The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P(S) No. 44 of 2020 ------ 1. Birendra Kumar Singh 2. Manoj Kumar Yadav 3. Navin Kumar 4. Ashok Kumar 5. Ramjeet Ram 6. Santosh Ram 7. Sanjay Kumar Gupta 8. Rakesh Kumar 9. Girja Vishwakarma 10. Birendra Yadav 11. Sunil Kumar Singh 12. Manoj Kumar 13. Rabindra Prasad Sharma 14. Shriram Choudhary 15. Md. Irfan Ali 16. Umesh Kumar 17. Surendra Prajapati 18. Ajeet Kumar 19. Kameshwar Vishwakarma 20. Punam Kumari 21. Sanjay Kumar Yadav 22. Surjbali Ram 23. Lalan Yadav 24. Vijay Kumar Ram 25. Dileep Kumar Yadav 26. Monika Kumari 27. Surendra Yadav 28. Dharmendra Ram 29. Ramjeet Vishwakarma 30. Satendra Chowdhari 31. Pramod Choudhari 32. Madhurendra Kumar Das 33. Sabir Ali 34. Pramod Kumar Singh 35. Ramadhar Yadav 36. Amrendra Kumar 37. Sunil Kumar Yadav 38. Nand Kumar Yadav 39. Niranjan Kumar Gupta 40. Dileshwar Prasad Yadav 41. Sunil Vishwakarma 42. Bijay Kumar Yadav 43. Uday Shankar Yadav 44. Mahfuz Alam 45. Pushpa Singh 46. Indu Kumari 47. Rajesh Kumar Jaiswal 48. Raju Kumar Yadav 49. Ganesh Prasad Yadav 50. Pramanand Mishra 51. Manoj Prajapati 52. Badri Narayan Yadav 53. Sushila Kumari 54. Murli Prasad 55. Jagdeep Kumar Ram 56. Yugal Kishor Sah 57. Sharma Mistry 58. Raghunath Saw 59. Baidyanath Prasad 60. Sitaram Uraon 61. Kundan Vishwakarma 2. Versus …. Petitioners. 1. The State of Jharkhand 2. The Chief Secretary, Govt. of Jharkhand, Ranchi. 3. The Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand, Ranchi. 4. The Principal Secretary, Human Resources Development Department, Govt. of Jharkhand, Ranchi. 5. The Director, Primary Education, Human Resources Development Department, Govt. of Jharkhand, Ranchi. 6. The Director, Jharkhand Education Project Council Project, Ranchi. 7. The Deputy Commissioner, Daltonganj. 8. The Deputy Superintendent of Education, Daltonganj. 9. The Secretary, Ministry of Education, Govt. of India, New Delhi. ….. ….. Respondent(s) ---- CORAM :
Legal Reasoning
SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. For the petitioner(s) For the State For the UOI For the JEPC 6/ Dated: 25.04.2023 ----- : Mr. Rama Kant Tiwari, Advocate. : Mrs. Darshana Poddar Mishra, AAG : Mr. Bharat Bhushan Prasad, CGC : Mr. Krishna Murari, Advocate. ----- Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Ananda Sen, J.)
Decision
O R D E R By way of filing this writ petition, the petitioners have prayed for following relief(s):- (a) for quashing the part of Notification No. 1632 dated 5.9.2012 (Annexure-1 to the writ petition) containing the Rules framed by the Department of Human resources Development, Govt. of Jharkhand, regarding appointment of teachers and instructors in elementary schools coming under Directorate of Education, Department of Human resources Development, since the same being ultra vires of Articles 14, 16 and 21 of the Constitution of India as because no provision has been made for regularization/adjustment of service of such para teachers and Assistant Teachers who are well qualified having TET certificate and have been discharging their duties for the last 5-15 years in different government schools. (b) Further to quash the part of Notification No. 1348 dated 13.2.2015 (Annexure-7 to the writ petition) issued by the Department of Personnel, Govt. of Jharkhand, by which a Rule in exercise of power conferred under Article 309 of the Constitution of India has been framed regarding regularization/adjustment of service of all such employees under the State Government who have irregularly been appointed and working for the last 10 years on or before 7.10.2016 (cut-off date) while considering the fact 3. for bring consideration the petitioners that the respondents while framing the Rule regarding Regularization/adjustment have not considered the position of para teachers like the petitioners who have been appointed/engaged only in the year 2003 and on subsequent dates under Sarv Sikchha Abhiyan i.e. the policy of the Government of India and this cut off date have been fixed does not for Regularization/Adjustment since, none of the para teachers can show uninterrupted service of 10 years on or before the cut off date. (c) For issuance of appropriate direction upon the respondent authorities to regularize the appointment/services of the petitioners as per their seniority whereby these para teachers who were appointed by the concerned District Authority i.e. the Deputy Commissioner for teaching in the schools of Jharkhand from block to district level after duly passing the Teachers' Eligibility Test (TET) examination conducted by Jharkhand Academic Council and they are rendering their services for the last 5-15 years in different government schools in Class 1 to Class V and Class VI to Class-VIII, while also considering the fact that around 1,50,000/- vacancies of Assistant Teachers are their in different schools of Jharkhand from primary to middle level in all 24 districts and moreover other states have not only taken a policy decision with respect to regularization/adjustment of service of Para Teachers, but even regularized also. (d) For issuance of appropriate direction upon the respondent authorities to appoint the petitioners against the sanctioned post and on the vacant post of Assistant Teachers since they have validly been appointed by the concerned Deputy Commissioner/Chairman, District Education Committee and moreover completed more than 240 days of uninterrupted service. (e) The petitioners further pray for issuance of appropriate direction upon the respondent authorities to pay them on the principle of equal pay for equal work the salary and other benefits at par with other Assistant Teachers working in different Govt. Schools while appreciating the fact that these petitioners as para Teachers are discharging same nature of job, having same qualification, but are getting honorarium. 