Raju Raj Choudhary vs The State Of Jharkhand Through The Chief ...
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Jharkhand High Court

Raju Raj Choudhary vs The State Of Jharkhand Through The Chief ... on 29 April, 2025

Author: Deepak Roshan

Bench: Deepak Roshan

                                                    2025:JHHC:12739


    IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P. (S) No. 3318 of 2010
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1. Raju Raj Choudhary, Son of Late Ram Deo Choudhary, Permanent Resident of East Nandgola, P.O. & P.S. Patna City, District-Patna (Bihar), At present Resident of Church Road, P.O. Church Road, P.S. Lower Bazar, District Ranchi (Jharkhand).

2. Radhey Shyam Tiwari, Son of Late Shiv Nath Tiwari, Permanent Resident of Village-Barkagaon, P.Ο. & P.S. Barkagaon, District Gopalganj (Bihar), At present Resident of Bootymore, P.O. Bariatu, P.S. Sadar, District Ranchi, Jharkhand.

3. Baidyanath Choudhary, Son of Ram Khelawan Choudhary, Permanent Resident of Chiketoli, Mangal Talab, P.O. & P.S. Patna City, District Patna (Bihar), At present Resident of Church Road, P.O. Church Road, P.S. Lower Bazar, District Ranchi, Jharkhand.

4. Shilendra Marandi, Son of Late Samar Marandi, Resident of Village Jogiya, P.O. & P.S. Laxmipur, District Jamui, At present Resident of Gangutoli, Chutia, P.O. & P.S. Chutia, District-

      Ranchi.                                          ....Petitioners
                             Versus

1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Project Building, P.O. & P.S. Dhurwa, District Ranchi.

2. The Secretary, Department of Science and Technology, Nepal House, P.O. & P.S. Doranda, District Ranchi.

3. The Director, Department of Science and Technology, Nepal House, P.O. & P.S. Doranda, District Ranchi.

4. The Principal, Government Polytechnic Institute, Church Road, P.O. Church Road, P.S. Lower Bazar, District Ranchi, Jharkhand.

5. The Principal Secretary, to the Government, Department of Personnel, Administrative Reforms and Rajbhasa Project Building, P.O. & P.S. Dhurwa, District-Ranchi. ....Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurabh Shekhar, Adv.

Mr. Anurag Kumar, Adv For the Resp.-State : Mr. Sanket Khanna, A.C. to AAG-V

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9/29.04.2025

The petitioners have approached this Court with a

prayer for mandamus commanding upon the respondents to regularize the services of the petitioners in regular

establishment with all consequential benefits.

2. The case of the petitioners lies in a narrow compass. The

Science and Technology Department of then Government of

Bihar, Patna vide Memo No.1826 dated 26.09.1996

communicated the Accountant General, Bihar regarding the

vacant and sanctioned post under different departments in

different Polytechnics including Government Women's

Polytechnic, Ranchi. Pursuant to the same, an advertisement

was floated and the petitioners being eligible participated in

the recruitment process and subsequently, were appointed on

contract basis under the respondent government Polytechnic,

Ranchi in the year, 1997 on different posts like Typist cum

Clerk, Clerk, Peon, Class-IV and Instructor and have been

working continuously on vacant and sanctioned posts right

from their initial appointments. It is further the case of the

petitioners that after bifurcation of the State of Bihar, the

Govt. of Jharkhand also recognized the services of the

petitioners and petitioners have been continuously without

any interruption. On 13.06.2006, the Principal, Incharge of

Government Women's Polytechnic, Ranchi submitted a list of

sanctioned and vacant posts available in the said Institute.

Further, vide Memo No.2191 dated 22.11.2011, the Science

and Technology Department, Jharkhand, Ranchi extended

the employment of the petitioners as well as other teaching

and non-teaching staff for the financial year, 2007-08 to

2011-12.

3. It is specific case of the petitioners that the petitioners

were working on sanctioned and vacant posts from 1997, but

as their services have not been regularized, they have

approached this court by filing a writ petition

4. The petitioners claim for regularisation on the ground

that the petitioners are working from 1997 on vacant and

sanctioned post. The services of the petitioners are being

extended from time to time for last two decades, therefore,

their continuance in service cannot be termed as 'ad hoc or

on contract basis and as such, they are entitled for

regularization of their services. The action of respondents are

completely against the Regularization Rules, 2015 and also

directions of the Hon'ble Apex Court in case of Uma Devi Vs.

State of Karnataka and also orders passed in case of

Narendra Kumar Tiwari Vs. State of Jharkhand & Ors.

He further submits that the ground taken by the respondents

that the posts created for execution of World Bank Scheme

was temporary in nature is not sustainable in the eyes of law

as vide Letter No.202 dated 26.02.1998, it is clearly stated

that despite the project came to an end, all the posts

sanctioned thereunder shall continue being perennial in

nature.

