Jharkhand High Court
Ghanshyam Kumar vs The State Of Jharkhand on 9 July, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5690 of 2023
Ghanshyam Kumar, aged about 36 years, son of Narendra Kumar Singh,
R/o at Saket Nagar, Hinoo, P.O. & P.S- Doranda, District- Ranchi,
Jharkhand ... Petitioner
Versus:
1. The State of Jharkhand
2. The Secretary, Water Resources Department, Government of
Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District
Ranchi.
3. The Secretary, Department of Personnel, Administrative Reforms
and Rajbhasha, Government of Jharkhand, Project Building, Dhurwa,
Jagannathpur, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
4. The Joint Secretary, Water Resources Department, Government of
Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District
Ranchi.
5. The Under Secretary, Water Resources Department, Government of
Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District
Ranchi.
6. The Chief Engineer, Monitoring, Water Resource Department, Nepal
House, Doranda, P.O. and P.S. Doranda, District Ranchi.
7. The Chief Engineer, Water Resource Department, Ranchi, Jal
Bhawan, P.O. & P.S.- Doranda, District Ranchi.
8. The Superintending Engineer, Water Ways Circle, Ranchi, Jal
Bhawan, P.O. & P.S.- Doranda, District Ranchi. ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Deepak Kumar Dubey, Advocate For the Respondents : Mr. Anuj Kumar Trivedi, Advocate
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Lastly heard on 16.04.2024 06/09.07.2024
1. Heard the learned counsel for the parties.
2. This writ petition has been filed for the following reliefs: -
(i) for quashing of letter no 1145 dated 22.12.22, (Annexure-30) issued by the Respondent no.8 by which extension given vide letter no. 899 dated 07.10.2022 to the petitioner from 01.10.2022 to 31.01.2023. has been reduced from 31.01.23 to 22.12.2022.1
It has been alleged that such decision has been taken without any rhyme and reason.
(ii) For quashing of letter no. 4507 dated 9.9.2021 (Annexure-24) and Letter no. 5393 date 18.10.2022 (Annexure-
28) whereby and whereunder decision has been taken by the respondent authorities to appoint Computer Operator-cum Data Entry through Out- Source Agency in place of petitioner.
These letters clearly show that the work is there and service is required, then how it has been decided by the respondents to appoint through Out-Source Agency without withdrawal/amendment of the letter no. 1357 dated 28.11.2008.
(iii) for quashing of letter no 1146 dated 22.12.22 and letter no 1147 dated 22.12.22 (Annexure-30/1 & 30/2) issued by the Respondent no.8 whereby and whereunder the service of the petitioner has been terminated with immediate effect on the ground that as per letter no. 4507 dated 09.09.2021 it has been decided by the Water Resources Department that the Computer Operator who are working on contractual basis as per letter no. 1357 dated 28.11.2008, their services now will be taken up through Out Sourcing agency i.e. Empaneled Agency of JAPIT.
The challenge is primarily on the ground that such decision is against the well settled law that an ad-hoc or temporary employee cannot be replaced by another ad-hoc or temporary employee.
(iv) For a Mandamus upon the respondents to allow the petitioner to continue on the respective post as per terms and conditions of his appointment/ engagement renewed from time to time as lastly renewed till 31.01.2023.
The period of contract has not been renewed due to memo no. 4507 dated 09.09.2021 issued by Respondent no.3 by which direction has been given to that the services of the Computer Operators-cum-Data Entry be taken through the empanelled agency of the JAP IT.
(v) For a mandamus upon the respondents not to appoint any other person through out-sourcing agency as the law is settled that an ad-hoc or temporary employee cannot be replaced by another ad-hoc or temporary employee.
From bare perusal of letter no. 4507 dated 09.09.2021 and Letter no. 5393 18.10.2022 it is apparent that the respondents are going to take decision to appoint through out-sourcing agency and the petitioner is being forced if want to continue in the service, to come through out- sourcing agency. The petitioner was directly appointed by the Department and only for the reason that in future the petitioner may not claim regularization, the petitioner is being forced to work through out-sourcing agency. This is against the well settled law decided by the Hon'ble Apex Court in following judgments wherein it has been held that an ad-hoc employee cannot be replaced by another ad-hoc employee and this issue is no more res-integra so far as it relates to the Computer Operator-cum Data Entry in the State of Jharkhand decided in number of the cases -
2a. State of Haryana & Ors. Vs. Piara Singh & Ors.
reported in (1992) 4 SCC 118, b. Rattan Lal vs. State of Haryana reported in (1985) 4 SCC 43, c. Hargurpratap Singh vs. State of Punjab reported in (2007) 13 SCC 292 and d. Manish Gupta and Another Vs. President, Jan Bhagidari Samiti and Others reported in 2022 SCC Online SC 485.
(vi) For a mandamus upon the respondents to give the arrear of salary of the petitioner for the period i.e. from 02.04.2018 to 28.04.2018 which has not been paid to him though work has been taken from the petitioner by the respondent no. 8 which will be evident from biometric attendance of the petitioner.
(vii) For a Mandamus upon the respondents to grant extension of service period to the petitioner in his service and allow the petitioner to work till the service of the petitioner is being regularized in the light of Judgment passed by this Hon'ble Court in Babita Kumari & Ors Vs. The State of Jharkhand & Ors passed in W.P.(S) No. 4682 of 2021 also affirmed by the Division Bench of this Hon'ble Court in L.P.A. No. 438 of 2022.
(viii) For a Mandamus upon the respondents to regularize the service of the petitioner who is working under Respondent No.8 on the post of Computer Operator-cum-Data Entry and completed more than 13 years but the respondents have not considered the case of the petitioner for regularization of his service.
(ix) For a Mandamus upon the respondents to regularize the service of the petitioner in the light of Judgment passed by Hon'ble Apex Court in Narendra Kumar Tiwari & Ors Vs. State of Jharkhand & Ors. passed in Civil Appeal Nos. 7423-7429 of 2018 Arising out of S.L.P. (Civil) Nos. 19832-19838 of 2017 (reported in (2018) 8 SCC 238, the person who has completed more than 10 years of service, despite that the respondents have not considered the case of the petitioner for regularization.
(x) For a Mandamus upon the respondents to consider the case of the petitioner in the light of Judgments passed by this Hon'ble Court in -
a. Chandreshwar Prasad Sharma Vs. The State of Jharkhand & Ors and other analogous cases passed in W.P.(S) No. 3762 of 2015 along with other analogous cases affirmed by the Division Bench of this Hon'ble Court in L.P.A. No. 560 of 2016 and L.P.A. No. 256 of 2016;
b. Pankaj Kumar & Anr Vs. The State of Jharkhand & Ors passed in W.P.(S) No. 6524 of 2017 along with other analogous case affirmed by the Division Bench of this Hon'ble Court in L.P.A. No. 402 of 2018; and L.P.A. No. 407 of 2018, and c. Ritesh Ranjan & Another Vs. The State of Jharkhand & Ors passed in W.P.(S) No. 861 of 2011, Suresh Walter Vs. The State of Jharkhand passed in W.P.(S) No.1513 of 2016 and other analogous cases 3 d. Narendra Kumar Tiwari & Ors Vs. State of Jharkhand through its Chief Secretary passed in W.P.(S) No. 6347 of 2018 along with other analogous cases.
3. The petitioner has been appointed on contractual basis in terms of letter No. 2084 dated 31.12.2008 issued by the respondent No. 8 as per the direction of respondent No. 6 and such appointment has been made in view of letter No. 1357 dated 28.11.2008 as well as letter No. 3287 dated 05.12.2008. He initially appointed on the post of Computer Operator on contract basis from 01.01.2009 to 31.03.2009 and the period of contract has been extended from time to time. The cause of action to file this writ petition arose when his last extended period from 01.10.2022 to 31.01.2023 has been curtailed and reduced till 22.12.2022 and the petitioner has been directed to work through the outsourcing agency instead of being a contractual employee under the respondents. The petitioner is also seeking regularization in terms of the scheme for regularization of the State Government dated 13.02.2015 read with amendment dated 20.06.2019 further read with the judgment passed by the Hon'ble Supreme Court in the case of Nihal Singh and Others vs. State of Punjab and Others (2013) 14 SCC 65.
