The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 468 of 2023 through 1. The State of Jharkhand the Principal Secretary, Rural Development Department, Government of Jharkhand, Project Building, Dhurwa, Ranchi, P.O. & P.S.- Dhurwa, Ranchi 2. Deputy Secretary, Rural Development Department, Government of Jharkhand, Project Building, Dhurwa, Ranchi, P.O. & P.S. Dhurwa, Ranchi 3. Deputy Commissioner, Dhanbad, P.O. & P.S. Dhanbad 4. Deputy Development Commissioner, Dhanbad-cum-Project Director, District Rural Development Agency, Dhanbad, P.O. & P.S. Dhanbad ...… Appellants Versus 1. Sita Devi, widow of Late Awadesh Das 2. Pappu Kumar, son of Late Awadesh Das 3. Guddu Kumar Ram, son of Late Awadesh Das 4. Sunita Kumari, daughter of Late Awadesh Das 5. Priti Kumari, daughter of Late Awadesh Das 6. Mamta Kumari, daughter of Late Awadesh Das All resident of Prem Nagar, Street No.4, P.O., P.S. & District- Dhanbad. 7. Sem Sunil Murmu, son of Yakub Murmu, Resident of Ghoshaldih, P.O. Pokharia, P.S. East Tundi, District- Dhanbad 8. Sanjay Kumar Srivastava, Son of Sri Lalan Prasad Srivastava, Resident of Professor Colony, Chiragora, P.O., P.S. & District- Dhanbad …. ... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
We are satisfied with the cause shown by the appellants in this application and, therefore, the delay of 176 days in preferring this Letters Patent Appeal is condoned. 3. I.A. No. 11509 of 2023 is, accordingly, allowed. LPA No. 468 of 2023 4. One of the writ petitioners, namely, Awadesh Das died during pendency of W.P.S. No. 5727 of 2017 and he was substituted by his wife, sons and daughters who are the respondent nos. 1 to 6 in the present Letters Patent Appeal. The State of Jharkhand has challenged the common order dated 5. 1st May 2023 by which W.P.(S.) No. 5727 of 2017 has been allowed. 6. The primary grievance of the writ petitioners was that the Principal Secretary, of the Department of Rural Development (in short, Departmental Secretary) in his letter dated 16th December 2016 observed that all previously created posts shall be deemed to have been abolished on coming into force of the DRDA’s Appointment-cum-Service Condition Rules, 2009 (in short, DRDA Rules). The writ petitioners were also aggrieved by the decision of the Departmental Secretary that the Clerk-cum- Computer Operator is not entitled for salary and allowances equivalent to permanent government employee. 7. Awadesh Das, Sem Sunil Murmu and Sanjay Kumar Srivastava came together before the writ Court to challenge the aforementioned letter dated 16th December, 2016 issued by the Departmental Secretary on the grounds that (i) they were appointed on sanctioned vacant posts; Sanjay Kumar Srivastava was appointed on compassionate ground (ii) they were paid salary and allowances sanctioned by the Department of Rural Development, Government of Jharkhand (iii) Sanjay Kumar Srivastava who
Arguments
HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellants For the Respondent : Mr. Manish Kumar, Sr. S.C.-II : Mrs. Nirupama, AC to Sr. S.C.-II : Mr. Mohammad Asghar, AC to Sr. S.C.-II : Mr. Navin Kumar, Advocate Ms. Sweta Kumari, Advocate 07th February 2024 Per, Shree Chandrashekhar, A.C.J. I.A. No. 11509 of 2023 This interlocutory application under section 5 of the Limitation Act has been filed seeking condonation of delay of 176 days in preferring the present appeal. 2 LPA No. 468 of 2023 2.
