Jharkhand High Court
3 vs The State Of Jharkhand on 8 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 858 of 2019
(Arising out of Judgement dated 16.08.2019 passed in W.P. (S) No. 3477 of 2002)
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1. Nazir Ahmad, aged about 57 years, s/o Md. Idris, Resident of Harka Road, Tinplate, P.O. & P.S. Goulmuri, Jamshedpur, Distt. Singhbhum (East), Jharkhand At present Resident of: Vatika Green Valley, Flat No. 1/1, Near Chepa Pul, Pardih, P.O. & P.S. Pardih, Jamshedpur
2. Rajesh Kumar, aged about 47 years, s/o R.A. Prasad, Resident of Qr. No. 54/2/2, Road No. 2, P.O. Bagbera, P.S. Bagbera, Jamshedpur, District, Singbhum (East), Jharkhand
3. Gautam Shaw Hemant, aged about 50 years, s/o Kumar Shaw, Resident of Village- Bend, P.O.- Bend, P.S.- Chakulia, District- East Singhbhum, Jharkhand
4. K.V. Prabhakar, aged about 53 years, s/o- Late K.A. N. Rao, Resident of 260/B, Birsanagar Zone No. 6, P.O. & P.S. Birsanagar, Jamshedpur, District-Singhbhum-East, Jharkhand
5. Bindu Jha, aged about 53 years, w/o-Bishnudeo Jha, Resident of Quarter No. 5, Road No. 6, Ramnagar, P.O. & P.S.- Sonari, Jamshedpur, District
-Singhbhum, (East) Jharkhand
6. Sushma Kanti Kujur, aged about 53 years, s/o-Cyril Kujur, Resident of JEP 34, P.O. & P.S.- Rajendra Nagar, Jamshedpur, District- Singhbhum, (East) Jharkhand
7. M.K. Ambastha, aged about 47 years, s/o- Lalit Kishore Ambastha, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand
8. Kiran Sinha, aged about 46 years, w/o- Manoj Sinha, Resident of Jairaj Villa Opposite Jibralter, Canary Hill Road, P.O. & P.S.- Sadar Hazaribagh, District- Hazaribagh, Jharkhand
9. Vivek Kumar, aged about 45 years, s/o- Satyanarayan Prasad Modi, Resident of Bodara House, P.O. & P.S.- Gandhi Tola, District- Chaibasa, Jharkhand
10. Sashi Verma, aged about 56 years, s/o- Brahmanand Verma, Resident of Madhubazar, P.O. & P.S.- Madhubazar, District- Chaibasa, Jharkhand
11. Kanhaiya Pathak, aged about 49 years, s/o- Ramkishore Pathak, Resident of Gandhi Tola, P.O. & P.S.- Gandhi Tola, District- Chaibasa, Jharkhand At present Resident of: C/o Uday Pratap Singh, Road No. 3, Baikunth Nagar, Mango, P.O. & P.S. Mango, Jamshedpur, District- Singhbhum (East), 831012
12. Ratan Bhushan Srivastava, aged about 52 years, s/o- Late Shashi Bhushan, Resident of Narsingh Shaw, Bara Nimdih, P.O. & P.S.- Bara Nimdih, District- Chaibasa, Jharkhand At present Resident of: 502, Maa Laxmi Plaza, Harmu Housing Colony, P.O. & P.S. Argora, Ranchi
13.Kaushal Kishore, aged about 47 years, s/o- Murlidhar Prasad, Resident of c/o- Sunil Karwan Kalyanpur, P.O. & P.S.- Guttusai, District- Chaibasa, Jharkhand At present Resident of: Near ITI Bajra, Pahan Toli, P.O. Hehal, PS s Ranchi Housing Colony, P.O. Heha, P.S. Sukhdeonagar, Ranchi L.P.A. No. 858 of 2019 -2-
14. Anup Kumar Jaiswal, aged about 50 years, s/o-Satyanarayan Bhagat, Resident of Sen Tola, P.O. & P.S.- Sen Tola, District- Chaibasa, Jharkhand
15. Avinav Kumar, aged about 44 years, s/o- Yogendra Prasad, Resident of Bodara House, Gandhi Tola, P.O. & P.S.- Gandhi Tola, District- Chaibasa, Jharkhand At present Resident of: Hariom Mega Township, Humbai, Devi Darshan Road, P.O. Bikash Neori, P.S. Sadar, Ranchi
16. Raghuber Tiwari, aged about 49 years, s/o- Shinandan Tiwari, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand At present Resident of: Khirwal Building, Room No. 213, Sadar Bazar, P.O. & P.S. & District - Chaibasa -833201
17. S.B. Chaturvedi, aged about 55 years, s/o- M.S. Chaturvedi, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand At present Resident of: JEP Block Campus, P.O. & P.S. Chatra, District- Chatra, Jharkhand
18. Dilip Kumar, aged about 49 years, s/o- Late Badri Prasad, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand
19. Ashok Kumar Sinha, aged about 51 years, s/o- Deonarayan Prasad, Resident of JEP Block Campus, P.O. & P.S.- Chatra, District- Chatra, Jharkhand At present Resident of: C/o Ranjit Agarwall, - Mantri Mohalla, P.O.& P.S. & District- Latehar