The petitioner is also seeking a direction to pay remuneration for the period from 02.04.2018 to 28.04.2018 on the basis of biomatrix attendance said to have been marked by the petitioner. It is also the case of the petitioner that the appointment of the petitioner on contractual basis cannot be replaced by another ad-hoc arrangement of engagement through outsourcing and the petitioner cannot be forced to work through outsourcing agency.
The petitioner is also seeking a mandamus to regularize his services on the post of Computer Operator-cum-Data Entry Operator in the light of the judgment passed by this Court in the case of Babita Kumari (supra) passed in W.P.(S) No. 4682 of 2021 and upheld in L.P.A. No. 438 of 2022.
Argument of the petitioner.
4. After the creation of State of Jharkhand, Finance Department, Govt. of Jharkhand had issued letter no. 4569 dated 05.07.2002 enabling appointment of the employees on the basis of contract. A letter no. 1357 4 dated 28.11.2008 was issued by the Respondent No. 6 by which all the Chief Engineer and the Superintending Engineer of the Water Resources Department were directed to take service of Computer Operator-cum-Data Entry Operator on contractual basis in their respective offices which was followed by letter dated 05.12.2008 issued by the respondent No. 7 to appoint Computer Operator on contract basis. Vide letter No. 10 dated 03.01.2009 the required minimum qualification for contractual engagement was reduced.
5. On 17.12.2008, the petitioner submitted application for appointment on contractual basis in the office of respondent no.8 and thereafter the appointment letter dated 31.12.2008 was issued by the respondent No. 8 on the post of Computer Operator on contract basis initially from 01.01.2009 to 31.03.2009 which was extended from time to time every year by the respondent No.8 upon representation, lastly vide memo no. 899 dated 07.10.2022 from 01.10.2022 to 31.01.2023 and the petitioner was discharging his duty. The remuneration of the petitioner was also enhanced through different letters and lastly, he was working at Rs. 26,300/- per month.
6. Vide letter No. 783 dated 27.05.2011, letter No. 643 dated 27.04.2012, letter No. 660 dated 12.06.2013 and Cabinet Secretariat and Co-ordination Department, Government of Jharkhand Resolution No.1173 dated 07.09.2013, a direction was issued to create posts for Computer Operator after removal of anomaly of pay and to maintain equality in the service condition. Thereafter, letter No. 7074 dated 03.08.2013 [Annexure-9] was issued by the Deputy Secretary, Personnel & Administrative Reforms and Rajbhasha Department to all the Additional Secretary, Principal Secretary, Secretary of the departments directing them to send the details of the employees working as contractual employee, through outsourcing and other modes. Vide letter no. 970 dated 11.08.2014 [Annexure-10], it has been informed to the Secretary, Water Resource Department, Ranchi that the concerned department has power to pay the monthly salary to the contractual employee and also has the power to grant extension of service period to the contractual employees.
57. Thereafter, the State of Jharkhand came up with Notification vide No. 1348 dated 13.02.2015 for regularization but some of the aggrieved persons preferred writ petition challenging the cut-off date and the matter travelled up to the Hon'ble Supreme Court and vide judgment dated 01.08.2018 passed in Civil Appeal Nos. 7423-7429 of 2018 arising out of S.L.P. (Civil) Nos. 19832- 19838 of 2017 (Narendra Kumar Tiwari & Ors. Vs. State of Jharkhand & Ors.), the judgement of the High Court upholding the scheme dated 13.02.2015 was set-aside and consequently the scheme was amended on 20.06.2019 and the cut- off date has been fixed from the date of its amendment i.e. 20.06.2019.
8. It is the case of the petitioner that the case of the petitioner falls under the category for regularization, hence is entitled for regularization in terms of the judgment passed by the Hon'ble Apex Court in the case of Nihal Singh case (supra) to submit that it is for the State to create the posts, and numerous official letters of the respondents have been referred to submit that there is requirement of Computer Operator in the office.
9. Vide Notification no. 4011 dated 18.08.2020 [Annexure- 20], a Committee was constituted to review the service condition and for regularization of the contractual employee working in all the department in the State and vide letter no.5353 dated 21.10.2020 [Annexure-20/1] the Personnel and Administrative Department sought details of all the contractual employees working in the different department including Water Resources Department, Ranchi for further action with regard to regularization of the contractual employees. Vide letter dated 6451 dated 17.12.2020 [Annexure-21], a list of the contractual employees/ Computer Operator-cum-Data Entry Operator including entire service details of the petitioner along with others was sent to the Principal Secretary, Personnel, Administrative & Rajbhasha, Department, Jharkhand, Ranchi for the purpose of regularization of their services.
10. A proposal was made by the water resources department for sanctioning of 182 non-functioning posts of clerks available in the different regional offices of Water Resource Department, Govt. of Jharkhand. The said proposal of the department was placed before the 6 "PRASHASI PADWORG SAMITI" (hereinafter referred to as the "Committee") and the said Committee in its meeting dated 27.06.2019 recommended to redesignate the said 182 non-functioning posts of clerks as 'Computer Operators' and recommended to avail services of the 'Computer Operators' through 'Outsourcing'. The Committee also mentioned in its recommendations that payment made to 'Computer Operators' appointed through any other source should be treated as 'financial irregularity'. It has been further decided that appointments through 'outsourcing' will not be treated as appointment on sanctioned post, but the aforesaid 182 number would be the maximum number of such appointments through 'outsourcing'.
11. The decision of the said committee taken in its meeting dated 27.06.2019 relating to appointment of the 'Computer Operators' from 'outsourcing agency' was placed before the Finance Minister of the Government of Jharkhand for approval and thereafter the said decision of the Committee was placed before the Cabinet of the State Government but the Cabinet sent back the proposal with remarks that the Computer Operators who are already working on contractual basis since long in the secretariate office as well as field office their services cannot be taken from outsourcing.
12. After receiving of the said remarks from the Cabinet, which related to all Computer Operators who were working in the Secretariate office / field office, the Department sent proposal for appointment of only 14 Computer Operators who were working in the Secretariate office for their appointment to the said Committee and intentionally the name of the Computer Operators who are working in the field office have been left out. Such proposal was put for approval before the concerned departmental Minister and after verification he sent back the proposal to the Department and thereafter the proposal was never produced before the Cabinet in terms of the Circular No. 1638 dated 16.06.2006, and has never been approved by the Cabinet. Hence, the proposal is kept in abeyance by the department and for that reason the service period of the contract has been extended time to time by the department.
13. Vide its letter No. 1517 dated 26.08.2021 [Annexure-23] and vide letter No. 1578 dated 08.09.2021[Annexure-23/1], 'JAP IT' circulated 7 to all the Department Head/Deputy Commissioners of the State that a fresh tender for providing various category of Manpower to various department/organization/agencies/offices of the State Government of Jharkhand was published and finalized whereby 12/14 agencies working in different field have been empanelled and agreement in this regard have been signed between 'JAP IT' and those outsourcing agencies .
14. In view of the aforesaid letters, the Joint Secretary, Department of Water Resources, Govt. of Jharkhand, vide letter No. 4507 dated 09.09.2021 [Annexure-24] directed all concerned that in the light of the decision taken by the State Government, services of the Computer Operators be taken through the empanelled Agency of the 'JAP IT'. Time and again letters have been sent to all the Chief Engineers of Water Resource Department to appoint Computer Operator from outsourcing agency. It is submitted that such decision was taken without withdrawal/amendment of the earlier letter No. 1357 dated 28.11.2008 and letter No. 10 dated 03.01.2009 and such action is against the well- settled law.
15. Letter no. 4884 dated 15.09.2022 [Annexure-26] was issued by the Joint Secretary of Water Resources Department to all the Chief Engineers Water Resource Department asking them to send the details of Computer Operators working in their offices and thereafter the respondent no.8 sent the details of the petitioner vide letter no. 901 dated 10.10.2022 [Annexure-26/1] with positive noting and work appreciation to the Chief Engineer Water Resources Department, Ranchi and also stated that petitioner was working since 01.01.2009 in his office and was well experienced.
