The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Yamuna Vishwakarma W.P.(S). No. 268 of 2024 ---------- Versus ………… Petitioner 1.The State of Jharkhand 2.The Divisional Commissioner of Palamau Commissionary, Dist.-Palamau 3.The Deputy Commissioner, Garhwa, Dist.-Garhwa 4.The Deputy Collector, Establishment, Garhwa, Dist.-Garhwa 5.The Block Development Officer, Chinia, Dist.-Garhwa ------- ………… Respondents CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents
Legal Reasoning
by this Court in W.P.(S) No.5972 of 2022 whereby the claim of the petitioner for regularization has been rejected on the ground that Letter dated 26.08.2023 is not a letter of appointment. Further prayer has been made for regularization of the services of the petitioner from the date of initial appointment with all consequential benefits. 2. This case has got chequered history. Earlier the petitioner approached this Court in W.P.(S) No.5172 of 2022 and after hearing the parties, vide order dated 05.12.2022, this Court directed the petitioner to file a fresh detailed representation before the Deputy Commissioner, Garhwa, who, in turn was directed to consider the case and pass a reasoned order in accordance with law. Further direction was made that if petitioner is found entitled for any benefit, the same should be extended to him within a reasonable period, preferably within a period of six weeks. It was further observed that since the petitioner was appointed against sanctioned and vacant post, he will not be removed from service even if the order is not passed in his favour. After the order of this Court, petitioner represented 1 before the authority but his case was turned down on the ground that the letter of appointment on which he was harping upon, cannot be termed to be a letter of appointment rather it was only recommendation of the Deputy Commissioner to appoint him as a daily wager for three months only. Being aggrieved, petitioner preferred Cont. Case (C) No.344 of 2023 which was however disposed of on the ground that reasoned order was already passed. Aggrieved by the reasoned order dated 06.12.2023, the petitioner has been constrained to knock the door of this Court. 3. Learned counsel for the petitioner submits that petitioner is entitled for regularization of his services. Learned counsel further submits that right from the date of initial appointment, petitioner was working on the sanctioned and vacant post. It was the Deputy Commissioner who had issued the letter of appointment to the petitioner though on daily wages. Learned counsel further submits that petitioner has been continuously working for last 20 years. This aspect of the matter was duly considered by this Court in W.P.(S) No.5972 of 2022 and this Court was pleased to direct the respondents not to remove the petitioner even if any adverse order is passed. In view of the order passed by this Court, petitioner is still continuing in the services. Learned counsel further submits that grounds for rejection is not tenable in the eyes of law. The respondents have admitted the fact that petitioner is working on the sanctioned and vacant post but rejected his case on the ground that there is no letter of appointment and letter of appointment which has been issued by the Deputy Commissioner cannot be said to be letter of appointment and thus the appointment of the petitioner was not regular in nature. Even a report was sought for from the District Establishment Committee from the Additional Deputy Commissioner, it is annexure-17 at page-110 and information was sought for on five points, even those information was in favour of the petitioner but the same was not considered by the respondents-authorities which is at Annexure-18 of the writ petition. Learned counsel further submits that in view of the settled legal proposition and in view of the fact that petitioner is working on sanctioned and vacant post and it was Deputy Commissioner 2 who had appointed the petitioner, it cannot be said that appointment of the petitioner is illegal rather the appointment was irregular and same by afflux of time ought to have been considered and regularized by the respondent- authorities and as such a direction be given to the respondents to consider the case of the petitioner in view of celebrated judgment of Hon’ble Apex Court in the case of Secretary, State of Kernataka & Ors. Vs. Uma Devi & Ors. reported in (2006) 4 SCC 1. 4. Learned counsel for the respondent-State opposes the contention of learned counsel for the petitioner and submits that in no way petitioner is entitled for regularization. Petitioner was never appointed by a competent authority. Learned counsel placing heavy reliance on the judgment of Hon’bla Apex Court in the case of Vibhuti Shankar Pandey Vs. State of Madhya Pradesh & Ors. reported in (2023) 3 SCC 639, particularly para-4 learned counsel submits that petitioner is not entitled for consideration for regularization in view of the fact that the letter of appointment i.e. the initial appointment was not issued by the competent authority. 5. Having gone through the rival submissions of the parties, across the bar, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons; (i) Admittedly, the letter of appointment was issued by the Deputy Commissioner, Garhwa (ii) It has been admitted by the respondent-authorities that petitioner was appointed on sanction and vacant post (iii) The same fact has duly been considered by this Court in W.P.(S) No.5972 of 2022 and thereafter a direction was issued to the respondents not to remove the petitioner, since he is working on sanction and vacant post. (iv) The matter was duly enquired from the office of Additional District Collector where the petitioner was working and a report was received in favour of the petitioner. It was observed and clearly mentioned at Annexure-18 of the writ petition that letter of appointment was issued by nonetheless other than Deputy Commissioner of the said District. 6. From the aforesaid facts, it is admitted that petitioner was working on sanction and vacant post. The appointment of the petitioner was not illegal 3 rather it can be comfortably termed to be an irregular appointment. At the time of initial appointment, no appointments were made on regular basis and thereafter the petitioner was appointed on daily wages, but admittedly on sanctioned and vacant post which is not denied by the respondents at any point of time. The issue fail for consideration before the Hon’ble Apex Court in the case of Secretary, State of Kernataka & Ors. Vs. Uma Devi & Ors. reported in (2006) 4 SCC 1; State of Karnataka Vs. M. L. Kesari, reported in (2010) 9 SCC 247 and Narendra Kumar Tiwari Vs. State of Jharkhand & Ors. reported in 2023 (1) JBCJ 500 (HC). The legal proposition which has been set at rest clarifies that a person working on sanction and vacant post for more than 10 years is entitled for regularization. In the instant case, petitioner has continued for more than 20 years on the said sanction and vacant post. There is no reason as to why the case of the petitioner be not considered for regularization. Even the policy decision of the State regarding regularization talks of regularization after 10 years of continuous service on sanctioned and vacant post. The argument advanced by the learned counsel for the respondent- State, whereby he has placed heavy reliance on the judgment of Hon’ble Apex Court in Vibhuti Shankar Pandey (supra) case is of no help to her. The Hon’ble Apex has clarified that appointment must be done by the competent authority and there must be a sanction post on which the daily wages employee must be working. The said legal proposition comes to rescue of the petitioner. Admittedly, petitioner was working on the sanction and vacant post as a daily wages employee. The letter of appointment was issued by the competent authority i.e. Deputy Commissioner, which cannot be denied. 7. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement, the impugned order dated 06.12.2023 is hereby quashed and set aside. 8. Respondent-Deputy Commissioner, Garhwa is directed to consider the case of the petitioner for regularization from the date of initial appointment. 4 9. Let the entire exercise be completed within a period of six weeks from the date of receipt of copy of this order. 10. Accordingly, the instant writ petition stands allowed. Rohit/- (Dr. S.N. Pathak, J.) 5
Arguments
: Mr. Dhananjay Kr. Dubey, Advocate : Ms. Nirupma, AC to Sr. SC-II ---------- 07/ 13.08.2024 Petitioner has approached this Court with a prayer for issuance of writ in the nature of certiorari for quashing the impugned order dated 06.12.2023 passed by respondent No.3-Deputy Commissioner, Garhwa as contained in Annexure-22, in compliance of the order dated 05.12.2022 passed