Mahmud Allam v. The State of Jharkhand through Secretary-cum-Commissioner, Agriculture Sugarcane Development Department, Ranchi

Judgment

2. 3.

4. Versus The State of Jharkhand through Secretary-cum-Commissioner, Agriculture Sugarcane Development Department, Ranchi. Vice Chancellor, Birsa Agricultural University, Ranchi. The Director of Administration, Birsa Agricultural University, Ranchi. The Recruitment Officer, Birsa Agricultural University, Ranchhi. …. … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner : For the Respondent-State : For the Resp-University :

Mr. Ravi Kumar Singh, Advocate Mr. Abhinay Kumar, AC to GA-I Mr. A. Allam, Sr. Advocate Mr. Fahad Allam, Advocate ----- 8/ 13.04.2023 Since the issues involved in all these matters are identical, they are heard together and are being disposed of by this common order.

3. Heard the learned counsel for the parties. The petitioners have approached this Court for seeking 2 direction upon the respondents to regularize their services from the date of their initial entry as daily wager or in alternative, they have prayed to count their past services for the purpose of pensionery benefit, considering the fact they are working since long.

4. This case has got a checkered history. This is fifth round of litigation. The petitioners were initially engaged on daily wage as casual grade-III employee in the year 1983-1985. The litigation starts right from the year 1989, when some of the petitioners and other similarly situated employee preferred CWJC No. 1260 of 1989 (R), which was disposed of on 29.8.1989 with a direction to the respondents to consider regularization / absorption of the services of the employees giving preference to the work experience. Since they were not absorbed, some of the petitioners and others filed CWJC No. 2839 of 1999(R). In the meantime, the respondents issued Advertisement No. 2 of 2000 inviting applications for appointment on the post of Class-III post. Since the process of selection has been initiated, said writ petition was disposed of on 29.3.2001 with a direction to the respondents to give preference to the petitioners as mentioned in the advertisement itself and also to give weightage and preference to the daily wages employees. Thereafter, petitioners Deo Narayan Saw (now dead) and Sheikh Ketabul Hussain preferred Cont. Case (Civil) No. 911 of 2001 and the same was also disposed of by order dated 17.2.2003. In selection process, pursuant to Advertisement No. 02 of 2000, since the petitioners were having lesser qualification, they were not considered for appointment and thereafter W.P.(S) No. 6154 of 2003 and W.P.(S) No. 1631 of 2004 and another writ petition were filed. During pendency of these writ petition, Advertisement No. 01 of 2008 was published and therefore, all these writ petitions were disposed of on

16.3.2010, directing the respondents to consider the applications filed by the petitioners and to accord preference to the petitioners in respect of their job experience and continuous service rendered during the past several years as daily wage employees. Pursuant to direction dated

16.3.2010 passed by this Court, petitioners, Mahmud Allam and Md. Abbas Ali were appointed vide office order dated 21.5.2011 and the case of petitioners Deo Narayan Sao (now dead) and Shekh Ketabul Hussain has not been considered. Again, both these petitioners preferred W.P.(S) 3 No. 3611 of 2013 and thereafter, in compliance of the order dated

13.11.2013 passed therein, the original petitioner Deo Narayan Sao (now dead) and petitioner Shekh Ketabul Hussain were appointed vide office order dated 13.3.2014. It is stated that some of the petitioners have now retired and petitioner Deo Narayan Saw is now dead and his legal representatives are now substituted in his place. Since some of the petitioners have superannuated during the pendency of these writ petitions and petitioner Deo Narayan Saw died in the year 2018, their cases for pensionery benefits were not considered, on the ground that they do not fulfill the minimum requirement of regular services of ten years for getting pension. Aggrieved by the same, the petitioners have been constrained to knock the door of this Court.

5. Mr. Ravi Kumar Singh, learned counsel appearing for the petitioners has submitted that the petitioners are entitled for pensionery benefits in view of the fact that they are agitating their claim since 1983 onwards i.e. from the date of entry though on daily wage basis, but continuously they were discharging their duties, which is accepted by the respondents in the earlier writ petition i.e. in W.P.(S) No. 3611 of 2013 filed by original petitioner Deo Narayan Sao and Shekh Ketabul Hussain. This Court categorically held that since the petitioners were discharging their duty from 1983 onwards, their cases for pension should be considered taking into account their regular past service. Learned counsel submits that this issue has already been considered by a Coordinate Bench of Court and the order is based on the order of the Hon’ble Supreme Court in the case of Commissioner, Kernataka Housing Board Vs. C. Muddaiha, reported in (2007) 7 SCC 689. Learned counsel also places heavy reliance upon the judgment of the Hon’ble Apex Court in the case of State of Gujrat & Ors. Vs. Talsibhai Dhanjibhai Patel reported in 2022 Live Law (SC) 187, wherein, the Hon’ble Apex Court in clear words observed that after taking 30 years of continuous service, the State cannot contend that as the services rendered by the respondents are ad hoc, he is not entitled for pension / pensionery benefit.