16. In the meantime, the respondent No. 8 extended the contractual services of the petitioner Vide memo No. 899 dated 07.10.2022 from 01.10.2022 to 31.01.2023 [Annexure-27].
17. A letter contained in Memo No. 5393 dated 18.10.2022 [Annexure-28] was issued by the Under Secretary, Water Resources Department, Ranchi mentioning that a decision has been taken to induct Computer Operator/Data Entry Operator through outsourcing agency/empanelled agency and the respondents were directed to 8 provide list for such requirement so that appropriate steps could be taken. The requirement of Computer Operator/Data Entry Operator was to be sent by 14.11.2022.
18. Vide letter dated 01.12.2022 [annexure-29] issued by the Joint Secretary, Water Resources Department, Government of Jharkhand to the respondent No. 8, an explanation was called for from the respondent No.8 as to under what circumstances the service of the petitioner was extended in spite of letter as contained in Memo No. 2060 dated 31.07.2019 issued by the Planning-cum-Finance Department which was followed by Department Letter No. 4507 dated 09.09.2021 [Annexure- 24] directing that new persons were to be recruited as per requirement through empanelled agency of 'JAP IT'. He was directed to explain that under what circumstances he did not comply with the instruction issued vide departmental Letter No. 4507 dated 09.09.2021. Immediately thereafter, the respondent No.8 issued letter No. 1145 dated 22.12.2022 [Annexure-30] by which the extension given to the petitioner for the period from 01.10.2022 to 31.01.2023 vide letter No. 899 dated 07.10.2022 was curtailed and reduced till 22.12.2022. Thereafter, another letter was issued by the respondent No. 8 bearing No. 1146 dated 22.12.2022 [Annexure-30/1] whereby the services of the petitioner was terminated with effect from 22.12.2022 and vide letter No. 1147 dated 22.12.2022 [Annexure-30/2], the respondent No. 8 informed the Joint Secretary, Water Resources Department, Ranchi. The petitioner being aggrieved by the action of the respondents filed representations dated 23.12.2022, 11.03.2023 and 14.06.2023 [Annexure-31 series] raising a grievance regarding curtailment of his period of service and praying for reinstatement. Without considering the grievance of the petitioner, a letter dated 218 dated 06.03.2023 [Annexure-32] was issued by the respondent No. 8 to the Chief Engineer, Water Resources Department stating that no 'Computer Operator' was working in the Circle and a request was made to provide one Computer Operator through outsourcing. Ultimately, when the grievance of the petitioner was not redressed, the petitioner filed the present writ petition challenging the action of the respondents in terminating his services prior to completion of the period of extension 9 and challenging the decision of the respondents to induct Computer Operator/Data Entry Operator through outsourcing agency and also claiming regularization.
19. The petitioner heavily relied upon the judgment passed by this Court in W.P. (S) No. 4682 of 2021 decided on 27.07.2022 (Babita Kumari & Others vs. The Station of Jharkhand & Others) and upheld by the Hon'ble Division Bench in L.P.A. No. 438 of 2022 vide judgment dated 03.05.2023.
20. It has also been stated by the petitioner in paragraph 44 of the writ petition that on the one hand the Under Secretary, Water Resources Department, Ranchi has sent several letters/directions to take services of Computer Operators from outsourcing agency and on the other hand, he has been giving extension of one Ashish Kumar working in the office of Water Resources Department, Ranchi and his contract period is from 01.04.2023 to 31.03.2024 which shows arbitrary action of the respondents. He has also referred to Memo No. 2374 dated 07.08.2023 issued by the Finance Department, Government of Jharkhand, Ranchi by which 24 computer operators-cum-Data Entry Operators have been regularized who are working in the treasury/sub-treasury on contractual basis and this was all in terms of the judgment passed by this Court in the case of Babita Kumari & others vs. The State of Jharkhand & Others belonging to the same Water Resources Department, but a different stand has been taken with respect to the petitioner.
21. It is the specific case of the petitioner that the petitioner has been continuously working without any break right from the date of his appointment and completed 14 years of services and on 22.12.2022, he has been forcefully terminated from service even prior to completion of the extended period of contract for no reason or any fault on the part of the petitioner and the petitioner is being forced to work through outsourcing agency. It is alleged that the action of the respondents is not only arbitrary but is also discriminatory in nature.
22. It is submitted by the petitioner that letter no. 5393 dated 18.10.2022 issued by the Under Secretary of the Water Resources Department directing to appoint Computer Operator in their concerned offices through outsourcing agency is also against the law settled by the 10 Hon'ble Supreme Court that ad hoc employee cannot be replaced by ad hoc employee. It has been submitted that such action has been taken without withdrawing/ amending/recalling letter no. 1357 dated 28.11.2008 and letter no. 10 dated 03.01.2009. It is submitted that similar issue has already been decided by the Hon'ble Apex Court in its celebrated judgment in the case of State of State of Haryana & Ors Vs. Piara Singh &Ors. reported in (1992) 4 SCC 118, Rattan Lal vs. State of Haryana reported in (1985) 4 SCC 43, Hargurpratap Sing vs. State of Punjab reported in (2007) 13 SCC 292 and in the case of Manish Gupta and Another Vs. President, Jan Bhagidari Samiti and Others reported in 2022 SCC Online SC 485 that an ad-hoc employee cannot be replaced by another ad-hoc employee and this issue is no more res- integra so far as it relates to the Computer Operator-cum-Data Entry in the State of Jharkhand decided in number of the cases. Reliance has also been placed on the judgement passed in the case of Nihal Singh and Others vs. State of Punjab and Others (2013) 14 SCC 65 para 20, 35, 38 and 39 to submit that it has been held that there is no justification for the State to take a defence after permitting the utilization of the services for decades and then to say that there are no sanctioned posts to absorb such persons. Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.
23. It is also submitted that issuance of show cause/seeking explanation from the respondent No.8 for having extended the period of contract of the petitioner on the ground that the services of Computer Operator have to be taken through outsourcing agency is arbitrary and illegal which has the consequence of mid-way termination of contract of the petitioner and then forcing the petitioner to join and do the same work through outsourcing agency.
24. It is submitted by the petitioner that several orders passed by the several/different Departments of the State Government of Jharkhand that after passing of the Order/judgment by this Hon'ble Court, the several departments have regularized the services of their employee as well as several departments of the State Government of Jharkhand has continued period of services of their employees except the water 11 resources department , Government of Jharkhand intentionally and now saying the matter is of policy decision. It is further stated that Department of Forest, Environment and Climate Change, Government of Jharkhand vide memo no. 3886 dated 15.09.2017, Rural Development Department, Government of Jharkhand vide memo no. 4625 dated 01.09.2017, Law Department, Government of Jharkhand vide notification No. 1314 dated 28.06.2022, Cabinet Secretariate & Vigilance Department, Government of Jharkhand vide memo no. 790 dated 06.07.2022, Rural Work Department, Government of Jharkhand vide memo no. 1816 dated 01.09.2022, Primary. Secondary and Higher Education, Human Resource Department, Government of Jharkhand, Commercial Taxes Department, Government of Jharkhand and other department of the State of Jharkhand have regularized the services of their employees and those persons whose services have not been regularized have continued in their respective post in their department except the water resources department, Govt. of Jharkhand [Annexure- 34 Series].
25. It is submitted by the petitioner that vide memo no. 2616 dated 08.05.2023 issued by the Under Secretary, Water Resources Department extension of period of contract has been granted of one Ashish Kumar working in the office of Water Resources Department, Ranchi for the period from 01.04.2023 to 31.03.2024 which itself shows the arbitrariness. It will be evident from memo no. 2374 dated 07.08.2023 issued by the Finance Department, Government of Jharkhand that service of twenty Computer Operators-cum-Data Entry Operators have been regularized who were working in the Treasury /Sub treasury on contractual basis and only Water Resources Department, Govt. of Jharkhand has not followed the direction of the Hon'ble High Court passed in the case of Babita Kumari & Ors vs. the State of Jharkhand & Ors., petitioners of Babita Kumari & Ors. case also belongs to Water Resources Department as the present petitioner [Annexure-35 & 35/1].
