Jharkhand High Court
Kaushalya Devi vs Home Department on 16 January, 2014
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4048 of 2013
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Kaushalya Devi ... ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Secretary, Department of Home,
Government of Jharkhand, Ranchi
3. The Inspector General of Prison, Govt.
of Jharkhand, Ranchi
4. The Superintendent, District Jail, Chaibasa
... ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : M/s Saurav Arun,
Deepak Kumar Dubey, Advocates
For the State : Mr. Deepak Prasad, J.C. to G.P. III
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08/16.01.2014Heard the learned counsel appearing for the parties and perused the documents on record.
2. The husband of the petitioner was appointed as Warder in District Jail, Chaibasa. He continued in service till the year, 2005. When by order dated 02.11.2005 his salary was stopped, the husband of the petitioner along with others approached this Court in W.P.(S) No. 433 of 2007 which was disposed of by order dated 05.04.2007 directing the respondent no. 2 to consider the claim of the petitioner and pass an appropriate order. It was also directed by this Court that, if the petitioners were found entitled to get their salary, it would be paid to the petitioners therein within a period of six weeks thereafter.
3. A perusal of the memorandum of W.P.(S) No. 433 of 2007 would disclose that the husband of the petitioner had challenged order dated 02.11.2005 and a prayer was also made for regularising the service of the petitioners therein. 2 Pursuant to order passed by this Court on 05.04.2007, order dated 10.03.2008 was passed noticing that the husband of the petitioner continued in service for more than 20 years and therefore, he should be paid salary. It has also been observed in order dated 10.03.2008 that, there are 32 posts of Warder and 10 posts of Senior Warder still vacant in Birsa Munda Central Jail, Hotwar, Ranchi. By order dated 10.03.2008, the Home Secretary, Government of Jharkhand directed the Jail Superintendent to take a decision in the matter however, since no decision was taken and in the meantime, the husband of the petitioner died on 23.07.2012, the petitioner approached the authorities for regularisation of the service of her husband and for her appointment on compassionate ground.
4. A counter-affidavit has been filed taking a stand that the husband of the petitioner was a temporary Warder and work taken from him was need based and therefore, the claim of the petitioner is liable to be rejected. Paragraph Nos. 11 to 13 of the counter-affidavit are extracted below:
11. That it is stated that therefore appellants husband late Pashupati Singh as a temporary warder always worked as need based of his duty of the Jail on the ground that any time it can be removed from his duty. That is why such type of job or temporary basis cannot be taken as a regular appointment. Then, question does not arise of pension, Gratuity etc. like Govt. regular employee that is why the claim can be dismissed.3
12. That it is stated that Amid, Benjamin Hembram and others has filed a WPS No. 433/2007 in Hon'ble High Court, Ranchi because the jail superintendent Central jail, Ranchi had stopped their wages. Hon'ble High Court had passed an order dated 4.4.2007 that the Secretary, Department of Home Jharkhand, Ranchi to consider the petitioners claim and pass appropriate order in accordance with law within a period six weeks from the date of receipt/production of a copy of this order. If the petitioners are found entitled to get their salary, the arrear of the same must be paid to the petitioners.
13. That it is stated that in the light of above order of Hon'ble High Court, the Secretary, Home Department of Jharkhand, Ranchi has passed standing order after hearing both parties petitioners as well as Jail authority. If wages of petitioner's are held up wages should be paid. The Personal Administrative Reforms department, Bihar has issued a letter no. 5940 dated 18.6.1993 that temporary deployed before dated 1.8.1985 may be absorbed as per rule provided by Govt. and availability of vacant post. Petitioner's deployments are after the dated 1.8.1985 hence above mentions letter of memo no. 5940 dated 18.6.1993 the Personal Administrative Reforms department Bihar is not effective in this case."
5. The learned counsel appearing for the petitioner has submitted that though, a specific direction was passed by this Court on 05.04.2007 in W.P.(S) No. 433 of 2007 to 4 consider the representation of the husband of the petitioner and others however, though the salary for the aforesaid period was paid to the husband of the petitioner, a part of salary was withheld and the case of the husband of the petitioner for regularisation was not considered by the respondent-authority. The learned counsel appearing for the petitioner has submitted that though, it has been found by the respondent-authority himself that the husband of the petitioner continued in service for more than 20 years and therefore, he was entitled for payment of salary, on a ground which cannot be justified in law, the prayer for regularising the service of the husband of the petitioner is now sought to be denied. The learned counsel appearing for the petitioner has further submitted that, the plea taken in the counter-affidavit is contrary to the order passed by the Home Secretary on 10.03.2008 in as much as, in order dated 10.03.2008 no where it has been stated that the husband of the petitioner worked on a temporary arrangement and work taken from him was need based. It has been specifically found in favour of the husband of the petitioner and others by the Home Secretary that they continued in service for 20 years and there are vacancies for the post of Warder, still for no justifiable reason, the husband of the petitioner was continued in service for more than 20 years without regularisation. He further submits that, though the amount on account of P.F. has been 5 sanctioned, it has not been released to the petitioner.
