Jharkhand High Court
Rajeshwar Tiwary vs State Of Jharkhand & Ors on 31 August, 2017
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3885 of 2009
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Rajeshwar Tiwary son of late Mangal Tiwary, resident of Hinoo Chowk,
Mahabir Mandir, P.S. Doranda, District Ranchi.
... Petitioner
-versus-
1. The State of Jharkhand through Secretary, Road Construction Department,
Nepal House, Doranda, Ranchi.
2. The State of Bihar, Secretary, Road Construction Department,
Vishwesaraya Bhawan, Baily Road, Patna, P.O. & P.S. Baily Road, Dist.
Patna, Bihar.
3. Engineer in Chief, Road Construction Department, Jharkhand, C.M.P.D.I.,
Kanke Road, Ranchi, P.O. & P.S. Gonda, Dist. Ranchi.
4. Chief Engineer Mechanical Road Construction Department, Jharkhand,
C.M.P.D.I., Kanke Road, Ranchi, P.O. & P.S. Gonda, Dist. Ranchi.
5. Superintending Engineer (Mechanical), Road Construction Department,
Ranchi.
6. The Executive Engineer (Mechanical), Road Construction Department,
Ranchi.
7. The Executive Engineer, Road Construction Department, Hazaribagh.
8. The Engineer in Chief, Road Construction Department, Vishwaraiya
Bhawan, Baily Road, Patna. ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mrs. Asmita Srivastava, Advocate
For the Respondents : Mrs. Richa Sanchita, S.C.V.
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2 / 31.08.2017The petitioner has challenged the order dated 31.12.2004, as contained in Memo No.408 issued by the Superintending Engineer, Engineering Circle, Road Construction Division, Ranchi.
2. As per the petitioner, he was appointed and worked from 1995 to 1998 in the said division and thereafter no work was taken from the petitioner. The petitioner submits that as per the respondents there are 3281 posts lying vacant in the department, and that being so, the petitioner, since he has worked from 1995 till 1998, is deemed to have been appointed against the vacant post.
3. It is submitted that one of the employees, Etwa Oraon had moved before this Court in C.W.J.C. No. 2338 of 1998(R), which was disposed of with a direction to the respondents to take necessary steps for filling 2 up the posts lying vacant in the Road Construction Department. It is also submitted that the petitioner had also filed a writ application being C.W.J.C. 1407 of 1999(R) praying for regularisation of services. The said writ application was disposed of with a direction to the respondents to consider the representation of the petitioner, wherein they are claiming regularisation. The representation of the petitioner was considered and vide order dated 31.12.2004 the same was rejected. The order of rejection has been brought on record as Annexure 5 to this writ application, which is under challenge. The main ground for rejection is that there was no advertisement pursuant to which the petitioner was appointed and in fact reservation policy was also not followed and thus, the appointment of the petitioner is absolutely illegal.
4. Learned counsel for the respondents-State opposes the prayer and submits that the petitioner was appointed in an illegal manner and that being so, he is not entitled to get any relief. Counsel for the State also refers to the order passed by this Court in C.W.J.C. No.2338 of 1998(R) in the case of Etwa Oraon & Others versus State of Bihar & Others and submits that this Court has observed that admittedly the petitioner was appointed by the respondents without following the procedure and the recruitment rules and thus, they have no legal right to claim regularisation. It is prayed that on this ground this writ application is liable to be dismissed.
5. From the submissions made by the parties, it is clear that the petitioner has worked from 1995 till 1998 only. Admittedly, the petitioner was appointed by the Department without following the procedure of law. There was no advertisement preceding his appointment nor the rules were followed. These facts find support from the order dated 27.11.1999 passed by this Court in C.W.J.C. No.2338 of 1998(R). Thus, the appointment of this petitioner is absolutely in violation of the constitutional provisions. The earlier writ application filed by the petitioner, was disposed of only by giving a liberty to approach the authorities and authorities were directed to consider the case of the petitioners as per law. No positive direction was given to regularise the service of the petitioner. A decision was taken concluding that the appointment of this petitioner itself was illegal. Thus, it was decided that there cannot be any regularisation.
36. Since the very appointment of the petitioner is illegal and not irregular, the petitioner cannot, as a matter of right, claim regularisation. Thus, I find no merit in this writ application. If in future any posts are advert ised, the petitioner is at liberty to apply for the same if he fulfills all the eligibility criterias.
7. With these observations, this writ application is dismissed.
( Ananda Sen, J.) Kumar/Cp-02