26. It is submitted that similar issue has been decided by the Hon'ble Court in following cases:
12(i) Chandreshwar Prasad Sharma Vs. The State of Jharkhand & Ors. and other analogous cases passed in W.P.(S) No. 3762 of 2015 along with other analogous cases affirmed the order passed by Hon'ble Single Judge by the Division Bench of this Hon'ble Court in L.P.A. No. 560 of 2016 and L.P.A. No. 256 of 2016;
(ii) Pankaj Kumar & Anr. Vs. The State of Jharkhand & Ors. passed in W.P.(S) No. 6524 of 2017 along with other analogous case affirmed the order passed by Hon'ble Single Judge by the Division Bench of this Hon'ble Court in L.P.A. No. 402 of 2018, and L.P.A. No. 407 of 2018;
(iii) Ritesh Ranjan & Another Vs. The State of Jharkhand & Ors. passed in W.P.(S) No. 861 of 2011;
(iv) Suresh Walter Vs. The State of Jharkhand passed in W.P.(S) No.1513 of 2016 and other analogous cases;
(v) Babita Kumari & Ors. Vs. The State of Jharkhand & Ors. W.P.(S) No. 4682 of 2021.Para-17,18,19. Against the order passed by Hon'ble Single Judge, State has preferred appeal before the Division Bench of this Hon'ble Court in L.P.A.No.438 of 2022 (The State of Jharkhand & Ors. vs. Babita Kumari & Ors.) and the same has been dismissed. Para-5,6,7,8,9,10;
(vi) Narendra Kumar Tiwari Vs. State of Jharkhand, reported in (2018) 8 SCC 238. Para-10,11,12;
(vii) Sheo Narain Nagar Vs. State of Uttar Pradesh reported in (2018) 13 SC 432. In this case, factum has clearly been decided. The objective of the Judgment rendered by the Hon'ble Supreme Court in the case of Uma Devi (Supra) has not been followed rather used to defeat the very purpose of regularisation. The contention of the petitioners has not been met with by the respondents and only a formal denial has been made which clearly envisaged that just to frustrate their claim, plea of Article 14 of the Constitution of India has been taken. Regarding sanction of posts and advertisement for appointment;
13(viii) Manish Gupta and another Vs. President, Jan Bhagidari Samiti and others reported in 2022 SCC OnLine SC 485, Para-12... "It is settled principle of law that an ad hoc employee cannot be replaced by another ad-hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. Reliance in this respect can be placed on the Judgment of this Court in the case of Rattan Lal V. State of Haryana [(1985) 4 SCC 43] and on the order of this Court in the case of Hargurpratap Singh v. State of Punjab [(2007) 13 SCC 292]." From aforesaid observations of the Hon'ble Apex Court as well as of this Court in different cases, it can comfortably be said that if petitioners are continuing to work for more than ten years without any objection and the respondents State is in need of their work, they cannot be replaced by another set of employees solely on the ground that they were not appointed against sanctioned posts without any advertisement;
(ix) State of Haryana & Ors. Vs. Piara Singh & Ors.
reported in (1992) 4 SCC 118;
(x) Rattan Lal vs. State of Haryana reported in (1985) 4 SCC 43; and
(xi) Hargur pratap Sing vs. State of Punjab reported in (2007) 13 SCC 292.
27. It is submitted by the petitioner that the action of the respondent authorities is in violation of Articles 14, 16 and 311 of the Constitution of India.
28. Another grievance of the petitioner is that the biomatrix attendance of the petitioner from 02.04.2018 to 28.04.2018 shows that the petitioner has been continuously working and discharging his duty from 01.04.2017 to 31.03.2018 but his extension has been renewed vide letter no. 679 dated 17.05.2018 from 24.04.2018 to 25.03.2019, although the petitioner was continuously discharging his duty in between but has not been given salary till date.
14Arguments of the Respondent-State.
29. The learned counsel for the respondents has referred to the counter-affidavit and has opposed the prayer of the petitioner. It is the specific case of the respondents that the petitioner has neither rendered his services against sanctioned post nor rendered his services on the basis of regular work and hence he cannot be regularized. A reference has been made to Memo No. 1357 dated 28.11.2008 issued by the office of Chief Engineer, Water Resources Department, Ranchi with regards to taking of service of one Data Entry Operator on contract basis in each office of Chief Engineer/Superintending Engineer on the basis of prescribed conditions and declarations of the Welfare Department, Government of Jharkhand and the petitioner was appointed on contractual basis with effect from 01.01.2009 on the basis of recommendation made by the Superintending Engineer for a short period with specific conditions, but in the wake of work exigencies, his service was extended in terms of administrative approval/orders from time to time and the petitioner was being paid monthly remuneration.
30. Further stand has been taken by the respondents in the counter- affidavit that vide order dated 03.11.2020 in W.P. (S) No. 1665 of 2020 (Babita Kumari & Others vs. the State of Jharkhand & Others), this Court had directed the department to consider the claim for regularization in terms of Regularization Rules of 2015, but the said claim has been rejected vide memo No. 5367 dated 26.10.2021.
31. It is submitted by the respondents that in spite of such specific instructions vide notification contained in memo no. 4507 dated 09.09.2021 as well as the letter no. 5393 dated 18.10.2022 issued by the Chief Engineer, Water Resource Department, to take the services of Computer Operator /Data Entry Operators through outsourcing which was within the domain of the State policy, the petitioner managed to get his contract extended and therefore termination of his contract is justified.
32. It is the case of the respondents that the notification contained in Memo No. 4507 dated 09.09.2021 as well as Letter No. 5393 dated 18.10.2022 is within the domain of State policy and since there is no sanctioned post of Data Entry Operator and the previous appointment 15 was on purely temporary basis subject to extension, the petitioner is bound by the terms of appointment and it is the prerogative of the State to extend or not to extend the contract. It has also been asserted that if the petitioner approaches the empanelled agency, he will be considered for engagement. Since the policy decision was taken vide Memo No. 4507 dated 09.09.2021 issued by the Joint Secretary, Department of Water Resources to all concerned that in the light of the decision taken by the State Government the services of Computer Operator be taken through the empanelled agency of JAP IT, therefore there was no occasion to give extension to the petitioner for the tenure beyond September 2021.
33. It is their specific case that no such post of Computer Operators was sanctioned in the department and engagement on non-sanctioned post at the department could lead to financial irregularities. Therefore, a proposal was made by the Department for sanctioning of 182 posts of Computer Operator by surrendering 182 non-functional posts of Clerk available in different regional offices of Water Resources Department, Government of Jharkhand. The said proposal was placed before the Administrative Personnel Committee who in its meeting dated 27.06.2019 considered the proposal of department and recommended to avail services of the Computer Operators through 'outsourcing'. The Committee also mentioned that the payment made to Computer Operators appointed through any outsourcing shall be treated as 'financial irregularity'.