Decision
was the writ petitioner no. 3 was absorbed in service in the pay scale of Rs. 4,000-6,000/- by virtue of the decision of the Board of Management of DRDA, Dhanbad and was inducted in the regular establishment of the DRDA. 8. The writ Court held that the writ petitioners were appointed on a vacant sanctioned post but, even without a show cause notice, the status of the writ petitioners and other similarly situated employees was changed 3 LPA No. 468 of 2023 from permanent employees to that of the contractual employees. The writ Court has held as under: “24. Be that as it may, before coming to a finding, the following issues involved in these writ petitions has to be carefully examined and answered accordingly. (I) Whether the petitioners had been working against the sanctioned vacant posts? (II) Whether the pay scale granted to the petitioners can be lowered down without following the procedures of law? (III) Whether the DRDA Rule, 2009 and the service conditions mentioned therein has retrospective effect or the prospective effect? (IV) Whether service of the petitioners can be deemed to be permanent in nature and can be treated at par with the similarly situated government employees? (V) Whether case of the petitioners can be distinguished with other similarly situated persons? (VI) Whether there can be class within the class amongst the similarly situated persons? 25. In view of the facts stated in W.P.(S) No. 1691 of 2017, it is an admitted fact that petitioner had been appointed and confirmed in service on regular pay scale of Rs.4,000 – 6,000. Similarly, in W.P.(S) No. 2311 of 2017, petitioners were appointed in a regular pay scale of Rs.5,000 – 8,000. In W.P.(S) No. 2316 of 2017, it appears that they were appointed in a regular pay scale of Rs.5,200 – 20,200. In W.P.(S) No. 5727 of 2017, the permanent status of the petitioners were subsequently changed to that of contractual employees and the pay scale was reduced. Meaning thereby, their initial appointments were of permanent in nature. 26. From the aforesaid facts, it is crystal clear that all the petitioners were appointed on vacant and sanctioned posts and their appointment were permanent in nature in a fixed pay scale. The Rural Development Department, Government of Jharkhand vide its letter no. 5540, dated 25.07.2009 has already clarified that the service conditions of the employees working in different District Rural Development Agencies in the State of Jharkhand have to be treated at par with the Government servant. The respondents have lowered down the pay scale granted to the petitioners without following any procedures of law and are treating them as a contractual employees and making payment of salary in parity with the contractual employees appointed in terms of DRDA Rules, 2009, is illegal, arbitrary and not permitted under the law. It is settled principles of law that any order visiting with civil and evil consequences, the provisions of natural justice is attracted. The respondents, without even issuance of show-cause notice and awaiting for their explanation, have issued the impugned orders in relation to different petitioners whereby their service conditions have been altered from the status of permanent employees to that of the contractual employees and their pay scale have also been reduced along with allowances and increments, which is not tenable in the eyes of law and fit to be quashed and set aside and the same are hereby set aside. 27. Further issue involved in the writ petitions whether DRDA Rule, 2009 can be given a prospective effect or is retrospective in nature. The law is very clear that any rule or law enacted is always prospective in nature unless and until it is mentioned in expressed language that the rule is retrospective in nature. In the instant case also, the 2009 Rule has been given retrospective effect which is impermissible in the eyes of law and is applicable only to the employees appointed after the year 2009 and not applicable to the employees who were working on permanent posts since long even before the coming of such Rule of 2009 and thus very comfortably it can be inferred that any order altering the status of the petitioner to that of a contractual employee in garb of 2009 Rules, is not at 4 LPA No. 468 of 2023 all tenable and the order stands vitiated and is nullity in the eyes of law. 28. It appears that vide letter no. 265, dated 21.01.2010, a direction was also issued to all the Divisional Commissioners, Deputy Commissioners and Deputy Development Commissioner of the State through the Secretary, Rural Development, clarifying that all the appointments in pursuant to the Recruitment Rule, 2009 will be made only with respect to remaining vacant posts. Since petitioners were appointed, confirmed prior to issuance of the Rule, 2009 and were getting regular pay scale for last many years and even after enactment of DRDA Rule, 2009 and it was duly clarified vide letter no. 265, dated 21.01.2010 to all the Divisional Commissioners/ Deputy Commissioners and the Deputy Development Commissioners of the State that the appointment in pursuance to the Recruitment Rule, 2009 will be made with respect to the remaining vacant posts. The case of the petitioners remained intact and cannot be influenced by the 2009 Rules. 29. From the record it is also clear that similarly situated persons in other districts are getting the regular pay scale and their services have not been disturbed. Since the services of the persons in the other districts are similar to that of the petitioners, they cannot be discriminated as there cannot be class within the class and any such discrimination amounts to violation of Articles 14 and 16 of the Constitution of India and as such the order itself is nullity in the eyes of law and not sustainable. 