5. Per contra, counter-affidavit has been filed. Learned

counsel for the respondents vehemently opposes the

contention of the learned counsel for the petitioners and

submits that there is no illegality or infirmity in the action of

the respondent as the same is passed in consonance with the

guidelines and principles settled by the Hon'ble Apex Court.

He further submits that the grant of extension to work for

some more period to the petitioners could never result in

conferring on them the status of a permanent employee or

could enable them to seek regularization in services. The

petitioners were appointed on contractual basis to the post

created exclusively for execution of specified World Bank

Scheme by the State of Bihar and the service of the

petitioners were given extension till the end of the said World

Bank funded Scheme i.e. 30.09.1998. After ending of the

aforesaid Scheme and after creation of State of Jharkhand,

the State of Bihar vide its letter No.297 dated 17.02.2001 has

given the extension till 28.02.2001 and decided therein that

from 01.03.2001, the contractual service of the employees of

World Bank Funded Scheme would come to an end. However,

the State of Jharkhand, in the year, 2003, being a Welfare

State, allowed the petitioners along with several other

similarly situated contractual employees of World Bank

Funded Scheme to continue in the employment on

humanitarian ground and other similarly situated employees

are still functional. He further submits that merely because a

temporary employee or a contractual worker continued for a

time beyond the terms of his appointment, he would not be

entitled to be absorbed in regular service or made permanent.

The petitioners have accepted the employment on

contractual/temporary basis with open eyes and as such,

there is no scope of doctrine of legitimate expectation.

Appointments were duly made following all the prescribed

Rules and requirement of appointment, which does not at all

come under the purview of irregular appointment and as

such, rightly the cases of the petitioners is not considered.

6. Having heard the rival submissions of the parties across

the Bar, this Court is of the considered view that the case of

the petitioners needs consideration for the following facts and

reasons:-

I. From perusal of Annexure-6 to the writ petition, it

appears that admittedly, the petitioners were appointed

and working on sanctioned and vacant post.

II. After the World Bank Funded Scheme came to an end,

the petitioners were allowed to work and till today, they

are working under the respondents.

III. The petitioners had worked for more than 26 years

and now they are at the verge of retirement, if the World

Bank Funded Scheme came to an end in the year, 1998

itself, why the respondents have taken work from the

petitioners and how they are continuing till date. The

respondents were in need of their work and as the

respondents have taken work from them for more than

26 years, they are entitled for regularization of their

services.

IV. The petitioners have completed ten years' of service on

the date of promulgation of Regularization Rules, 2015. It

is binding upon the respondents to give benefits of

service rendered by them by regularizing their services.

V. The contractual/temporary employee cannot be left at

the mercy of the respondents in view of the constitutional

provisions and in view of law laid down in case of Uma

Devi Vs. State of Karnataka and in case of State of

Karnataka & Ors. Vs. M.L. Kesari & Ors.

VI. Similar issue fell for consideration before this Court in

W.P.(S) No.6347 of 2018 & Other Analogous cases and

this Court vide order dated 22.12.2022, after considering

the several judgments of Hon'ble Apex Court has clearly

observed, which reads as under:

" 30. Heard the parties at length. The aforesaid cases have got chequered history. Earlier also the cases were rejected by the respondents on similar grounds particularly that they were not

working against the sanctioned posts and without following procedures of law i.e. without any advertisement they had been appointed which is in contravention of Articles 14 of the Constitution of India, which is an integral part of our system and as per settled law that the State action has to be tested on the touch stone of equality, it can be said that the appointment is dehors the constitutional mandate of Articles 14 and 16 of the Constitution of India, is not only irregular but also illegal. The said observation of the State in its impugned orders/action is neither logical nor rational in view of observations of the Hon'ble Apex Court in the case of Narendra Kumar Tiwari Vs. State of Jharkhand and others reported in (2018) 8 SCC 238 as also in several other cases cited aforesaid. While rejecting case of the petitioners, the respondents - State has failed to appreciate purport of the observations made by the Hon'ble Supreme Court. From the rejection order it appears that State has failed to appreciate the observations made by the Hon'ble Supreme Court in the case of Narendra Kumar Tiwari (Supra). The action on part of the respondents can be termed to be misconceived as the law has not rightly been appreciated while considering cases of the petitioners.

31. The Hon'ble Apex Court was very much aware that these petitioners working continuously for more than ten years, claiming regularisation on the ground that their initial appointments were never challenged rather they continued to work for several years and many of them are at the verge of retirement and in some of the case they have crossed their age of retirement, which clearly speaks that they were allowed to continue on the said posts because the State was in need of their services. Once the State is in need of services and employees are allowed to continue on the said posts, plea is not with the respondents to come with a finding that their appointments were illegal. Time and again the Hon'ble Apex Court has said that if the appointments are irregular, they can be considered for regularisation. These appointments were never illegal rather by flux of time they ought to have been regularised as their appointments were irregular and not illegal. The respondents ought to have considered the observation of the Hon'ble Apex Court in the case of Narendra Kumar Tiwari Vs. State of Jharkhand, reported in (2018) 8 SCC 238, wherein it has been held thus:-

"8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of

Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , 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 Neutral Citation 2023:JHHC:18460 6 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.