Findings of this Court
34. This Court finds that in the case of Babita Kumari & Others vs. The State of Jharkhand & Others in W.P. (S) No. 4682 of 2021 decided on 27.07.2022 relating to the same respondent department i.e. Water Resources Department, the petitioners had approached the Court seeking extension of their services and not to terminate/disturb their services till regular appointments are made on the ground that they were working since more than 10 years without any complaint and their services were extended from time to time. The last renewal in their case was till 30.09.2021. They had also challenged the order dated 26.10.2021 whereby their claim for regularization was rejected and a 16 prayer was also made to regularize their services in the light of numerous judgments including the judgment passed in the case of Narendra Kumar Tiwari & Others vs. The State of Jharkhand & Others (supra). The State in its counter-affidavit in the said case referred to the decision of the aforesaid Committee dated 27.06.2019 where the proposal of the department was considered and recommendation was made to avail services of Computer Operators through outsourcing. A submission was also made that the decision of the Committee dated 27.06.2019 was not approved by the Council of Ministers in the light of the Circular No. 1638 dated 16.06.2006. In the said case, a stand was also taken that if the petitioners approached through outsourcing agency and their names are recommended, they will be allowed to work on the concerned post. This Court in paragraph 17(ix) of the aforesaid judgment held that the rejection of the case of the petitioners for regularization will not come in the way of taking a decision for extension of their contract period till a decision is taken for regular appointment. The order dated 26.10.2021 refusing to regularize the petitioners of the said case was set-aside by holding that the same was passed without taking into consideration the observations of the Hon'ble Apex Court in the case of Narendra Kumar Tiwari vs. State of Jharkhand reported in (2018) 8 SCC 238. The Court also observed that there were several cases directing the respondent-State to stop contractual appointment and to go for regular appointment but no heed was paid to such directions. The Court observed that admittedly the policy decision of the State is seldom interfered by the Court sitting under Article 226 of the Constitution of India but whenever it appears that the policy decision of the State is not in consonance with the rules illegal and arbitrary, the Court is compelled to interfere. The Court also observed that on the date of filing of the writ petition i.e. 30.09.2021, the writ petitioners were on roll and they were subsequently discontinued.
35. It was, interalia, held in paragraph 17(v) that there was no justification to replace the petitioners who were engaged till filing of the writ petition by another set of personnel through outsourcing agency. Paragraph 17 of the said judgment is quoted as under: -
17"17. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners needs consideration for the following facts and reasons: -
i. The petitioners have been performing the duties over a period of time since their engagement in their respective department without any complaint and to the satisfaction of the respondents till filling of the instant writ petition.
ii. The initial engagement of the petitioners are also not in question on any ground whatsoever illegality or irregularity.
iii. From the affidavit and statements made by the respondents that respondents are ready to engage these petitioners on the condition that they should come through other outsourcing agency, leads to the clear inference that the job in question has not come to an end and the respondents want to continue with such posts.
iv. The stands of the respondents that there is no post of Computer Operator /Computer Data Entry Operator does not make sense on the ground that if there is no such posts how the persons/employees coming through outsourcing are being allowed to work on that post and if the petitioners also approach that outsourcing agency and names are recommended, they will be allowed to work on the said post, the said policy of the State appears to be totally irrational.
v. There seems to be no justification to replace the petitioners, who are in engagement till filing of the writ petition by another set of personnel through different outsourcing agency.
vi. The respondents have tried their level best to impress this Court that the case of the petitioners for regularization has already been rejected and they are out of job as their cases for extension of contract has been rejected, is not acceptable by this Court since from the rejoinder to reply to the interlocutory application dated 21.07.2021, filed by the petitioners, it appears that the services of the petitioners were extended till 30.09.2021 during the pendency of the writ petition and thereafter, no decision has been taken on the representations of the petitioners and only because their cases for regularization has been rejected, the respondents are treating them to be out of service and not allowing them to continue to work on the plea that they should approach the other outsourcing agency and if recommendation comes from them, their candidature shall be accepted. This Court fails to understands that if there is no such posts and there is no requirement of Computer Data Entry Operator, how persons coming through other outsourcing agency are being allowed to work on the said post, which is not tenable in the eyes of law and against the settled principles what has been observed by the Hon'ble Apex Court in case of 18 Hargurpratap Singh Vs. State of Punjab & Ors., reported in (2007) 13 SCC 292 which reads as under:-
"3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay-scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appoints are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly."
vii. Further, similar view was also taken by the Hon'ble Delhi High Court in case of Narinder Singh Ahuja & Ors. Vs. the Secretary, Ministry of Health & Family Welfare & Ors., reported in (2014) 146 DRJ 167, wherein the Hon'ble Court has held as under:-
"15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to outsource"
engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners employment is not their replacement with regular appointees, but instead,with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended."
19viii. Similar issue fell for consideration before this Court also in case of Pankaj Kumar & Anr. Vs. The State of Jharkhand in W.P.(S) No.6524/2017 and this Court vide order dated 18.01.2018 reiterated the same as has been held by the Hon'ble Apex Court.
ix. The rejection of the case of the petitioners for regularization will not come in the way of taking a decision in the case of the petitioners for extension of their contract period till a decision is being taken for regular appointment and as such, impugned order dated 26.10.2021 (Annexure-18) is not tenable in the eyes of law and fit to be quashed and set aside as the same has been issued without taking into consideration the observations made by the Hon'ble Apex Court in case of Narendra Kumar Tiwari Vs. State of Jharkhand, reported in (2018) 8 SCC 238, wherein it has been held thus:-
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , is to be taken into 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 cut-off 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. 9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise -- the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. 10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc. x. Earlier in several cases this Court issued a clear direction upon the respondent-State to stop contractual appointments in the State of Jharkhand and State was directed to go for regular appointment, but it appears that no heed has been paid to the directions of this Court. Admittedly, the policy decision of the State is seldom interfered by the Court, sitting under Article 226 of the Constitution of India, but wherever it appears that policy decision of the State is not inconsonance with the Rules, illegal and arbitrary, the Court is compelled to interfere.
20xi. The reliance of the learned Senior Counsel, Advocate General on the judgments aforesaid, is of no help to him as the same are not applicable in the instant case and are distinguishable on the ground that in those cases, petitioners were out of service, whereas, in the present case, they were on roll till filing of the present writ petition i.e., on 30.09.2021."
36. The said judgment was subject-matter of consideration in L.P.A. No. 438 of 2022 and the appeal of the State was rejected primarily on the ground that it is well-settled principle that an ad-hoc or temporary employee should not be replaced by another ad-hoc or temporary employee and he must be replaced by a regular selected employee.
37. However, the said judgement did not deal with the power to the State to take a policy decision not to recruit employees and induct them through outsourcing.
38. The power of the State to take a policy decision not to make regular appointments and to take work through outsourcing has been elaborately discussed in the judgement passed by the Hon'ble Supreme Court reported in (2021) 15 SCC 600 (State of Uttar Pradesh & Others vs. Principal, Abhay Nandan Inter College & others). In the said judgement, a decision was made by the Government way back in the year 2010 to do away with the recruitment to the post of Class-IV employees by replacing the process with utilization of the service through "outsourcing". This was made by taking into note of recommendations of the Pay Commission with the primary concern being financial difficulty followed by efficiency. The decision was challenged in the High Court in writ petition which was allowed interalia holding that there was violation of Article 14 of the Constitution of India by observing that outsourcing as a concept of making available staff to perform Class-IV jobs was unconstitutional, arbitrary and illegal. Upon a challenge to the judgement passed by the High Court, the Hon'ble Supreme Court held in paragraph 42 of the aforesaid judgment that the Division Bench of the concerned High Court entered into an arena which was not required to be done and much effort was made to interpret the word "outsourcing". However, such an exercise ought to have been avoided as it stood outside the scope of judicial review. The Hon'ble Supreme Court was of the view that 21 outsourcing as a matter of policy was being introduced throughout the State and it was one thing to say that it has to be given effect to with caution as recommended by 7th Central Pay Commission and another to strike it down as unconstitutional. It has been held that outsourcing per se is not prohibited in law although recruitment by way of outsourcing may have its own deficiencies and pit falls but a decision to take outsourcing cannot be declared as ultra vires of the constitution on the basis of mere presumption and assumption. The Hon'ble Supreme Court was not aware of the nature of the scheme and the safeguards attached to it.
39. Thus, it is clear that the State has a right to take a decision to induct persons through outsourcing but the same has to be a policy decision and not a mere administrative or executive decision.