20. Vijay Kumar, aged about 54 years, s/o- Late Gowardhan Singh, Resident of JEP Block Campus, P.O. & P.S.- Chatra, District- Chatra, Jharkhand At present Resident of: C/O Rinku Gupta, Mandal Basti, Dhaiya, P.O. & P.S. Dhaiya, Dhanbad
21. Shakti Nandan Mishra, aged about 47 years, s/o- Late Kanhaiya Prasad, Resident of JEP Block Campus, P.O. & P.S.- Chatra, District- Chatra, Jharkhand At present Resident of: Patel Nagar, Road No, 6B, Hatia, P.O.& P.S., Hatia, Ranchi
22. Ganesh Kumar, aged about 53 years, s/o- Jaipal Singh, Resident of DIET Campus, P.O. & P.S.- Ratu, District- Ranchi, Jharkhand
23. Nishi Prabhya, aged about 55 years, W/o- R.C. Thakur, Resident of Vidyapati Nagar, Kanke Road, P.O. & P.S.- Kanke, District- Ranchi, Jharkhand
24. Sanjay Kumar, aged about 56 years, s/o- Late Shiv Sharan Prasad, Resident of JEP, Dewangana Chowk, P.O. & P.S.- Korrah, District- Hazaribagh, Jharkhand At present Resident of: Road No, 4, Yashwant Nagar, Barkagaon Raod, P.O.& P.S., Yashwant Nagar, Hazaribagh
25. Kumar Vimal Singh, aged about 48 years, s/o- Vijay Bahadur Singh, Resident of Block Campus Gamhari, P.O. & P.S.- Gamhari, District- Saraikela, Jharkhand At present Resident of: Qr.No, 3-170, Street No. 06, Sector II D, P.O. & P.S., Bokaro Steel City, Bokaro Steel City, Bokaro L.P.A. No. 858 of 2019 -3-
26. Rita Kumari, aged about 49 years, s/o- Bipin Kumar Singh, Resident of Road No. 27, Block No. 341/212, Adityapur-2, P.O. & P.S.- Adityapur, District- Saraikela, Jharkhand ... ... Petitioners /Appellants Versus
1. The State of Jharkhand
2. Jharkhand Education Project Council through its Chairman, Ranchi, Project Bhawan, P.O.- Dhurwa, P.S.- Jagarnathpur, District- Ranchi
3. State Project Director, Jharkhand Education Project Council, Project Bhawan, P.O.- Dhurwa, P.S.- Jagarnathpur, District- Ranchi
4. Secretary, Personnel and Administrative Reforms Department, Jharkhand, Project Bhawan, P.O.- Dhurwa, P.S.- Jagarnathpur, District- Ranchi ... ... Respondents / Respondents
5. Vaidehi Mishra W/o- Dr. V.K. Mishra, Resident of 5/45, Dindali Basti, P.O. Adityapur, P.S.- Adityapur, District- West Singhbhum, Jharkhand
6. Jugal Kishore Bag s/o Pradhan Bag, resident of JEP, 34, Rajendra Nagar, P.O. & P.S. Rajendra Nagar, Jamshedpur, District- Singhbhum, Jharkhand
7. Seema Sinha d/o- U.P. Sinha, Resident of 79, Subernrekha Flats, P.O. & P.S.- Sakchi, Jamshedpur, District- Singhbhum (East) Jharkhand
8. D.K. Choudhary s/o- A. Prasad Choudhary, Resident of Laksham Tiwari, Kailash Nagar, P.O. & P.S.- Sonari, Jamshedpur, District- Singhbhum (East) Jharkhand
9. Kaushlendra Kumar, S/o- M. Singh, Resident of JEP, 34, Rajendra Nagar, P.O. & P.S.- Rajendra Nagar, Jamshedpur, District- Singhbhum (East) Jharkhand
10.Romila Dadel, w/o- P, Horo, Resident of Birsanagar Zone, No. 1-10, H. No. 38, P.O. & P.S.- Birsanagar zone, District- East Singhbhum, Jharkhand
11.Swapan Kumar Chandra s/o- K.N. Chandra, Resident of House No. 8/2, Nirmalnagar Home Pipe, P.O. & P.S., - Sakchi, District- Jamshedpur, District-Singhbhum (East) Jharkhand
12.Umesh Kumar Mishra s/o- D. Mishra, Resident of JEP 34, P.O. & P.S.- Rajendra Nagar, Jamshedpur, District Singhbhum (East) Jharkhand
13.Moni Deepa Kundu d/o- Deepa Kundu, Resident of JEP 34, P.O. & P.S.- Rajendra Nagar, Jamshedpur, District- Singhbhum (East) Jharkhand
14.Tara Pad Paul s/o- N.C. Paul, Resident of Village- Gamharia, P.O.& P.S.- Gamharia, District- Saraikela Kharsawan Jharkhand
15.Rajesh Tigga s/o Late Joseph Tigga, Resident of JEP 34, P.O. & P.S.- Rajendra Nagar, Jamshedpur, District- Singhbhum (East) Jharkhand
16.Anil Kumar Sinha s/o- D, Prasad, Resident of Chotagovindpur Housing Colony, Quarter No. 17/2/4, P.O. & P.S. Chotagovindpur Housing Colony, Jamshedpur, District -Singhbhum (East) Jharkhand
