regular employees working on the post of
Accounts Clerk for a period of three years prior to the filing of the writ
petition.
59. Appeal is partly allowed accordingly.
(M.S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
F.R
Rakesh/-