40. Paragraph 42 to 50, 55 and 56 of the said judgment is quoted as under: -
"42. The Division Bench in considering the view has entered into an arena which was not required to be done. Much labouring was done in interpreting the word "outsourcing", however, such an exercise ought to have been avoided as it stands outside the scope of judicial review. We have already noted the fact that "outsourcing" as a matter of policy is being introduced throughout the State. It is one thing to say that it has to be given effect to with caution as recommended by the Seventh Central Pay Commission, and another to strike it down as unconstitutional. "Outsourcing" per se is not prohibited in law. It is clear that a recruitment by way of "outsourcing" may have its own deficiencies and pitfalls, however, a decision to take "Outsourcing" cannot be declared as ultra vires the Constitution on the basis of mere presumption and assumption. Obviously, we do not know the nature of the scheme and safeguards attached to it.
43. Reliance is placed on a decision of this Court in Catering Cleaners of Southern Railway, wherein the petitioners were "catering cleaners" employed for cleaning in various railway station, and they were not even paid the minimum wages. Their grievance was that they had no security of service, while being paid a paltry sum as wages. The aforesaid decision has no application qua the present Regulation, which has got its own laudable object, introduced on the basis of economic criteria apart from efficiency.
44. We are also not dealing with the scheme per se, and therefore, are in dark on the conditions of service. The challenge in the present case is not by the employee, recruited by way of "outsourcing", and hence, we hold the said decision on which much reliance is sought to be made by the respondents will not be of any help. One cannot simply presume that "outsourcing"22
as a method of recruitment would necessarily be adopting contract labour and that there exists an element of unfair trade practice, as sought to be contended by the respondents.
45. Article 14 is positive in nature. Adequate leverage is to be provided to the law-maker in making the classification. Article 14 of the Constitution of India does not prohibit discrimination, what is required is a valid discrimination against a hostile one. We do not wish to multiply the aforesaid principle of law except quoting the following paragraph in Manish Kumar v. Union of India : (SCC p. 137, para 249) "249. We see considerable merit in the stand of the Union. This is not a case where there is no intelligible differentia. The law under scrutiny is an economic measure. As laid down by this Court, in dealing with the challenge on the anvil of Article 14, the Court will not adopt a doctrinaire approach. Representatives of the people are expected to operate on democratic principles. The presumption is that they are conscious of every fact, which would go to sustain the constitutionality of the law. A law cannot operate in a vacuum. In the concrete world, when the law is put into motion in practical experiences, bottlenecks that would flow from its application, are best envisaged by the law givers. Solutions to vexed problems made manifest through experience, would indeed require a good deal of experimentation, as long as it passes muster in law. It is no part of a court's function to probe into what it considers to be more wise or a better way to deal with a problem."
46. The entire issue has to be looked at from different perspective as well. By the policy decision made, the appellants have abolished the post though in an indirect way by providing for "outsourcing". Now, a court cannot create or sustain the aforesaid post. There is nothing on record to hold that the decision made is extraneous as it is obviously made applicable not only to the aided institutions but also to all Government Departments as well.
47. Arguments are advanced to the effect that interest of poor and needy is affected by the impugned Regulation. We do not know how the interest of the poor and needy is affected by the impugned Regulation. Admittedly, no challenge has been made to the decision taken in 2010 and 2011 which was to be made applicable to all the recruitments for Group IV posts in the Government, and not only for the institutions and the persons recruited by them. The entire litigation is triggered only by the institutions.
48. Whenever a lis is raised before the Court the grievance along with interest of the party concerned while laying a challenge has to be kept in mind. The aforesaid principle is expected to be kept in mind. More so, while invoking Article 226 of the Constitution of India being extraordinary and discretionary in nature. The aforesaid principle would help the Court to understand the actual reason behind seeking a relief by a party. Keeping the said principle in mind we could only say that the respondents/petitioners, being the institutions endowed with the power of recruitment, do not wish to let go of their hold.
2349. The Division Bench has also taken into consideration Section 9 of the Payment of Salary Act, 1971. We may only state that the aforesaid Act has got nothing to do with the impugned Regulation. The idea was to create a new set of employees introduced through "outsourcing". As stated, the impugned Regulation is only reiteration, as the Government Orders dated 8-9-2010 and 6-1-2011 by way of policy, takes care of the aforesaid view.
50. The High Court has placed the onus on a wrong premise on the appellants represented by their pleader. When a challenge is made either to a Regulation, rule or an Act, it is for the persons who challenged, to satisfy the Court that they cannot be sustained in the eye of the law. Such a challenge has to be considered within the contours of law. Mere fact that a counsel representing the State is not able to satisfy the Court on the policy challenged would not ipso facto lead to a declaration that it is unconstitutional. Having said that, we do believe that such an exercise is also not warranted at the hands of the High Court.
55. Having found that the appellants are justified in passing the relevant Government order followed by the impugned Regulation, we do not wish to impose any further liability on them. On the contrary, we do feel that institutions should be held responsible for the judicial adventurism undertaken.
56. However, we would also like to observe that the appellants will have to seriously consider Paras 3.72 and 3.83 of the Seventh Central Pay Commission. We expect the appellants to create an adequate mechanism to see to it that the persons employed by the process of "outsourcing" are not exploited in any manner."
41. Now coming to the facts of this case, the State of Jharkhand was created on 15.11.2000. A notification dated 05.07.2002 [Annexure-1] was issued by the State enabling appointment of Computer Operators on contractual basis for a maximum period of one year at the first instance till regular appointments were made. Perusal of the decision of the Finance department dated 05.07.2002 reveal that upon creation of the State of Jharkhand, the Jharkhand Public Service Commission could not be immediately constituted and the reservation policy was also not finalized therefore certain appointments were made on contractual basis. It was also observed that regular appointment would be made, as by this time the State had already formulated its reservation policy and Public Service Commission was also constituted and regular appointments were to be made but on account of emergent circumstances the appointments were to be made on contractual basis 24 for a maximum period of one year as per the terms and conditions mentioned in the decision dated 05.07.2002.
42. A resolution No. 1638 dated 16.06.2006 was issued by the Finance Department of the State of Jharkhand and a High-Level Committee headed by the Chief Secretary was constituted for making recommendation for the purposes of creation of new post after taking proposal from the concerned departments which included creation of post on account of use of computers. Upon receipt of proposal, it was also to be examined as to whether the requirement could be fulfilled through outsourcing or not and upon consideration by the High-Level Committee, the matter was to be placed before the Cabinet for approval/appropriate orders.
43. The petitioner has also annexed a copy of the letter dated 28.11.2008 [Annexure-2] issued by the Chief Engineer (Monitoring) Water Resources Department by which direction was given to all Chief Engineers and Superintendent Engineers, Water Resources Department for taking service of Computer Operator-cum-Data Entry Operator on contractual basis in their respective offices. Annexure-2 reveals that the terms and conditions of appointment was enclosed with the said letter which was to be in terms of the decision of the Welfare Department but the enclosure to the said letter dated 28.11.2008 has not been placed on record and accordingly the mode, manner, terms and conditions of selection has not been placed on record. However, as per the said letter dated 28.11.2008, the expenses for the Computer Operator were to be borne from contingency Fund within the budgetary allocation. Vide letter no. 10 dated 03.01.2009, earlier letter dated 28.11.2008 was modified to the extent of reducing minimum educational qualification for the purposes of appointment from Graduation to Intermediate. Pursuant to the aforesaid dated 28.11.2008, the petitioner had applied and was appointed for a contractual period of three months and it was extended from time to time.
