Jharkhand High Court
Manoj Kumar Chatterjee vs The State Of Jharkhand Through The Chief ... on 24 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5353 of 2021
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1. Manoj Kumar Chatterjee, aged about 61 years, son of
Late Ramaniranjan Chatterjee, resident of
Bangalipara, P.O. and P.S. Barharwa, District
Sahibganj;
2. Mahendra Masat, aged about 61 years, son of Tarni
Masat, resident of Village Jhakiya, P.O.
Dhamanilata, P.S. Jarmundi, District Dumka,
Jharkhand.
....Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary,
having its office at Project Building, Dhurwa, P.O.
and P.S. Dhurwa, District Ranchi;
2. The Secretary, Drinking Water and Sanitation
Department, Government of Jharkhand, having its
office at Engineering Bhawan near Gol Chakkar,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi;
3. The Special Secretary, Planning and Finance
Department, Government of Jharkhand, having its
office at Project Building, Dhurwa, P.O. and P.S.
Dhurwa, District Ranchi;
4. The Engineer-in-Chief, Drinking Water and
Sanitation Department, Government of Jharkhand,
having its office at Engineering Bhawan near Gol
Chakkar, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi;
5. The Executive Engineer, Drinking Water and
Sanitation Department, Mechanical Division,
Dumka, P.O. and P.S. Dumka, District Dumka;
6. The Accountant General, Jharkhand, Ranchi, P.O.
and P.S. Doranda, District Ranchi.
....Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Mr. Saurabh Shekhar, Adv.
Ms. Nidhi Kumari, Adv.
For the Resp.-State : Mr. Niraj Kumar Mishra, A.C. to G.P.-IV
For the Resp. No.6 : Mr. Rupesh Singh, Adv.
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C.A.V. ON: 09.07.2024 PRONOUNCED ON: 24/09/2024
The instant writ application has been preferred by the
petitioners praying therein for the following reliefs:
"(i) For issuance of appropriate writ(s), order(s), direction(s), specifically a
writ in the nature of mandamus commanding upon the respondents
to convert petitioners' services in Regular Establishment from Work
Charge (Regularization), in pursuance to the recommendation of the
Competent Committee appointed by the respondents, which
submitted its recommendation on 25.11.2019, for conversion of Work
Charge Post to Regular Establishment and to regularize services of
employees working continuously since prior to 1988, in relation to
240 employees, including the cases of the petitioners, the names
however, were absent in the final order of the Department, dated
17.06.2020, whereby all others similarly situated have been put in
Regular Establishment and regularized.
(ii) For issuance of appropriate writ(s), order(s), direction(s), specifically a
writ in the nature of certiorari for quashing of decision as contained
in letter dated 18.03.2021 (Annexure-6 of this writ application)
issued under the signature of respondent no.3, whereby it has been
held at Clause (ii), that the employees who have been put in Regular
Establishment from Work Charge after 30.11.2004, will be entitled to
get the benefits of Contributory Pension Scheme, and for the
purposes of pension, the service tenure shall be counted from the
date of conversion into Regular Establishment.
(iii) For issuance of appropriate writ(s), order(s), direction(s), specifically a
writ in the nature of mandamus commanding upon the respondents
to count the past services of the petitioners for the purpose of
calculating the pensionary benefits, and further to find petitioners
covered by the Old Pension Scheme;
this in pursuance to the fact that the post of Work Charge has
been converted into Regular Establishment, meaning thereby that the
post had existed prior to cut-off date of 01.12.2004, by which date
New Pension Scheme was introduced.
(iv) For issuance of appropriate writ(s), order(s), direction(s), specifically a
writ in the nature of mandamus commanding upon the respondents
to compute the accumulation of increment to calculate the present
day salary and pay arrears of salary from the date of conversion into
Regular Establishment after five years as Work Charge."
2. Learned counsel for the petitioners submits that they
were engaged as daily rated employees on 08.07.1984 and
12.01.1980 respectively. They were thereafter, asked to discharge
service against work-charge and thereafter, worked continuously.
The case of the petitioners is considered for regularization and
their names were duly recommended by the Committee, which
held its meeting on 25.11.2019 (Annexure-4), wherein the name of
the petitioners appeared at Serial Nos. 105 and 89, respectively,
for the Dumka Division of the Department. The petitioners retired
from service on 28.02.2020 and 31.01.2020 respectively.
3. The grievance of the petitioners is that the final
decision for regularization was taken by the department on
17.06.2020 (Annexure-5), but in the final decision the name of
these petitioners did not figure, as by that time they had reached
the age of superannuation. Thus, the delay, whatsoever, was
committed by the respondents and for which the petitioner should
not suffer.