17.Alois Horo s/o- Jhon Horo, Resident of Road No. 6, Kuthkudongari, P.O. & P.S.- Mango, District- Jamshedpur, District - Singhbhum, (East) Jharkhand
18.Jiwani Pushpa Nag, s/o Jaipal Chand Nag, Resident of c/o- Phulchand Swarmal, P.O. & P.S.- Madhubazar, District - Chaibasa, Jharkhand L.P.A. No. 858 of 2019 -4-
19.Samrendra Nath Jha, s/o- Bihari Jha, Resident of Devimandap Road, P.O. & P.S.- Hesal, District- Ranchi, Jharkhand
20.Manoj Kumar Singh, s/o kailash Prasad Singh, Resident of Gandhi Tola, P.O. & P.S.- Chaibasa, District- Chaibasa, Jharkhand
21.Naval Kishore Verma, s/o- Karoo Singh, Resident of Bodara House, Gandhi Tola, P.O.- Gandhi Tola, P.S.- Chaibasa, District- Chaibasa, Jharkhand
22.Nageshwar Prasad Mukherjee, s/o- Banmali Prasad Mukherjee, Resident of new Colony, Near Santoshi Mandir, P.O. & P.S. Chaibasa, District- Chaibasa, Jharkhand
23.Md. Anwar Ali, s/o Late Md. Tahur, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S. JEP DLO, District- Dumka, Jharkhand
24.Manoj Sinha, s/o- Raj Kumar Prasad Verma, Resident of Jairaj Villa Opposite, Jibralter, Canary Hill Road, P.O. & P.S.- Sadar Hazaribagh, District- Hazaribagh, Jharkhand
25.Surendra Kumar Suman, s/o- Rambilash Prasad, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand
26.Sashi Kant Prasad, s/o- Bhumi Prasad, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand
27.Arjun Prasad, s/o- Sheo Sharan Prasad, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO District- Dumka, Jharkhand
28.Ravi Kumar, s/o- Nityanand Prasad, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO District- Dumka, Jharkhand
29.Kishlay Kumar Sinha, s/o- Shreekant Sinha, Resident of Sinha Bhawan, P.O. & P.S.- Malviya Nagar, District- Hazaribagh, Jharkhand
30.Josphin Bara, d/o - Habil Bara, Resident of Prabhat Nagar, P.O. & P.S.- Hasmi, Hasmi Jamshedpur, District- Singhbhum (East) Jharkhand,
31.Raj Kumar Singh, Ss/o- Ramawatar Singh, Resident of c/o- Sampat Das, Dhangar Toli, P.O. & P.S.- Chatra, District- Chatra, Jharkhand
32.Raman Kumar Singh, s/o- Sita Ram Singh, Resident of Chandimal Jain Colony, Marwari Tola P.O. & P.S.- Chatra, District- Chatra, Jharkhand
33.Ashok Kumar, s/o Sankar Ram, Resident of Chandimal Jain Colony, Marwari Tola P.O. & P.S.- Chatra, District- Chatra, Jharkhand
34.Arun Kumar s/o- Gobardhan Pandit, Resident of Awwal Mohalla, P.O. & P.S.- Chatra, District- Chatra, Jharkhand
35.Manoj Kumar Singh, s/o- Rasbihari Singh, Resident of Chandimal Jain Colony, Marwari Tola P.O. & P.S.- Chatra, District- Chatra, Jharkhand
36.Kuldeep Paswan, s/o- Late Chedi Paswan, Resident of Dhangartoli, P.O. & P.S.- Chatra, District- Chatra, Jharkhand
37.Sanjay Kumar Singh, s/o- Ram Lakhan Singh, Resident of Nawadah, P.O. & P.S.- Baraini, District-Chatra, Jharkhand
38.Sanjay Rajak, s/o Ambika Rajak, Resident of Awwal Mohalla, P.O. & P.S.- Chatra, District- Chatra, Jharkhand
39.Mahendra Kumar Sharma, s/o- Late Mathura Singh, Resident of Ingunia, Brindaban, P.O. & P.S. Chouparan, District- Hazaribagh, Jharkhand
40.Pradeep Kumar Paswan, s/o- Late Anchu Paswan, Resident of Dhangar Toli, P.O. & P.S.- Dhangar Toli, District- Chatra, Jharkhand
41.Devendra Prasad Rastogi, s/o Late Shyam Sundar Prasad Rastogi, Resident of Awwal Mohalla, P.O. & P.S.- Chatra, District- Chatra, Jharjkhand L.P.A. No. 858 of 2019 -5-
42.Dr. Ram Pravesh Yadav, s/o Deoki Yadav, Resident of DIET Campur, P.O. & P.S.-Taru, District- Ranchi, Jharkhand
43.Chariya Kerketta, d/o- Soma Uraon, Resident of Guttua Toli. P.O. & P.S.- Hurhuri Ratu, District- Ranchi, Jharkhand
44.Deepak Kishore, s/o- Late Vishnu Prasad Singh, Resident of Devi Mandap Road, P.O. & P.S.- Hehal, District- Ranchi, Jharkhand
45.Arvind Kumar, s/o Rajdeo Singh, Resident of Quarter No. - 6, DIET, P.O. & P.S. -Ratu, District- Ranchi, Jharkhand
46.Pikendra Kumar Mehta, s/o Surendra Sen Mehta, Resident of DIET Campus, P.O. & P.S.- Ratu, District- Ranchi, Jharkhand
47.Awadesh Kumar Singh, s/o-Late Achrya Singh, Resident of DIET Campus, P.O. & P.S.- Ratu, District- Ranchi, Jharkhand
