The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 35 of 2022 ------ 1. The State of Jharkhand through its Secretary, Road Construction Department, Ranchi. 2. The Executive Engineer, Road Construction Department, Road Division, Garhwa. 3. The Joint Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi. 4. The Engineer-in-Chief, Road Construction Department, Govt. of Jharkhand, Ranchi. 5. The Superintending Engineer, Road Construction Department, Road Circle, Daltonganj, Govt. of Jharkhand, Medininagar, Palamau. … Appellants. Amresh Kumar Jha …. Respondent(s) -Versus- CORAM : For the Appellant(s) For the respondent 06/ Dated: 20.04.2023 -----
Legal Reasoning
SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. ----- : Mr. Sachin Kumar, AAG-II : Mr. Rahul Saboo, GP-II : Mr. Saurabh Sekhar, Advocate. : Mr. Anurag Kumar, 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 filing this intra- court appeal, the appellant (State of Jharkhand) has assailed the the judgment dated 2.3.2021 passed in WPS No. 7096 of 2017, whereby, the writ petition has been disposed of directing the appellants herein to regularize/reinstate the service of the writ petitioner. 2. The writ petitioner, herein the respondent initially was working on muster roll as a daily wager since 1996. Satisfied with the work he was allowed to work as Treasury Guard on sanctioned and vacant post by the Superintending Engineer vide Memo No. 11 dated 4.1.2000. The petitioner was confirmed on the post by memo No. 35 dated 31.1.2000. Thereafter, the petitioner was transferred to the office of Executive Engineer, Kolhan Vikash Path Pramandal, Chaibasa vide Memo No. 305 dated 30.3.2000. The petitioner had passed Hindi Noting and Drafting Examination as well as the Accounts Examination and he has also been granted annual increment every year. His service book was also opened and maintained as per the Jharkhand Service Code and also verified as per the Jharkhand Financial Rules. While working in the Road Construction Department, Road Division, Garhwa, he was served with a notice vide Memo No. 8262 dated 09.12.2015 by the Engineer-in-Chief, Road Construction Department, Ranchi 2. which he replied on 10.7.2017, thereafter the petitioner was terminated vide Memo No. 6225(S) dated 13.11.2017. The petitioner filed a departmental appeal against the dismissal on 23.11.2017 which was dismissed on 8.5.2019 confirming the order of termination. Against both these orders the petitioner filed a writ petition being WPS No. 7096 of 2017, which was disposed of directing the appellant herein to reinstate and regularize the writ-petitioner. 3. Counsel for the State (Appellant) submitted that the learned Single Judge could not have directed reinstatement and regularization as the appointment of the petitioner was illegal/irregular. He further submitted that there was no advertisement to fill up the post nor any sponsorship was called from the Employment Exchange. The Establishment Committee neither approved nor recommended the name of this petitioner and the termination order was passed after giving opportunity to the respondent-writ petitioner, which was not considered by the learned Single Judge. This appeal thus needs to be allowed. 4. Learned counsel for the respondent-writ petitioner in support of judgment contended that admittedly the petitioner was appointed on 4.1.2000 and his service was confirmed on 31.1.2000 and the petitioner was having requisite qualification and was working against sanctioned and vacant post. He further submitted that initially he was working on the master-roll as Daily Wager since 1996 and later on, he was allowed to work as Treasury Guard. He also contended that vide letter dated 31.1.2000, the services of the writ petitioner was confirmed and he was even allowed to appear in the departmental examination and was promoted also to the post of Correspondence Clerk, thus, these events clearly suggest that the appointment of the writ petitioner was valid. He further added that considering all these aspects, the writ petition was allowed by the learned Single Judge, which needs no interference. 5. After hearing the parties, we find that it is an admitted case that the petitioner was working as Treasury Guard on sanctioned and vacant post and thereafter he was transferred to the office of the Executive Engineer, Kolhan Vikash Path Pramandal, Chaibasa, as Treasury Guard against the vacant post. The petitioner was allowed to appear in Hindi Noting Drafting Examination and also the Accounts Examination and he passed both examination. The service- book of the petitioner was duly opened. These facts are admitted, which is apparent from paragraph 11 of the impugned order/judgment. 6. The petitioner worked from 1996 to 2017 i.e. long 21 years. He was granted increment and other benefits. The learned Single Judge also found that an enquiry was set up against 106 employees, but only this petitioner was singled 3. out and his service was terminated, whereas rest of the employees were allowed to work. Admittedly, this is not a case that the petitioner did not have the prescribed qualification to be appointed. Learned Single Judge has also taken note of the judgment passed by the Hon'ble Supreme Court in the case of State of Karnatka and Ors. V. M.L. Keshri and Others, reported in (2010) 9 SCC 247, wherein in paragraphs 7 and 11, the Hon'ble Supreme Court has held as under; “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Uma Devi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Xxxxx xxxxxxx xxx xxx xxx is that Second to ensure 11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Uma Devi (3) was rendered, are considered for regularisation in view of their the long service. departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Uma Devi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Uma Devi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Uma Devi (3) as a one-time measure.” 4. 7. Considering the aforesaid judgment and the facts of this case, at best it can be said that the appointment of the petitioner was irregular, which can be regularized. Thus, the learned Single Judge considering the several judgments of the Hon'ble Supreme Court as well as other judgments has held that the dismissal of the writ petitioner is bad and the petitioner is liable to be reinstated and thereafter regularized. 8. We find no illegality in the impugned order/judgment dated 2.3.2021 passed in WPS No. 7096 of 2017. Accordingly, this appeal is dismissed. 9. No orders as to costs. (Sanjaya Kumar Mishra, C.J.) Anu/-Cp2. (Ananda Sen, J.)