32. The cases regarding regularisation of the Computer Operators fell for consideration before this Court in W.P.(S) No. 4682 of 2021 [Babita Kumari and others Vs. The State of Jharkhand and others], and this Court, disposed of the same after considering celebrated Judgment of the Hon'ble Apex Court in the case of Hargurpratap Singh Vs. State of Punjab & Ors., reported in (2007) 13 SCC 292. Relevant paragraph of the said Judgment reads as under:-

"3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay-scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience

which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appoints are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly."

33. Further, similar view was also taken by the Hon'ble Delhi High Court in case of Narinder Singh Ahuja & Ors. Vs. the Secretary, Ministry of Health & Family Welfare & Ors., reported in (2014) 146 DRJ 167, wherein the Hon'ble Court has held as under:-

"15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to outsource" engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners employment is not their replacement with regular appointees, but instead, with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended."

xxx. xxxx xxx

36. Considering other aspects of the matter and taking into

consideration that the respondents are in need of their services and, therefore, they have been allowed to continue for long years, their cases cannot be turned down and as such a direction was given to take a fresh decision for regularization of their services in view of observations made in the case of Narendra Kumar Tiwari (Supra) and also for extension of their contract period till regular appointments are made. The cases of these petitioners have been turned down without making any reference of the observations of the Hon'ble Apex Court in the case of Narendra Kumar Tiwari (Supra). It was incumbent upon the respondents to consider their cases and come out with a specific observation that all these petitioners cannot be considered for regularization since they are charged of misconduct and other valid objections. From bare perusal of the impugned order the grounds which have been raise are not at all tenable in the eyes of law. The petitioners have completed ten years' of service on the date of promulgation of regularization rules. It is binding upon the respondents to give benefits of service rendered by them by regularizing their services. In absence of any valid rules, at the time of their appointment, their services cannot be said to be violative of any service rules and termed to be illegal.

37. In the case of Sheo Narain Nagar Vs. State of Uttar Pradesh reported in (2018) 13 SC 432, this factum has clearly been decided. The objective of the Judgment rendered by the Hon'ble Supreme Court in the case of Uma Devi (Supra) has not been followed rather used to defeat the very purpose of regularisation. The contention of the petitioners have not been met with by the respondents and only a formal denial has been made which clearly envisaged that just to frustrate their claim, plea of Article 14 of the Constitution of India has been taken. Regarding sanction of posts and advertisement for appointment, the issue has already been answered by the Hon'ble Apex Court in the case of Nihal Singh and Others vs. State of Punjab and Others (2013) 14 SCC 65. Para-20 of the said Judgment reads as under:

"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 them by a conscious choice on the basis of some rational assessment of the need."

Since the appointments are being made to fill-up gap by the outsourcing agency, it can safely be considered that hefty sums of money through the outsourcing agency for performance of the duties is being spent and the Government is undertaking the financial burden for discharge of functioning in case of Computer Data Entry Operators and hence the stand of financial burden on the State Government is not praised rather fit to be turned down and not accepted.

xxx xxx xxx

40. In plethora of Judgments, some of them have already been cited hereinabove, the law has been laid down and clear-cut observation has been made for consideration of cases of the petitioners in light of observations made by the Hon'ble Apex Court in the case of Narendra Kumar Tiwari (supra). The State having failed to do so, is hereby directed to consider cases of the petitioners in view of aforesaid view, as expressed in the case of Narendra Kumar Tiwari (supra).

41. Let it be made clear that enough is enough. The directions of the Court have not been taken into consideration by the respondents in right perspective rather the State has failed to appreciate the legal proposition and as such the respondent authorities are directed to examine individual cases taking into consideration the order passed by the Hon'ble Apex Court in the case of Narendra Kumar Tiwari (Supra), particularly paragraph-10 thereof and after examining individual cases, if it is found that there is no any other legal impediments, shall consider their individual cases for regularization in accordance with law and pass an order to that effect within a period of sixteen weeks from the date of receipt/ production of a copy of this order. Needless to say, the employees who have worked for more than ten years and have retired during pendency of the writ petition and their cases were turned down on the aforesaid plea of the respondents, their cases also need to be considered from retrospective dates and if they have rendered for more than ten years of unblemished services, the order of regularization should also be passed in their cases too along with consequential benefits in accordance with law."

7. As a cumulative effect of the aforesaid rules, guidelines

and judicial pronouncement, the action of respondent in not

regularising the petitioners is not tenable in the eyes of law

8. The respondents are directed to regularize the services

of the petitioners with all consequential benefits, within a

period of twelve weeks' from the date of receipt of a copy of

this order.

9. Accordingly, writ petition stands allowed.

(Deepak Roshan, J.) Amardeep/-