48.Ajay Kumar Sinha, s/o Janmejai Prasad, Resident of DIET Campus, P.O. & P.S.- Ratu, District- Ranchi, Jharkhand
49.Pushpa Kerketta, w/o- Surendra Sundi, Resident of Upper Hatia Pitiyatoli, P.O. & P.S.- Hatia, District- Ranchi, Jharkhand
50.Lalima Jyotsana Lakra, w/o- Binod Toppo, Resident of Harmu, Nayatoli, P.O. & P.S.- Harmu, District- Ranchi, Jharkhand
51.Prity Prasad, w/o- Late Manoj Prasad, Resident of c/o Late Bhagwan Sahay, Yadobabu Chowk, P.O. & P.S. Yadobabu, District- Hazaribagh, Jharkhand
52.Sanjay Kumar Tiwari, s/o Madan Mohan Tiwari, Resident of Devangana Chowk, P.O. & P.S.- Korrah, District- Hazaribagh, Jharkhand
53.Sushil Kumar, s/o- Ramawatar Yadav Raman, Resident of Suresh Colony, P.O. & P.S.- Hazaribagh, District- Hazaribagh, Jharkhand
54.Binod Kumar, s/o Kusumlal Sah, Resident of Basic School Ramgarh, P.O. & P.S.-Ramgarh, District- Ramgarh, Jharkhand
55.Arvind Kumar Jha, s/o Jayshankar Jha, Resident of near NHAI Office, P.O. & P.S.- Koderma, District- Koderma, Jharkhand
56.Ranjit Prasad Singh, S/o- Anirudh Singh, Resident of Barhi, P.O. & P.S.- Barhi, District- Hazaribagh, Jharkhand
57.Raj Narayan Pathak, s/o - Late Tulsi Pathak, Resident of Gandhi Nagar, P.O. & P.S.- Matwari, District- Hazaribagh, Jharkhand
58.Krishna Kumar Verma, s/o- Late Shyam Sundar Prasad, Resident of Purani Kalali Road, P.O. & P.S. Purani Kalali Road, District-Chatra, Jharkhand
59.J.K. Chaubey, s/o- Ram Krishna Chaubey, Resident of Upper Building, P.O. & P.S.- Deoghar, District- Deoghar, Jharkhand
60.Shiv Shankar Prabhat, s/o- Satyadeo Prasad, Resident of Amravati Colony, P.O. & P.S. Amravati Colony, District- Ranchi, Jharkhand
61.Sanjeev Ranjan, s/o- Permanand Sharma, Resident of Kadru, P.O. &P.S.- Kadru, District- Ranchi, Jharkhand
62.Naresh Mirdha, s/o- late Chando Mirdha, Resident of Akil Batti Bhawan, JEP DLO, P.O. & P.S.- JEP DLO, District- Dumka, Jharkhand ... ... Petitioners / Proforma Respondents
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L.P.A. No. 858 of 2019-6- CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Pratyush Kumar, Advocate
: Mr. Ganesh Pathak, Advocate
For the Respondent : Mr. Devesh Krishna, A.P.P.
For the J.P.S.C. : Mr. Krishna Murari, Advocate
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Order No. 08 / Dated: 8th August, 2023
I.A. No. 11654 of 2019
This interlocutory application being I.A. No. 11654 of 2019 has been preferred under Section 5 of the Limitation Act for condoning the delay of 55 days in preferring the instant appeal.
2. Considering the sufficient cause as has been referred in the interlocutory application and having no objection on the part of the Respondents, the delay of 55 days in preferring the appeal is hereby condoned.
3. I.A. No. 11654 of 2019 stands allowed.
L.P.A. No. 858 of 2019
4. Heard the parties.
5. The appeal is under clause 10 of the Letters Patent is directed against the impugned judgement dated 16.08.2019 passed by the learned Single Judge of this Court by which the prayer for regularisation of the services of the writ petitioners and in consequence upon to release the regular pay-scale has been denied by dismissing the writ petition.
6. The brief facts of the case as per the pleading made in the writ petition are required to be narrated herein under:
L.P.A. No. 858 of 2019-7-
7. The petitioners have preferred the writ petitions for a direction in the nature of mandamus especially to the Jharkhand Education Project Council (Hereinafter to be referred as the "JEPC") for regularization in service w.e.f. date they have been appointed in accordance with mandate of the Articles 14 and 16 of the Constitution of India and additional prayer has been added in the writ petition for commanding upon the respondents to allow the petitioners to continue on their respective posts on which they are rendering their services with various project continue under JEPC or any other Council if changed later on.