44. The terms and condition of the appointment of the petitioner is as under: -
अधीक्षण अभियंता का कायाालय, जलपथ अंचल, रांची।
कायाालय आदे श 25 मुख्य अभियंता, योजना मोनेटर ं ग एवं आयोजन, जल संसाधन भविाग, ां ची के पत्ांक- 1/PMC/भवभवध/309/08-1357 ां ची भिनां क 28.11.08 एवं मुख्य अभियंता जल संसाधन भविाग ां ची के पत्ां क 3287 भिनां क 05.12.08 के आलोक में श्री घनश्याम कुमा को इस कायाा लय में कम्प्यूट ऑप े ट काया क ने हे तु भवत्त भविाग के सकल्प संख्या-961 भिनाक 13.05.05 के आलोक में रू0 5100/- (पाच हजा एक सौ रूपये) मात् प्रभतमाह भनयत ाभि प भनम्ां भकत ितों प अस्थायी रूप से काया क ने हे तु भिनां क 01-01-2009 से खा जाता है -
1. इन्हें भनयत (Fixed) अनुबंध ाभि अनुमान्य होगी। अनुबंध ाभि के अलावा भकसी प्रका का यथा महगाई ित्ता, मकान िाडा, नग क्षभतपूभता ित्ता आभि अनुमान्य नहीं होगा।
2 ये पेंिन सबधी फायिे के हकिा नहीं होंगे।
3. इनको कैलेण्ड वर्ा में स का ी कभमायों के अनुरूप आकस्मिक अवकाि िे य होगा, प न्तु अन्य भकसी प्रका के अवकाि के हकिा नहीं होगे।
4 इन्हें अस्थायी रूप से भवत्तीय वर्ा (2008-09) में माचा 2009 तक के भलए खा जा हा है प न्तु इनका काया सतोर्प्रि हने एवं काया की आवश्यकता के आधा प अनुबंध अवभध के भवस्ता प भवचा भकया जायेगा।
5 इन्हें पििा ग्रहण क ने के भलए कोई यात्ा ित्ता अनुमान्य नहीं होगा।
6 कायाालय द्वा ा इनकी भनयुस्मि भबना पूवा सूचना के किी िी द्द की जा सकेंगी।
7 इनकी भनयुस्मि भजला भसभवल सजान / स का ी भचभकत्सक से प्राप्त भफटनेस सभटा भफकेट के आधा प की जायेगी।
8. अनुबन्ध प खा जाना मात् अस्थायी व्यवस्था है । इस का ण से इनका स्थायी / अस्थायी नौक ी संबंधी कोई िावा मान्य नहीं होगा।
9. पत् के साथ सलग्न घोर्णा पत् क िान के साथ संलग्न घोर्णा पत् योगिान के साथ िे ना अभनवाया होगा। घोर्णा पत् नहीं िे ने की स्मस्तभथ में योगिान स्वीका नहीं भकया जायेगा।
10. अनुबंध की अवभध लगाता एक वर्ा से अभधक िी नहीं होगी।
Sd/-
अधीक्षण अभियंता, जलपथ अंचल, ां ची।
45. The contract was extended from time to time as under: -
Sl.no. Date of letter of Period
extension
1 581 dt. 04.04.2009 03.04.2009 to 31.12.2009
2 1987 dt. 31.12.2009 01.01.2010 to 31.03.2010
3 602 dt. 03.04.2010 03.04.2010 to 30.09.2010
4 1746 dt. 04.10.2010 04.10.2010 to 31.12.2010
5 10 dt. 03.01.2011 01.01.2011 to 31.03.2011
6 514 dt. 31.03.2011 02.04.2011 to 30.09.2011
26
7 1630 dt. 01.10.2011 01.10.2011 to 31.03.2012
8 991 dt. 15.06.2012 April 2012 to September
2012
9 1628 dt. 06.10.2012 October 2012 to March
2013
10 456 dt. 30.03.2013 02.04.2013 to 31.03.2014
11 882 dt. 04.07.2013 02.04.2013 to 31.07.2013
12 1218 dt. 14.09.2013 01.08.2013 to 30.09.2013 13 1408 dt. 30.10.2013 01.10.2013 to 31.10.2013 14 136 dt. 31.01.2014 01.11.2013 to 31.03.2014 15 668 dt. 21.05.2014 02.04.2014 to 31.07.2014 16 1245 dt. 10.09.2014 01.08.2014 to 31.03.2015 17 440 dt. 17.04.2015 01.04.2015 to 31.03.2016 18 360 dt. 08.04.2016 01.04.2016 to 31.03.2017 19 279 dt. 07.04.2017 01.04.2017 to 31.03.2018 20 679 dt. 17.05.2018 24.04.2018 to 25.03.2019 21 950 dt. 27.05.2019 27.05.2019 to 26.11.2019 22 2207 dt. 28.11.2019 28.11.2019 to 27.11.2020 23 117 dt. 22.01.2020 28.11.2019 to 31.03.2020 24 484 dt. 20.04.2020 04.04.2020 to 31.05.2020 25 566 dt. 02.06.2020 02.06.2020 to 31.07.2020 26 748 dt. 29.07.2020 04.08.2020 to 31.03.2021 27 470 dt. 19.04.2021 19.04.2021 to 31.05.2021 28 540 dt. 17.06.2021 16.06.2021 to 31.08.2021 29 823 dt. 31.08.2021 02.09.2021 to 31.03.2022 30 314 dt. 02.04.2022 02.04.2022 to 30.06.2022 27 31 546 dt. 28.06.2022 01.07.2022 to 30.09.2022 32 899 dated 7.10.2022 01.10.2022 to 31.01.2023 33 Letter of curtailment of 01.10.2022 to 22.12.2022 period - letter no 1145 dated 22.12.2022 modifying letter no 899 dated 7.10.2022
46. Vide letter dated 27.05.2011 issued by the Cabinet Secretariate and Co-ordination Department, it was observed that it came to the notice that appointment of Computer Operators on contractual basis was not done in terms of the decision of the Finance Department dated 05.07.2002 (Annexure-1). It was also observed that different departments were taking works from Computer Operator by making one-time payment/honorarium/daily wage/ job work contractor etc. and there was no uniformity in the matter. A Reference has been made to the decision of the Finance Department dated 06.10.2010 in letter dated 27.05.2011 stating that in terms of decision dated 06.10.2010, the work from Computer Operators appointed on contractual basis will not be taken after 31.03.2011 except for those posts where the computer operators were to be appointed on regular basis as per the decision taken by the Council of Ministers. However, due to such decision, problems were being faced in doing the work as regular appointment could not be made against the available posts. With this background, the following decision was taken vide resolution dated 27.05.2011 by the Cabinet Secretariat and Co-ordination Department of the State Government: -
(i) Those departments where there are no sanctioned posts of Computer Operators, steps were to be taken to sanction the posts of Computer Operators and further the inconsistencies in connection with the appointments made on contractual basis and payment made to such persons were to be ironed out within a period of six months.
(ii) Secretary of Labour/Finance/Personal/IT/ Cabinet Secretariate and Co-ordination Department would jointly frame the service conditions and pay scale in a uniform manner and the State Service Commission was to complete the process of recruitment.
Further, the aforesaid earlier decision communicated vide Finance Department letter dated 06.10.2010 to discontinue the contractual period of computer operators after 31.03.2011 [except for 28 those posts where the computer operators were to be appointed on regular basis as per the decision taken by the Council of Ministers] was to be kept in abeyance for a period of one year from 01.04.2011 or till the regular appointments are made. The said period of keeping the letter dated 06.10.2010 in abeyance was extended from time to time in similar manner vide decision dated 27.04.2012, 12.06.2013 and lastly vide decision dated 07.09.2013 of the Cabinet Secretariate and Co-ordination Department for the period from 01.08.2013 to 31.10.2013 or till regular appointments are made whichever is earlier.
47. The aforesaid decisions reveal that there were certain posts sanctioned for Computer Operators in certain departments of the State Government which were filled up on contractual basis in terms of the decision of the Cabinet awaiting regular recruitment and there were many more persons who were engaged in different department as Computer Operator on contractual basis but their appointments were not against sanctioned posts and it was for this reason that vide resolution dated 27.05.2011 it was resolved by the Cabinet Secretariat and Co- ordination Department of the State Government that steps were to be taken to sanction the posts of Computer Operators in those departments where there are no sanctioned posts of Computer Operators.
48. Accordingly, the Personal, Administrative Reforms and Rajbhasha Department of the State of Jharkhand issued letter dated 03.08.2013 [Annexure-9] to the Secretaries of all the departments to provide the details of persons working on contractual basis appointed through outsourcing or otherwise and the details required were under 11 heads, which are as under: -
(1) Name of computer operator hired through contract/ other source (2) Age (Date of Birth) (3) Educational Qualification (General or technical) (4) Date of appointment and year (5) The procedure followed for appointment (Contract/ outsourcing/other mode) (6) The position regarding following of reservation roster (7) Category of the incumbent (Unreserved/Schedule Casts/ Schedule Tribes/BC I/BCII) (8) Whether the post is sanctioned or not (9) Work experience prior to appointment (10) Salary/wages/honorarium being paid (11) The name and designation of the appointing authority.