4. Learned counsel further draws attention of this Court
towards (Annexure-I.A.-1) of I.A. No.8901 of 2023, which is the
State Government Resolution dated 17.07.2023, which declares
that past services of the employees have to be counted for
pensionary benefit. Further, (Annexure-I.A.-2) of I.A. provides the
manner in which on notional basis, the increments have been
allowed to accumulate in order to enhance the current salary for
other candidates who have been regularized.
He further submits that the issue involved in this writ
application has been dealt with in the case of Prem Singh Vs.
State of Uttar Pradesh and Others reported in (2019) 10 SCC
516, wherein the Hon'ble Apex court has held that the delay in
regularization of an employee, despite the judgment of Hon'ble
Apex court in the case of State of Karnataka v. Umadevi, is a fault
for which the employee should not suffer.
5. Learned counsel for the respondents has contended
that the petitioners could not be regularized for the reason that by
the time the final decision was taken on 17.06.2020, the
petitioners were superannuated. However, learned counsel for the
respondent-State could not dispute the fact that their names
appeared in the list of recommended candidates as is evident from
the Committee recommendation dated 25.11.2019.
6. Having heard learned counsel for the parties and after
going through the documents available on record and the
averments made in the respective affidavits, it appears that
admittedly; the names of these petitioners were recommended by
the Committee vide its meeting held on 25.11.2019. Thereafter, till
the time the final decision could be taken i.e. on 17.06.2020, the
petitioners were superannuated. Thus, the delay lies in the hands
of the respondents and not of the petitioners.
It further transpires that the State Government
resolution dated 17.07.2023 prescribes that the past services of
the employees have to be counted for pensionary benefit and the
aforesaid resolution also provided the manner in which, on
notional basis, the increments have been allowed to accumulate in
order to enhance the current salary for other candidates who have
been regularized. In the case of Prem Singh (supra), the Hon'ble
Apex Court has categorically held that delay in regularization of
an employee, despite the judgment of Hon'ble Apex Court in the
case of State of Karnataka v. Umadevi, is a fault for which the
employee should not suffer; as such, if the employee has retired,
then his services should be considered and treated as regular and
he should also be treated eligible for pension. For brevity Para-36
of the judgment passed in the case Prem Singh (supra) is referred
to hereinbelow:
"36. There are some of the employees who have not been regularised in
spite of having rendered the services for 30-40 or more years whereas they
have been superannuated. As they have worked in the work-charged
establishment, not against any particular project, their services ought to
have been regularised under the Government instructions and even as per
the decision of this Court in State of Karnataka v. Umadevi. This Court in the
said decision has laid down that in case services have been rendered for
more than ten years without the cover of the Court's order, as one-time
measure, the services be regularised of such employees. In the facts of the
case, those employees who have worked for ten years or more should have
been regularised. It would not be proper to regulate them for consideration of
regularisation as others have been regularised, we direct that their services
be treated as a regular one. However, it is made clear that they shall not be
entitled to claiming any dues of difference in wages had they been continued
in service regularly before attaining the age of superannuation. They shall
be entitled to receive the pension as if they have retired from the regular
establishment and the services rendered by them right from the day they
entered the work-charged establishment shall be counted as qualifying
service for purpose of pension."
7. In the present case, the petitioners' claim for
regularization and counting of past services for pension; the past
services of five years with effect from the date of initial engagement
should therefore, be counted for pension and for grant of
increment in their salary and it is also held that the petitioners
would be entitled for pension, counting their services with effect
from 1989 and 1985 respectively.
However, it is made clear that they shall not be entitled
to claim any dues of difference in wages had they been continued
in service regularly before attaining the age of superannuation.
They shall be entitled only to receive the pension as if they have
retired from the regular establishment and the services rendered
by them right from the day they entered the work-charged
establishment shall be counted as qualifying service for purpose of
pension
8. As a result, the initial salary should also be fixed on
the same date on notional basis, so as to calculate increments
year after year in order to fix the last pay drawn on the date of
retirement on which the pension will be allowed.
9. Having regard to the aforesaid discussions, the
petitioners are directed to file a fresh representation before the
concerned respondent within a period of four weeks. Thereafter,
the respondents are directed to consider the case of the petitioners
under Old Pension Scheme giving the said benefit, taking into
consideration the judgment of Hon'ble Apex Court in the case of
Prem Singh (supra) within a period of 12 weeks from the date of
receipt of such representation.
10. Accordingly, the instant writ application stands
disposed of in the manner as indicated hereinabove.
(Deepak Roshan, J.)
Jharkhand High Court
Date: 24/09/2024
vikas/-
AFR /NAFR