8. Initially the writ petition was filed on behalf of the 84 petitioners but at present only 43 petitioners are working and rest have left the job of the JEPC. The petitioners were earlier appointed by the then Government of Bihar under the Bihar Education Project Council (Hereinafter to be referred as the BEPC) which was created by the then State of Bihar, which is an autonomous Society Registered under the Societies Registration Act, 1860. The general counsel of the then Bihar Education Project Council was headed by the Chief Minister as its President and the other officers of the State are also part of the Council. The BEPC advertised appointment for various posts on 4.8.1995 and 5.11.1995 on the post of Project Officer, Programme Officer, State Resource Person, District Resource persons and Assistant Resources having different pay scales. Pursuant to that, some of the petitioners applied and accordingly, written test was held in the year 1995 followed by the interview and group discussions and thereafter they were L.P.A. No. 858 of 2019 -8- appointed on the post as noted above. Again, the BEPC had advertised the advertisement in the month of April, 1997 for appointment in various capacities. Pursuant to that, some of the petitioners also applied and written test was held on 21st July, 1997 on which most of the petitioners have appeared and declared successful. Thereafter the petitioners participated in workshop/discussions/ interview on 19th/20th and 21st of August, 1997 and were offered appointment letters on the terms and conditions depicted therein, and thereafter the petitioners were sent for training after completion of 10 days orientation training as per the offer letters which were issued with the appointment letters as contained in annexure-7 to the writ petition. In the appointment letter it is specifically stated that the petitioners were initially appointed for one year on contract basis in the meantime, Bihar Shiksha Pariyojna Parishad (Herein after to be referred as the "Parishad") was created and with due consent of the then Government of Bihar, the petitioners were brought under the Parishad, and after creation of State of Jharkhand, the petitioners have continued to render their services in different districts in the State of Jharkhand. State of Jharkhand has constituted Jharkhand Shiksha Pariyojna Parishad on 12th April, 2001 and the said Parishad has been registered under the Societies Registration Act, 1860. The petitioners, who were working earlier under the Parishad, came within the purview of the State of Jharkhand Shiksha Pariyojna Parishad and became the employee of Jharkhand Shiksha Pariyojna Parishad and since then i.e.12th April of 2001 all the petitioners have been working under the said newly created Parishad in the State of Jharkhand. Presently the petitioners L.P.A. No. 858 of 2019 -9- are getting a consolidated salary which included basic and D.A. learned counsel for the petitioners contended that they are fit to be regularized in service as they are working since 1995-99. He submits that recruitment method is prescribed in the serviced regulation in regulation file as appended in the paper book of page 228 and according to that, the recruitments are being made (i) by direct recruitment (ii) by deputation of an employee or
(iii) on contract for a specific period. He further submits that in view of regulation 44 (iii) (a) of the said Regulation which says about scales of pay in respect of post to be created by the Executive Committee shall correspond either in the Central Government or State Government scale of pay. He has further drawn the attention to the Regulation 14 which says about temporary and Regular Service. For the sake of convenience Regulation 14 (i) and (ii) are quoted in herein below: -
(I) An employee shall be temporary employee of the Parishad till he is appointed as a regular employee to a regular post under the Parishad.
(II) An employee except appointed on contract or deputation appointed against regular post under the Parishad shall be regular employee of the Parishad.
9. He further argues that the petitioners are working since 1995-99 and looking into the period of work the petitioners are needed to be regularized with JEPC. He further submits that education has been brought under the fundamental rights by way of amendment under Article 21 and Article 21A has been inserted in the Constitution of India which says that it is L.P.A. No. 858 of 2019 -10- responsibility of the State to carry right of education in different part of the countries that is why Parishad is working under the scheme of the Government of India in which a particular amount of the fund is being provided by the State Government. He further argues that nature of the work is continuing in process. He further submits that in the regulation mode of payment is provided and seeing the nature of the work then JEPC is required to create the post for appointment on regular basis so that uncertainty of the career of the petitioners may come to an end. To buttress this argument he has relied on the decision in the case of Mahesh Chandra Verma Vs. State of Jharkhand and Ors. reported in (2018) 7 SCC 270 and relied in para 16 and 17 which is quoted herein below.
"16. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Tract Court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal (2) and in Mahesh Chandra Verma the necessary corollary must also follow, of giving benefit of the period of service in Fast Tract courts for their pension and retiral benefits. The methodology of non- creation of adequate L.P.A. No. 858 of 2019 -11- regular cadre posts and the consequent establishment of Fast Tract Courts manned by the appellants cannot be used as a rose to deny the dues of the appellants.
17. In a different factual context but on the principle laid down, we take note for the judgment. In Nihal Singh V. State of Punjab of a Bench of this Court to which one of us was a member. The State of Punjab in the 1980s was faced with larger scale disturbance and was not in a position to handle the prevailing law and order situation with the available police personnel and, hence, resorted to recruitment under Section 17 of the Police Act, 1861 (hereinafter referred to as "the Act") for appointing special Police Officers (SPOs). The SPOs were assigned the duty of providing security to banks, for which the financial burden (S) 277 was to be borne by the banks, with the clear understanding that, as per the provisions of the Act, such police officers were to be under the discipline and control of the Senior Superintendent of Police of the District concerned, Such SPOs provided yeoman service in difficult times but when their case was considered for regularisation subsequently, it met with an unfavourable response by an order passed in the year 2002. This Court while recognising that the creation of a cadre or sanctioning of posts was exclusively within the authority of the State, opined that if the State did not choose to create a cadre but chose to make appointment s of persons creating contractual relationship only, such action would be categorised as arbitrary nature of exercise of power. In this context, it was observed by the Bench, thus: (SCC p. 74, para 20) "20.....Sanctioned posts do not fail from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need."