2. The main prayer of the petitioners is that they are para teachers and they should be regularized as they have been working for last 5-15 years, admittedly appointed by the competent authority after undergoing selection process. 3. The issue of regularization of para teachers has been dealt with by a Coordinate Division Bench of this Court in WP(S) No. 315 of 2016 (Sunil Kumar Yadav and Ors. Vs. State of Jharkhand and Ors.) and its analogous cases. In the said batch of cases, the Division Bench of this Court in para 21 has held as under; “21. It is, thus admitted position herein that the writ petitioners have been appointed on contract basis under a Scheme known as ‘Sarva Shiksha Abhiyan’. Appointments letters were issued and on its perusal it appears that it contains terms and conditions as also about payment of honorarium. The State Government has come out with a notification in exercise of 4. power conferred under proviso to Article 309 of the Constitution of India vide Notification No. 2041 dated 21.08.2008 for regulating the services of the para teachers, wherein para teacher has been defined as under Rule 2(ii) ‘para teacher’ which means that the teachers who have been appointed on contract on fixed honorarium by Village Education Committee under SSA. It further appears that the mode of engagement has been referred as under Rule 3 and 4 which is to be made by conducting combined competitive examination by a duly constituted District Level Committee under the Chairmanship of Deputy Commissioner comprising four members. Under Rule 7, initially the honorarium was fixed to be paid in favour of one or the other para teachers to the tune of Rs. 5100/- with enhancement of Rs. 500/- on expiry of every three years. Further under Rule 13, provision has been made for disciplinary action which has been empowered to be initiated on recommendation of the Village Education Committee/Panchayat Sammitee/Block Education Extension Officer by Block Level Committee. The aforesaid rule, however, has been superseded by the State Government taking recourse of power conferred under proviso to Article 309 of the Constitution of India by way of Notification No. 238 dated 14.04.2022 wherein the nomenclature of the post has been changed as also the honorarium has been enhanced.” 4. The Division Bench by referring the several judgments of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Uma Devi (3) [(2006)4 SCC1], State of Karnataka & Others Vs. M.L.Kesari and Ors.[(2010) 9 SCC 247], Government of Andhra Pradesh and Ors. Vs. K. Brahmanandam & Ors. [(2008) 5 SCC 241], Official Liquidator Vs. Dayanand & Ors. [(2008) 10 SCC 1], State of Jammu and Kashmir and Ors. Vs. District Bar Association, Bandipora [(2017) 3 SCC 410] and Union of India and Ors. Vs. All India Trade Union Congress and Ors. [(2019) 5 SCC 773] in relation to issue of regularization of the services has held that “it is, thus, evident from perusal of the judgments about the parameters to be exercised by the High Court sitting under Article 226 of the Constitution of India that there cannot be any direction under Article 226 of the Constitution of India for regularizing the services by issuing command upon the State instrumentalities”. It has been further held that “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 5. 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). 5. Ulitmately the Division Bench of this Court held that the petitioners being Para Teachers are not entitled for regularization of their services. 6. The Division Bench also dealt with the matter of “equal pay for equal work” by referring several judgments and Rules and in Paragraph 25 of the aforesaid judgment has held that the writ Court sitting under Article 226 of the Constitution of India cannot issue direction upon the State to extend the benefit to the writ petitioners for granting ‘equal pay for equal work’. 7. The prayer for Para Teachers on the point of entitlement of minimum pay scale was also turned down in paragraph 29 of the aforesaid judgment. 8. During course of argument, learned counsel for the petitioners admitted that the issue involved in this writ petition is squarely covered by the judgment delivered by the Co-ordinate Bench of this Court in WP (S) No. 315 of 6. 2016 (Sunil Kumar Yadav and Ors. Vs. State of Jharkhand and Ors.) and its analogous cases. 9. Considering the aforesaid submissions and also after going through the judgment passed in WPS No. 315 of 2016, we are of the considered view that this case is squarely covered by the Judgment passed in WP(S) No. 315 of 2016 (Sunil Kumar Yadav and Ors. Vs. State of Jharkhand and Ors.) and its analogous cases. 10. Thus, this writ petition is also dismissed in terms of the order/judgment passed in WP(S) No. 315 of 2016 (Sunil Kumar Yadav and Ors. Vs. State of Jharkhand and Ors.) and its analogous cases. (Sanjaya Kumar Mishra, C.J.) Anu/-CP2. (Ananda Sen, J.)