The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 326 of 2021 ------ 1. The State of Jharkhand through its Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi. 2. The Joint Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi. 3. The Engineer-in-Chief, Road Construction Department, Govt. of Jharkhand, Ranchi. 4. The Superintending Engineer, Road Construction Department, Govt. of Jharkhand, Ranchi. 5. The Executive Engineer, Road Construction Department, Road Division, Chatra. Sushila Kumari CORAM : -Versus- ----- … Appellants. …. Respondent(s)
Legal Reasoning
SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. ----- For the Appellant(s) For the respondent : Mrs. Vandana Singh, Sr. SC-I : M/s Pradeep Modi and Sarvendra Kumar, Advocates. 08/ Dated: 20.04.2023 ----- 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 24.2.2021 passed in WPS No. 6315 of 2016, whereby, the writ petition has been disposed of directing the appellants herein to regularize and reinstate the service of the writ petitioner. 2. The writ petitioner (herein the respondent), initially was appointed as Correspondence Clerk in the pay scale of Rs.1200-1800/- by the Superintending Engineer, Road Construction Department, Road Circle, Ranchi vide Office order dated 29.5.1995. The writ petitioner was transferred on the vacant post of Correspondence Clerk to the Road Construction Department, Road Division, Chatra by Office order dated 12.8.1996. Pursuant to the transfer order, the petitioner was relieved to join her new place of posting at Chatra by the Superintending Engineer, Road Construction Department vide letter dated 17.8.1996. The writ petitioner passed Hindi Noting and Drafting Examination in the year 1998 and Accounts Examination on 27.4.2009. The petitioner was granted maternity leave from 16.9.2000 to 15.11.2000 and also earned leave form 16.12.2000 to 14.1.2001 on full salary and also maternity leave on 16.8.2007 to 28.12.2007 and earned leave from 29.12.2007 to 1.1.2008 on full salary with yearly increment which is payable to the permanent government servant only, as per Rules 220 and 227 of the Jharkhand Service Code. The service book of the petitioner was opened. The petitioner was granted first time bound promotion after 2. passing of the Accounts Examination. The recommendation of grant of ACP and regularization of the service of the petitioner was made by letter dated 31.7.2010. The petitioner has also been granted 5th Revised Pay Scale of Rs.4000-6000/- w.e.f. 1.1.1996 pursuant to the decision of the Finance Department dated 8.2.1999. After continuous service of 18 years, on a complaint of a private person, the service of the petitioner was terminated on 11.6.2013, which was challenged before this Court in WP(S) No. 4061 of 2013. The writ Court vide order dated 18.6.2015 after quashing the said order, disposed of the writ petition directing the respondent-State to consider the case of the petitioner. Vide order dated 13.1.2016, the respondent rejected the case of the petitioner. Aggrieved by the same, the petitioner filed the writ, order of which, is impugned before us. 3. Counsel for the appellant (State) submitted that the petitioner was not appointed in accordance with law, thus the services of the writ petitioner cannot be regularized. The appellant-State has taken a plea that the writ petitioner was not appointed on vacant post and there was no advertisement and roster clearance, which make the appointment irregular. 4. Learned counsel for the respondent-writ petitioner by referring the judgment, submitted that the case of the petitioner was dismissed whereas similarly situated Harinandan Singh was allowed and his services were regularized, but the appellant-State did not take note of the fact that the petitioner worked for 18 years and her service book was duly opened as well as she was getting regular pay scale. He further submitted that the learned Single Judge has rightly passed the order impugned, allowing the writ application. 5. We have heard the counsel for the parties and gone through the impugned judgment/order. 6. The writ petitioner was appointed on 29.5.1995. On 12.8.1996, the petitioner was transferred to join at Chatra against the sanctioned and vacant post and her service book was duly opened. One Harinandan Singh was also dismissed on the ground that he was appointed by the same authority, who was not competent to appoint, and he was also appointed without following the procedure of law. He challenged the removal order by filing writ petition in WPS No. 556 of 2010. The said writ petition was allowed considering the judgment passed in the case of Gopal Singh V. State of Jharkhand and Others, reported in 2005(4) JLJR 614,which was affirmed by the Hon'ble Supreme Court. It is also pertinent to mention herein that considering the case of Gopal Singh (Supra), the relief was granted to Harinandan Singh by the writ Court, which was also affirmed by the Division Bench in LPA No. 519 of 2012. The learned Single Judge found 3. that the case of this petitioner and Harinandan Singh is exactly similar with the only difference that Harinandan Singh worked for 20 years whereas this petitioner worked for 18 years. The learned Single Judge further found that the State distinguished the case of this petitioner with Harinandan Singh on the ground that the service of Harinandan Singh was regularized but the petitioner's service was not regularized. It has also been held by the learned Single Judge that there was a recommendation for confirmation of service of the petitioner, which is not disputed, but the same was not acted upon and without confirming the services of the writ petitioner, she was allowed to work for 18 years. No other adverse order has been passed against the writ petitioner till his termination. 7. The learned Single Judge after considering the judgment of State of Karnataka V. Uma Devi(3), reported in (2006) 4 SCC 1 and State of Karnataka V. M.L. Kesari, reported in (2010) 9 SCC 247, held that the termination of the petitioner is bad and the petitioner needs to be regularized. The learned Single Judge especially took note of paragraph 7 of the judgment rendered in the case of M.L. Kesari (Supra) which reads 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.” 8. It is an admitted case that the State of Jharkhand has formulated Regularization Policy on 13.2.2015, pursuant to the judgment of the Hon'ble Supreme Court rendered in the case of Narendra Kumar Tiwari V. State of Jharkhand and Ors., reported in (2008) 8 SCC 238. The learned Single Judge also found that the case of the petitioner is also fit to be considered for regularization. So far as the ground taken by the State that the petitioner was not working against the sanctioned post, the learned Single Judge in paragraph 10 of the order impugned has found that the argument of the State is beyond the record, rather the service book of the 4. petitioner, which is on record, does disclose that the petitioner was working temporarily but on sanctioned post. It is an admitted case that the Executive Engineer sometime in the year 2010 had requested for confirmation of the services of the petitioner but the State kept the matter pending. 9. Considering all these aspects, the learned Single Judge allowed the writ petition by quashing the order impugned dated 13.1.2016, whereby the petitioner's service was dismissed holding that the case of the petitioner cannot be distinguished from the case of Gopal Singh (supra) and Harinandan Singh (supra). We also find that the case of this petitioner is similar to the case of Gopal Singh and Harinandan Singh. 10. Considering the detailed and reasoned judgment passed by the learned Single Judge in WPS No.6315 of 2016, we find no illegality in the same. Accordingly, this appeal is dismissed. 11. There shall be no orders as to costs. (Sanjaya Kumar Mishra, C.J.) Anu/-Cp2. (Ananda Sen, J.)