Thus, the facts found showed that there was the existence of a need for creation of posts and the failure to create such posts or L.P.A. No. 858 of 2019 -12- having a stop-gap arrangement, which lasted for years cannot be used to deny in an arbitrary manner, the absorption benefit ton the people who had worked for long years. A direction was issued to regularise the services of such SPOs and they were held entitled to the benefits of service similar in nature to the existing cadre of police service or the State."
10. Referring this judgment, he submits that the sanctioned posts do not fall from heaven. The State has to create the posts by a conscious choice on the basis of some rational assessment of the need. He further submits that the State of Jharkhand came into existence in the year 2000 and the State of Jharkhand has not came out with fair stand in view of the direction of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. Vs. Uma Devi (3) and Ors. reported in (2006) 4 SCC 1 and he relied on para 53 which speaks 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 and R.N. Nanjundappa and B.N. Nagarajanar and referred to in para 15 above., of 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 above referred to and ins the light of this judgment. In that context, the Union of India, the State government and their instrumentalities should take steps to regularize A one - time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned L.P.A. No. 858 of 2019 -13- posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitment are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases whe5re 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- judge, need not be reopened based on this judgment and regularising or making permanent, those not duly appointed as per the constitutional scheme."
11. He further submits that this aspect of the matter has been taken into consideration by the Hon'ble Supreme Court in the case of Narendra Kumar Tiwari and Ors. Vs. States of Jharkhand and Ors. reported in (2018) 8 SCC 238. He has referred to para 7 and 8 of the said judgment which is quoted herein below:-
"7. The purpose and intent of the decision in Uma Devi(3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in (3) is a clear indication that it believes that it was all right ton continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularization and by placing the sword of Damocles over their head. This is precisely what (3) and Ki sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in (3), is to be taken into L.P.A. No. 858 of 2019 -14- consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15.11.2000 and the cut0off date was fixed as 10.4.2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench."
12. He further submits that the case of the petitioners needs to be considered in view of the observation made by the Hon'ble Supreme Court in the case of Narendra Kumar Tiwary (Supra). He further submits that so far as the State of Uttar Pradesh, West Bengal and Haryana are concerned, they have already come out with the policy decision to regularize the persons who are working in those States in the same project. He has relied on the decision in the judgment of the Hon'ble High Court of Himachal Pradesh in Shri Sanjay Gharu and Ors. Vs. State of Himachal Pradesh and Ors., CWP No. 6275 and 1497 of 2012 and submits that the learned Single Judge of that court, after considering various aspect and judgments of the Hon'ble Supreme Court, directed the State Government to regularize the service of the petitioner from the date when they have completed eight years of service with all consequential benefits within period of three months from delivery of the judgment.
13. On the strength of the above facts and judgment and service regulation he submits that the case of the petitioners are fit to be allowed and positive direction can be issued by this court for regularization of the petitioners in JEPC.
L.P.A. No. 858 of 2019-15-
14. It appears from the factual aspect as referred hereinabove based upon the pleading that the petitioners claim to have been appointed in pursuance to the notice published for filling up the posts, as establishment workers on contract basis. The writ petitioners claims to have declared successful and thereafter these writ petitioners have started discharging their duties and after rendering the services considerably for a long period, as per the scheme, the writ petitioners at the time when the State was not bifurcated, after bifurcation of the State, the State of Jharkhand has adopted the project launched by the Central Government in the name and style of Sarva Shiksha Abhiyan and accordingly the writ petitioners have been inducted in the aforesaid scheme and allowed to continue in the services. The writ petitioners have been paid the remuneration as decided to be paid in pursuance to the memorandum of understanding and after working for considerably for a substantial period they have claimed for their regularisation as also disbursement of their regular pay-scale. The same having not been taken into consideration therefore, the writ petitions have been filed by taking the ground that the work in question in which the writ petitioners have been appointed since are perennial in nature and they are rendering services at par with the regular employees, therefore, they need to be regularised in service so as to be given at par treatment and consequence upon the regular pay scale.
15. The learned Single Judge after calling upon the Jharkhand Education Project Council (hereinafter to be referred as the "JEPC") and the State and after taking into consideration the law laid down by the Hon'ble Apex Court L.P.A. No. 858 of 2019 -16- in the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi(3) and Ors. Reported in (2006)4 SCC 1, the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee reported in 2019 2 PLJR (SC) 454 has dismissed the writ petition against which the present appeal.
16. Mr. Pratyush Kumar, learned counsel appearing for the appellant, has submitted that the learned writ Court has not appreciated the fact in the right perspective, since, all the petitioners are working since the year 1997 after following due procedure as laid down under Article 14 and 16 of the Constitution of India, i.e., after inviting applications by wide publication of such notice and all the petitioners have been subjected to the recruitment process and they are continuing in service since long.