6. As against the above, the learned counsel appearing for the respondents has submitted that, since the husband of the petitioner was not a permanent employee therefore, the petitioner cannot be offered appointment on compassionate ground. He has further submitted that, since the rule with respect to appointment of Warder has been framed only on 16.07.2013, the process for appointment/regularisation of the husband of the petitioner and other similarly situated persons could not take place.
7. Having appreciated the contentions raised by the learned counsel appearing for the parties, I am of the opinion that the respondents were not justified in keeping the husband of the petitioner for more than 20 years on the post of Warder on temporary basis. It is not the case of the respondents that the husband of the petitioner was not eligible. There are as many as, 32 posts of Warders vacant in the Birsa Munda Central Jail, Hotwar, Ranchi however, inspite of specific order passed by this Court on 05.04.2007, the issue of regularisation of the husband of the petitioner has not been decided by the respondent-authority. Since the rules for appointment on the post of Warders has been notified only on 16.07.2013, it is not even open to the respondents to take a plea that the regularisation of the husband of the petitioner would be contrary to the Recruitment Rules. Since the husband of the petitioner 6 continued to work for more than 20 years, it is also not open to the respondent-authority to take a plea that regularisation of the husband of the petitioner would be in violation of the provisions under Articles 14 and 16 of the Constitution of India as, the husband of the petitioner should have been appointed on vacant post, in accordance with law, long back.
8. In "Dharwad Distt. P.W.D. Literate Daily Wage Employees Association & Ors. Vs. State of Karnataka & Ors.", reported in (1990) 2 SCC 396, the Hon'ble Supreme Court has held as under:
14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-
second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood."
15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated:
"Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly if necessary, and there seems to be little doubt that coercion will often be necessary."
These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the 7 benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote:
"The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished, not the thing."
Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami:
"It is imperative that all this various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and meditate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. That is religion."
16. The relevant constitutional philosophy should be the substitute for religion and it must be allowed to become a part of every man in this country; then only would the Constitution reach everyone and he or she would be nearer the goals set by it. That perhaps can happen in every field."
9. In "Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors.", reported in (2000) 6 SCC 493, the Hon'ble Supreme Court has observed as under:
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8. The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12, has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer -- it is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life -- the answer cannot however but be in the negative -- what happens to the constitutional philosophy as is available in the Constitution itself which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning.........."
10. In "Secretary, State of Karnataka & Others Vs. Uma Devi and Others", reported in (2006) 4 SCC 1, the Hon'ble Supreme Court has held as under,
53. "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 India, the State Governments and their 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 should further ensure that 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................"
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11. I find that in the counter-affidavit the respondents have admitted that deductions on account of G.P.F. and insurance from the salary of the husband of the petitioner were made. A copy of order dated 20.03.2013 has been brought on record which would indicate that an amount of Rs. 86,825/- has been paid to the petitioner on account of Group Insurance Policy. It also appears from the record of the case that the husband of the petitioner was granted revised pay-scale as per 6th Pay Commission Report. A separate Bank Account was open in which the salary of the husband of the petitioner was remitted regularly.
12. In view of the aforesaid circumstances, I am of the opinion that though, a formal order for regularisation of service of the husband of the petitioner was not passed, he continued in service for more than 20 years on permanent basis. In the aforesaid facts, I am of the view that the husband of the petitioner was though entitled for regularisation in service on the post of Warder, he was illegally denied benefit of the same. Since the husband of the petitioner has died on 23.07.2012 and there is no prayer for directing the respondents to grant family pension to the petitioner, it would serve the ends of justice, if for the purpose of granting compassionate appointment to the petitioner, the husband of the petitioner is treated as a permanent employee.
13. The writ petition is allowed to the extent that the 10 claim of the petitioner for appointment on compassionate ground would be considered by the respondent-authority as if, the husband of the petitioner was a permanent employee. It is further ordered that arrears of salary if any, for the period for which the husband of the petitioner worked, would be released to the petitioner. The respondent-authority is also directed to release the amount of P.F. to the petitioner.
(Shree Chandrashekhar, J.) Amit/A.F.R.