30. Since the service condition of the petitioners and other similarly situated persons are same and similar, they cannot be singled out and treated differently. The action of the respondents are arbitrary and discriminatory. 31. The Government of Jharkhand has clearly opined that the Managing Committee of any DRDA is self competent to take any decision in light of instructions issued by the State Government and different Managing Committee are vested with the executive and financial powers as per the the Government of India for District Rural guidelines framed by Development Agency administration. The petitioners who are entrusted with the responsibilities like census, election duties and are diligently discharging the duties, this Court is of the view that their services cannot be altered in view of 2009 Rules and they are entitled for the similar benefits which the other similarly situated persons are getting even after coming into the effect 2009 Rules. Their appointments which are permanent in nature and the pay scale which they were getting prior to 2009 Rules, is hereby directed to be restored. The Managing Committee is at liberty to take a decision keeping in view the nature of appointment of the petitioners and also in view of the decision of this Court in W.P.(S) No. 5074 of 2015 and other cases. judicial the aforesaid rules, guidelines and 32. As a sequitur of pronouncements, this Court is of the considered view that case of the petitioners be reconsidered. Consequently, the impugned orders i.e. (i) order issued vide memo no. 7196, dated 16.12.2016 [In W.P.(S) No. 1691 of 2017, W.P.(S) No. 2311 of 2017 and W.P.(S) No. 2316 of 2017]; (ii) order issued vide memo no. 1035; memo no. 1036; and memo no. 1034, all dated 10.07.2017 as also letter no. 6454, dated 02.09.2009 so far as the petitioners are concerned [In W.P.(S) No. 5727 of 2017] are hereby quashed and set aside. 33. Needless to say since petitioners are facing acute financial hardship due to orders passed by the respondents and are getting 40% salary and persons who were in DRDA in other districts of Jharkhand and whose services were confirmed prior to DRDA Rules, 2009, are getting regular pay scale for last many years, they are entitled for similar benefits, a decision to that effect shall be taken within a period of twelve weeks from the date of receipt/ production of a copy of this order. It is further made clear that since Memo no. 716, dated 16.12.2016 was stayed vide order dated 16.08.2017 in W.P.(S) No. 2316 of 2017 and it was ordered that no reduction of pay pursuant to the impugned order be effected, the petitioners are entitled for the same status and the pay scale as on 16.08.2017. 5 LPA No. 468 of 2023 34. With the aforesaid observations and directions, these writ petitions stand allowed. 35. As a sequel thereof, all the Interlocutory Applications also stand disposed of.” 9. Mr. Manish Kumar, the learned counsel appearing for the appellants- State submits that the writ petitioners were working under the DRDA which was implementing a scheme sponsored by the Central Government and the said scheme has now come to an end on 01st April 2022. The learned State counsel would further submit that on coming into force of the DRDA Rules and as the exercise to absorb the employees working under the DRDA is in process, the writ Court was not justified to hold that the writ petitioners are permanent government employees. 10. The writ petitioners produced several government orders and decisions of the Board of Management of the DRDA to demonstrate that they were treated as regular government employees. One of such government decisions was contained in letter no. 6454 dated 2nd September 2009 whereunder the sanctioned posts in the DRDAs were merged in the equivalent posts by virtue of the instruction issued by the Ministry of Rural Development, Government of India. The post of Computer Operator-cum- Clerk was also therefore merged with the equivalent post in the pay scale of Rs. 4,000-6,000/- (revised pay scale of Rs. 5,200-20,200/- with Grade Pay of Rs. 2,400/-). As the materials on records would indicate, the State of Jharkhand did not controvert before the writ Court that the writ petitioners were not being paid the salary and other allowances as indicated hereinabove. The other government orders and notifications produced by them were also not disputed by the State of Jharkhand. 11. The writ Court gave a serious consideration to the proposed action by the Departmental Secretary to give effect to the DRDA Rules a retrospective effect and held that the same was impermissible in law and would govern the employees engaged after the coming into force of the said rules. This also appears to be an admitted position that the Departmental Secretary had issued a direction for filling up of the vacant posts on contract basis which became vacant after the DRDA Rules came into force. This is a well settled proposition in law that all laws operate prospectively unless the operation of the statute is made expressly to operate from a back date. 6 LPA No. 468 of 2023 Moreover, a government employee who has rendered services for many years cannot be made to suffer adverse service conditions to his disadvantage. Leaving aside every other considerations, this is not in the realm of any doubt that the writ petitioners are entitle for pay protection and that is what seems to have been done by writ Court in the present case. The writ Court rightly held that the writ petitioners who were getting regular pay scale since last so many years are entitled for the similar benefits. 12. For the aforesaid reasons, we do not find any ground to differ with the writ Court’s opinion and, accordingly, LPA No. 468 of 2023 is dismissed. (Shree Chandrashekhar, A.C.J.) (Arun Kumar Rai, J.) Umesh-Pramanik/-