17. Even after bifurcation of State of Bihar the writ petitioners have been decided to retain in service by the successor State of Jharkhand and they are continuing is service and in that view of the matter if their service is perennial there is no reason not to induct the petitioners under the regular establishment by regularising their services as also the pay-scale at par with the regular employees working in the regular establishment of the State of Jharkhand. The learned counsel for the appellants has submitted that the aforesaid aspect of the matter has not been considered, since, the learned Single Judge has relied upon the judgement of the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi(3) and Ors. Reported in (2006)4 SCC 1, the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee reported in 2019 2 PLJR (SC) 454 and in the case of Narendra Kumar Tiwari and Ors. Vs. State of Jharkhand and Ors. reported in (2018) 8 SCC 238, wherein the factual aspect related to the aforesaid cases is quite L.P.A. No. 858 of 2019 -17- different to that of the present case and hence on this ground alone the order passed by the learned Single Judge suffers from infirmity.
18. Learned counsel for the appellant has also submitted that although they are being paid minimum of pay scale but is based upon the recommendation of the Fourth Pay Revision Committee and thereafter the consequence of revision either by virtue of 5th Pay Revision or 6th Pay Revision or 7th Pay Revision is not being paid. The learned counsel for the appellant in the aforesaid premises has submitted that the impugned order since, is not sustainable and as such the same needs to be interfered with a direction upon the respondents to regularise the services of the writ petitioners under the regular establishment of the State of Jharkhand and in consequent upon a direction upon the respondents to hold the writ petitioners entitle for the pay scale at par with the regular Government employees who are working under establishment of the State of Jharkhand.
19. Per contra Mr. Krishna Murari, learned counsel appearing for the JEPC has submitted that the issue of regularisation of the para-teachers who are also on contract wherein the similar prayer for regularisation were made which have been dealt with by a co-ordinate Division Bench of this Court in W.P.(S) No. 315 of 2016 alongwith other analogous cases wherein after considering upon all the judgements of the Hon'ble Apex Court regarding the right of the employees who have been appointed on contract basis regarding the regularisation has been discussed and thereafter a conclusive finding has been arrived at that the writ petitioners of the said cases were L.P.A. No. 858 of 2019 -18- having no right to claim regularisation merely because they have been allowed to continue in service fairly for a long period.
20. It has been submitted that herein also the writ petitioners have been appointed on contract basis depending upon the need of the work and they have been decided to be paid the remuneration as per the contract but taking into consideration the nature of their work the State Government has taken a decision to make payment on the minimum of pay scale in their favour and as such the regularisation cannot be claimed as a matter of right so far as the issue of achieving the constitutional goal by making payment of minimum of pay-scale is concerned the proper care has been taken and as such the decision for disbursement of minimum pay scale has already been there, hence, in that view of the matter, the claim which is being made for regularisation in service merely because they have been allowed to continue in service fairly for a long period cannot be said to be justified and proper.
21. It has further been submitted that since the similar issue of regularisation has already been dealt with by a coordinate Division Bench of this Court and the fact of this case is exactly similar to that of the present one, therefore, no interference is required in the order passed by the learned Single Judge.
22. Mr. Devesh Krishna, leanred counsel appearing for the State of Jharkhand has adopted the argument in additional thereto it has been submitted that the decision as has been settled by the Hon'ble Apex Court to avoid the exploitation of the engage who have been appointed on contract basis by not making payment of at least minimum of pay scale has already L.P.A. No. 858 of 2019 -19- been given by the State, since, the writ petitioners have been allowed to take the minimum of pay-scale and hence, it cannot be alleged against the State that the action of the State is in the teeth of Article 14 of the Constitution of India.
23. Learned counsel for the State in the aforesaid premises submitted that since the regularisation cannot claim as a matter of right and the aforesaid issue has already been dealt with by a coordinate Division Bench of this Court in the order passed in W.P.(S) 315 of 2016 alongwith other analogous cases on that score, if the learned Single Judge has denied the aforesaid claim, the same cannot be said to suffer from an error.
24. So far as the arguments advanced on behalf of the appellants that the minimum of pay-scale is being paid on the basis of the recommendation of the 4th P.R.C. is concerned, the same gives a fresh cause of action for the writ petitioners can ventilate his grievance by approaching the appropriate forum.
25. The aforesaid issue is not fit to be raised in this proceeding, since, there are no prayer in the writ petition regarding the disbursement of the minimum of pay scale not based upon 5th or 6th or 7th pay revision committee and hence, the same cannot be said to be a point to be considered in the intra-court appeal in this case.
26. We have heard the learned counsel for the parties, perused the documents available on record as also the findings recorded by the learned Single Judge in the impugned order.
27. The undisputed fact in this case is that the writ petitioners were appointed sometime in the year 1997 by the erstwhile State of Bihar after L.P.A. No. 858 of 2019 -20- issuing the advertisement on contract basis. The writ petitioners have continued and after coming into effect the Bihar Reorganisation Act, 2000 they have been inducted in the services of the State of Jharkhand and the State of Jharkhand has taken a decision to continue to engage them for rendering their services under a project known as Sarva Shiksha Abhiyan. They are working under the establishment wing as also in a field officer. The advertisement explicitly clarifies the nature of appointment of the writ petitioner i.e. on contract basis. The fact of the nature of appointment on contract is also not in dispute, since, the appointment is based upon the terms and conditions of a memorandum of understanding and when there is a memorandum of understanding the appointment will be construed to be and will be an appointment on contract basis.