6. Per contra, counter affidavit has been filed. Mr. Abdul Allam, learned senior counsel appearing for the respondent University submits that petitioners were never appointed as a daily wagers. Their services 4 were never regularized. It was only when they appeared against the fresh vacancy floated by Advertisement No. 01/2008, their cases were considered for fresh appointment against the fresh vacancies. Learned senior counsel further submits that since they have not put on ten years of regular service, their cases were rightly not considered for pensionery benefits.

7. Learned counsel for the respondent-State submits that Birsa Agriculture University is an autonomous body duly guided by Jharkhand State Agricultural University Act, 2000 to undertake any decision upon regularization of any employee and role of answering respondent is merely limited and concise within the domain of budgetary allocation for under different accounting heads including salary head and scheme head etc.

8. Be that as it may, having heard the rival submissions of the learned counsel of the parties, this Court is of the considered view that the case of the petitioners needs consideration. Admittedly, in the light of several directions passed by this Court in several writ petitions particularly W.P.(S) No. 1631 of 2004 and other analogues matters, the petitioners were appointed. In W.P.(S) No. 3611 of 2013, which was filed by original petitioner Deo Narayan Sao and Shekh Ketabul Hussain for considering their cases for regularization from the date of initial entry, this Court observed that “they deserve an order for regularization of their services and therefore, to appoint the petitioners on the post for which they had applied”.

9. The direction of the Court has to be respected by the University as well as by the State. It was specific direction of the Court to consider the past services of the petitioners for regularization and also for other consequential benefits. Since the petitioners’ services were not regularized, but having considered by the respondents in fresh appointment from 2011 and 2014, the past service cannot be given a go- bye.

10. The issue fell for consideration before the Hon’ble Apex Court in the case of State of Gujarati & Ors. Talsibhai Dhanjibhai Patel (supra), The Hon’ble Apex Court was of the view that:- ‘It is unfortunate that the State continued to take the services of the respondent as an adhoc for 30 years and 5 thereafter now to contend that as the services rendered by the respondent are ad hoc. He is not entitled to pension / pensionery benefit. The State cannot be permitted to take the benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service is nothing but shall not be eligible unreasonable. As a welfare State, the State as such ought not to have taken such a stand.” for pension (emphasis supplied)

11. Apart from the observations of the Hon’ble Apex Court in the above case, in para-5 of the writ petition filed by original petitioner Deo Narayan Sao and Shekh Ketabul Hussain, specific plea has been taken by the petitioners that “they were initially engaged by the respondents on daily wager basis against the regular / vacant posts in the year 1983-84 and since then they had been discharging their services to the respondents without any break and to the satisfaction of the controlling authorities”.

12. The respondents in their counter affidavit in para-17 stated that “it is stated that the same are matters of record and hence needs no comments”.

13. From perusal of the records and from the averments made in the writ petitions as well as counter affidavit, it appears that it is not in dispute that the respondents have admitted the case of the petitioners regarding past services. The Court in W.P.(S) No. 3611 of 2013 has category held in para-16:- “From the aforesaid discussion, it appears that this Court the respondent in earlier proceedings has directed University to give age relaxation and benefit of experience and continuous service rendered by the petitioners in past several years as daily wage employees. It also appears that the respondent-University itself made a statement before this Court that benefit of past service would be given to the present petitioners. I further find that in the counter- affidavit, the respondent – University has not disclosed any reason why the petitioners have not been selected. The specific allegations made in the writ petition that, less meritorious persons having lesser experience than the petitioners have been selected and the petitioners have been discriminated, have not been denied or disputed by the respondent University. It is not the case of the respondent- University that the persons who have been selected are better suitable candidates. I further find that in view of the continuous past services of the petitioners, an inference can be drawn that the petitioners are suitable candidates 6 for being absorbed. From the documents on record, it is apparent that the claim of the petitioners has been ignored arbitrarily. I further find substance in the argument raised by the learned counsel for the petitioners that, the persons who have been illegally appointed to not have any vested right on the post on which they have been selected ignoring the claim of the present petitioners.” [emphasis supplied]

14. In view of the ratio laid down by the Hon’ble Apex Court in the case of State of Gujrat (supra) coupled with the same view reiterated by a Coordinate Bench of this Court, this Court is of the considered view that the petitioners are entitled for counting their services from the date of initial entry for the purpose of pension / pensionery benefits. Merely because they have considered them as fresh appointees, and just four years thereafter they died, they cannot be deprived from the pensionery benefits. This callous approach of the respondent University in denying the past services for pensionery benefits is highly deprecated and not tenable in the eyes of law.

15. In the facts of this case, I hereby direct the respondents to consider the case of the petitioners for pensionery benefits after counting their past services right from the date of initial entry in service and thereafter fix the pension / family pension accordingly and extend the pension / pensionery benefits to the petitioners / legal heirs within a period of twelve weeks from the date of receipt/production of a copy of this Court.

16. All these writ petitions stand allowed. R.Kr. (Dr. S. N. Pathak, J.)