Sukhdeo Rao v. The State of Jharkhand

confirmation of regularization of the services of the petitioner vide order dated 07.10.2010, the order of regularization was cancelled and it was decided that the petitioner will remain in the capacity of daily rated workers and will be paid wages of the same

Aggrieved by the said order, the petitioner had approached this Court on an earlier occasion in W.P.(S). No. 1855 of 2011 and this Court after hearing the matter at length, observed therein that Deputy Development Commissioner-cum-Chief Executive Officer is the competent authority to regularize the services of the petitioner and there is no need of any approval from the Director, Panchayati Raj Directorate. However, the respondents took a plea that since the petitioner was never appointed on sanctioned and vacant post and even if he has continued to work for more than 20 years, his services cannot be regularized and further plea was taken that the order of regularization was not issued by the competent authority and hence, there is no question of approval and rightly the same was rejected. After passing of the order by the Hon’ble Court remitting the matter back, again the respondent-authorities have passed the order reiterating the same view and plea has been taken that neither the petitioner was appointed on vacant and sanctioned post nor he was appointed by the competent authority and therefore, there is no requirement of any interference. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court.

Mr. Rupesh Singh, learned counsel appearing for the petitioner vociferously argues that the impugned orders smacks malafide. Once the petitioner has been regularized, the same could not have been turned down on the ground that the order of regularization was not passed by the competent authority. It has been further argued that it is an admitted fact that petitioner had worked for 20 long years. Placing reliance on the celebrated judgment of Hon’ble Apex Court passed in 3 case of State of Karnataka & Ors. Vs. Uma Devi, reported in (2006) 4 SCC 1, particularly para-53, learned counsel submits that never any issue was raised by the respondents that appointment of the petitioner was illegal. May be the appointment was irregular but it was binding upon the respondents to consider the same because of the past services rendered by him. The services of the petitioner was regularized by the competent authority and the same was turned down later, mainly on the ground that he was not working against sanctioned and vacant post. The Deputy Development Commissioner of Zila Parishad, who is also Chief Executive Officer has ample power to regularize the services of a 4th grade employee. Learned counsel submits that impugned orders are illegal, arbitrary and not in accordance with law and considering the law laid down in case of State of Karnataka & Ors. Vs. Uma Devi, reported in (2006) 4 SCC 1 and State of Karnataka & Ors. Vs. M.L. Kesari & Ors., reported in (2010) 9 SCC 247, the same are fit to be quashed and set aside and the services of the petitioner needs to be regularized.

On the other hand, learned counsel for the respondent-State vehemently opposing the contention of learned counsel for the petitioner submits that rightly the order of regularization has been turned down. A person who has not been appointed by public advertisement, cannot be considered regularization. No appointment letter has been produced by petitioner neither annexed with the writ petition. Learned counsel further submits that even the order of regularization was not issued by the competent authority. Learned counsel submits that there is no illegality or any infirmity in the order and rightly the same was revised. Further, it was argued that petitioner has retired in the year 2021 and therefore, there is no question of regularization as he is not on roll of the respondents.

Mr. Radha Krishna Gupta, learned counsel appearing for the respondent-Zila Parishad adopts the arguments of learned counsel for the respondent-State and submits that, rightly the order of regularization was turned down and cancelled as the Chief Executive Officer has no power or authority to pass the order of regularization. It 4 has been further argued by learned counsel for the respondents that if at all this Court passes an order for regularization of the services of petitioner, his entire documents shall be examined and consequential benefits shall be given to him if he has worked for the period claimed by him.

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 interference for the following facts and reasons: I) Admittedly, the petitioner has worked for 20 long years and the same is not disputed by any of the parties. II) Considering the past services of the petitioner, his case was considered and recommended for regularization by competent authority. III) Chief Executive Officer of Zila Parishad, who is also the Deputy Development Commissioner has ample power to pass the order of regularization, considering the past services of the employee. IV) It is nowhere the case of the respondents that petitioner was appointed illegally and his appointed was by way of back door. The entry of the petitioner was not by way of back door since he has worked for last 20 years and hence, his case was considered and the order of regularization has been issued. V) Earlier it was observed by this Court that Deputy Development Commissioner had ample power issue order of regularization. VI) Only in view of the fact that petitioner has retired, his case cannot be turned down. In the instant case, the petitioner retired after working for more than 30 years and at the fag end of his retirement, prayer for the regularization was cancelled on the ground that his regularization was not by way of competent authority. The said ground of respondents is not acceptable to this Court.

The Hon’ble Apex Court in case of State of Karnataka v. Umadevi (3), reported in (2006) 4 SCC 1: 5

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of instrumentalities should take steps to regularise as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, constitutional scheme.

those not duly appointed as per the State Governments and further ensure should India,

Recently, this Court as well as the Hon’ble Apex Court had the occasion to examine the policy of regularization issued by the State of Jharkhand. Considering every aspect of the matter, the Hon’ble Apex Court passed a specific order that if the appointment is irregular and not illegal and if such employee has no charge of any misconduct whatsoever against him, he should be considered while passing the order of regularization. In the instant case merely on technical grounds the case of petitioner has been turned down, which is not acceptable in a welfare State.

In case of R.T. Rangachari Vs. Secretary of State, reported in AIR 1937 PC 27, the Hon’ble Apex Court has held as under:

In a case in which after Government Officials, duly competent and duly authorized in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in 6 effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.

The same view has been reiterated in case of State of M.P. Vs. Mansinghra, reported in AIR 1958 MP 1413. Further, in the case of H.C. Suman and Another Vs. Rehabilitation Ministry Employees Cooperative House Building Society Ltd., New Delhi and Others, reported in (1991) 4 SCC 485, the Hon’ble Apex Court has held that “once a quasi-judicial order becomes final, it cannot be reviewed by the same authority passing the order unless such power is conferred by statute on the authority”.

In the instant case, the order of regularization was passed by the Deputy Development Commissioner, Deoghar-cum-Chief Executive Officer and the same been reviewed by the same authority, which is not permissible in the eyes of law.

As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the order dated 15.02.2016 as well as order dated 23.03.2016, being not tenable in the eyes of law, are hereby quashed and set aside.

Since petitioner has already superannuated, respondent No. 4 is directed to regularize the services of petitioner from the date of his initial order of regularization with all consequential benefits. Since the petitioner has already superannuated he is also entitled for pensionary benefits.