28. The writ petitioners have been allowed to continue on contract basis bases upon the continuation in service they have raised their grievance for their regularisation. The grievance having not been redressed by the J.E.P.C. and the State, they have come to this Court by filing a series of writ petitions. The learned Single Judge has dismissed those writ petitions by an impugned order in consequence upon the same the present appeal has been filed.
29. The issue of regularisation has elaborately been dealt with in the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi(3) and Ors. (Supra) the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee (Supra) wherein although the issue was not of the contractual engage, rather, the issue was of daily wagers.
L.P.A. No. 858 of 2019-21-
30. The Hon'ble Apex Court while laying down the law has laid down a proposition for putting a restraint upon the backdoor entry, however, by way of one time exercise the engagee who had already been appointed on daily wagers have been directly to be regularise as would appear from paragraph- 53 of the judgement, as rendered by the Hon'ble Apex Court in Uma Devi (Supra).
31. Here the case is not of the daily wagers; rather, the appointees are on contract under a scheme. The question of regularisation under a scheme cannot be said to be proper for the reason that when scheme is not under the regular establishment of the State Government, then where is the question of inducting the employees working under a scheme for their regularisation. The question of regularisation can only be considered if the engagees are working directly under the State Government in that way of the matter, the claim can be made for their regularisation if the law so permits.
32. Here, the appointment is based upon the memorandum depending upon certain terms and conditions wherein there is no reflection in the terms and conditions that their services will be regularised merely on the ground that they have been allowed to continue fairly for a long period. The moment the memorandum of understanding has been signed in between the engagee and the employer, i.e. J.E.P.C., and the law is well settled that if an engagement is being made on contract basis the terms and conditions as enshrined in the agreement of the memorandum of understanding will bind parties.
L.P.A. No. 858 of 2019-22-
33. This Court, therefore, is of the view that merely because the writ petitioners have been allowed to continue in service fairly for a long period that does not confer any legal vested right to claim regularisation by asking a direction from the High Court in exercise of power conferred under Article 226 of the Constitution of India. The law is well settled that the writ Court in exercise of the power under Article 226 of the Constitution of India cannot issue a mandamus for regularisation. The reference in this regard may be made to the judgement rendered in the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi (3) and Ors. (Supra) the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee (Supra).
34. The contention has been raised on behalf of the respondents that the issue regarding the regularisation, although, not for the employees working under the establishment of the field, or in the field, rather, of the para teachers have fell for consideration before this Court in series of litigations i.e. W.P.(S) 315 of 2016 alongwith other analogous cases, wherein, the coordinate Division Bench of this Court has passed an order by taking into consideration the jurisdiction of the High Court in issuing direction upon the respondent counsel or the State for their regularisation.
35. The coordinate Division Bench of this Court have taken into consideration the law laid down by the Hon'ble Apex Court in the case of Secretary, State of Karnatak and Ors. Vs. Uma Devi(3) and Ors. (Supra) the State of Bihar Vs. Bihar Secondary Teachers Struggle Committee (Supra) as also in the case of State of Jammu and Kashmir Vs. District Bar Association, Bandipora, reported in 2017 1 JBCJ (SC) 5 and has dismissed the Letters Patent Appeal.
L.P.A. No. 858 of 2019-23-
36. Here in the given facts of the instant appeal is seeking the same direction of regularisation and the only difference is that the writ petitioners of W.P.(S) No. 315 of 2016 alongwith other analogous cases were para teachers but here the engagees are working in the establishment wing or in the field but under the Sarva Shiksha Abhiyan only.
37. This Court after considering the factual aspect coupled with the decision already taken by the Coordinate Division Bench of this Court, and considering the fact of this case identical to the fact of W.P.(S) No. 315 of 2016, therefore, there is no reason to take different view.
38. Learned counsel for the appellant has also failed to impress upon the Court that how the judgement rendered in the case of W.P.(S)315 of 2016 is not applicable in the facts of this case.
39. This Court, however, after going through the aforesaid judgement is of the view that the practical aspect of instant case is identical in nature with the cases of W.P.(S) 315 of 2016 and analogous cases. This Court after having discussed the factual aspect in entirely and coming to the order passed by the learned Single Judge has found therefrom the issue of the legal vested right of the contractual engagee has been taken consideration which led the learned Single Judge not to pass any positive direction, which according to our considered view cannot be said to suffer from an error. So far as the arguments advanced regarding the anomaly in the minimum of pay scale is concerned, as per the appellants, it is being paid based upon the recommendation of the 4th P.R.C. is concerned and the consequence of revision either of 5th or of 6th or of 7th cannot be paid, the same cannot be L.P.A. No. 858 of 2019 -24- dealt with in this appeal, since, the same was not the issue before the writ Court.
40. Accordingly, on the basis of the discussions made above, this Court is of the view that this appeal needs no interference and the same is accordingly, dismissed.
41. Consequently, the pending Interlocutory Application being I.A. No. 5880 of 2023 also gets disposed of.
(Sujit Narayan Prasad, J.)
D.S./J.Minj (Navneet Kumar, J.)