The details were to be sent for discussion to be held on 07.08.2013 at 3.30 P.M. It was further directed that no new 29 Computer Operator was to be appointed without the post being sanctioned. It was directed that the instructions were to be strictly followed.
49. Thereafter a letter dated 11.08.2014 was issued by the Cabinet Secretariate and Co-ordination Department that no action was to be taken for extending the services of computer operators working in the Cabinet Secretariat and Co-Ordination Department and so far as other departments are concerned, they were to take decision at their own level.
50. Finally, a decision dated 27.06.2019 was taken by aforesaid High- Level Committee headed by the Chief Secretary, State of Jharkhand constituted vide aforesaid resolution No. 1638 dated 16.06.2006, interalia, with respect to various departments including Water Resources Department and the documents annexed with the writ petition as contained in page 174 reveal that the decision has the approval of the Chief (Finance) Minister and was to be uploaded in the official web-site.
51. The decision of the High-Level Committee is quoted as under:
एजे ण्डा जल संसाधन भविाग जल संसाधन भविाग के क्षेत्ीय 1. जल संसाधन भविाग के क्षेत्ीय नंब का संलेख ज्ञापंक कायाा लयों के भलभपक 182 (एक कायाा लयों अंतगात भलभपक के 182 3260 भिनां क सौ वयासी) पिों को प्रत्यभपात पिों का प्रत्यभपात क ते हुए कंयूट 24.06.2019 क ते हुए कंयूट ऑप े ट 182 ऑप े ट के पिों प वाह्य श्रोत पिों को संभविा प भनयुि क ने (outsourcing) से सेवा प्राप्त भकया हे तु सृभजत क ने का प्रस्ताव जाने के अनुिंसा -
क्र० पिनाम पिों
की
संख्या
1 कंयूट 182
ऑप े ट
कुल 182
2. कंयूट ऑप े ट के पिों प वाह्य
श्रोत (outsourcing) से सेवा प्राप्त
भकया जाने हे तु अनुिंभसत कुल 182
पिों के आलावा भविागान्तगात
कंयूट ऑप े ट के कोई
अभतर ि पि नही ं हें गे.
भविागान्तगात कंयूट ऑप े ट के पूवा
से उपलब्ध पि इसी में सस्मिभहत समझें
जायेंगे।
3. उि प्रिों के भवरुद्ध भकये गये
माभसक मानिे य का िुगतान के
अभत े क कंयूट ऑप े ट के
पि/पिों के भवरुद्ध भकया गया कोई
िी माभसक मानिे य का िुगतान
भवत्तीय अभनयभमतता मानी जायेगी।
4. कंयूट ऑप े ट के पिों प
काया त कभमायों के माभसक
30
मानिे य का िुगतान भकसी िी
स्मिम मि से नही ं भकया जाय।
5. कंयूट ऑप े ट के पि प वाह्य
श्रोत (outsourcing) से सेवा प्राप्त
की जाय।
6. वाह्य श्रोत (outsourcing) के पि
स्वीकृत नही ं समझे जाये, अभपतु
वाह्य श्रोत से सेवा प्राप्त भकये जाने
हे तु अभधकतम कमी की संख्या
समझी जाएँ गी।
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नोट: सिी भविागों को भनम् भनिे ि भिया गया
1. पि सृजन के भलए िेजे जाने वाले प्रस्ताव में पूणा भवव ण यथा: भविागान्तगात पूणा पि सं चना, काया त बल, र ि बल, अनावश्यक/अनुपयोगी पिों भवव णी एवं सृभजत भकये जाने वाले प्रस्ताभवत पि के साथ अनावश्यक /अनु पयोगी पिों के प्रत्यपाण का प्रस्ताव इत्याभि का उल्लेख आवश्यक है ।
2. योजना सह भवत्त भविाग (भवत्त प्रिाग) के पत्ां क 1603 /भव 0 भिनां क 13.06.2019 में भिए गए भनिे ि का अनुपालन सुभनभित भकया जाय।
3. भजस भविाग / कायाा लय हे तु पि सृजन का प्रस्ताव भिया जा हा है , उसके कायािा का भवस्तृत उल्ले ख तथा पि सृजन की प्रासंभगकता का उल्लेख िी आवयिक है ।
4. वाहनों का क्रम GeM पोटा ल के माध्यम से ही भकया जाय।
Sd/- Sd/- Sd/- Sd/-
(के0 के0 खण्डे लवाल) (के0 के0 खण्डे लवाल) (सुखदे व भसंह) (डॉ0 डी0 के0 भतवारी)
अपर मुख्य सभचव अपर मुख्य सभचव विकास आयुक्त, झारखंड मुखय सविि, झारखंड
कावमिक प्र0 सु0 तथा राजभाषा योजना-सह-वित्त विभाग झारखण्ड
विभाग, झारखण्ड
52. Thus, it was proposed in the decision dated 27.06.2019 that 182 posts of Clerks in the Water Resources Department were to be converted to the post of Computer Operators and the earlier available posts of Computer Operators will be subsumed in total posts of 182 for Computer Operators but were to be filled up through 'outsourcing'.
Such engagement of Computer Operators through outsourcing were not to be treated as appointment against sanctioned post but were to be treated as induction of persons through 'outsourcing'. It was also observed that payment of monthly honorarium to be paid against Computer Operators over and above 182 posts would be treated as 'financial irregularity'. Thus total 182 posts of Computer Operators were made available inclusive of those which were already available but the engagement was to be done through 'outsourcing' up to a maximum 31 number of 182 and such engagement will not be treated to be against sanctioned post. Meaning thereby, the High-Level Committee headed by the Chief Secretary made total of 182 posts available for induction of Computer Operators in the Water Resources Department but decided not to fill up the posts through regular process but to engage Computer Operators through 'outsourcing'.
53. It is the case of the petitioner in paragraph 27 of the writ petition that the decision dated 27.06.2019 taken by aforesaid High-Level Committee headed by the Chief Secretary, State of Jharkhand constituted vide aforesaid resolution No. 1638 dated 16.06.2006, was never approved by the Cabinet but the respondents have neither brought on record any material with regards to grant of Cabinet approval of the decision dated 27.06.2019 nor the statements made in paragraph 27 of the writ petition has been denied . Rather, a stand has been taken in paragraph 26 of the counter affidavit that the decision not to engage Computer Operators on contractual basis and to induct computer operators through 'outsourcing' is a policy decision and in the light of the policy decision the service of the petitioner on contractual basis was not continued. Such stand was taken without bringing on record any material regarding approval of the Cabinet in terms of the resolution dated 16.06.2006 which clearly provided that in terms of the recommendation of the aforesaid Committee the concerned department were to act accordingly and as per requirement they would take the approval of the Cabinet and obtain appropriate orders. The said clause regarding approval of Cabinet in the resolution dated 16.06.2006 is quoted as under: -
"(iv) प्रिासी भविाग नये पिों के सृजन का प्रस्ताव गभित क ते समय भविाग के अन्तगात भवभिन्न कायाा लयों में सृभजत एं व काया त बल की उपयोभगता, कायाक्षमता का आकलन क यथासंिव अभतर ि पिाभधका ी / कमाचा ी से ही नयी आवश्यकता की प्रभतपूभता का प्रयास क े गे। इस क्रम में भविाग प्रस्ताभवत पिों की आवश्यकता, उपयोभगता एवं कम्पूट के प्रयोग से उत्पन्न प्रिासभनक आवश्यकता का आकलन क ते हुये इस बात को िी समीक्षा क लेगें भक आवश्यकता की पूभता आउट सोभसिंग के माध्यम से क ाई जा सकता है अथवा नहीं। आपवाभित पर स्मस्थभत में ही भविाग नये पिों का सृजन / उत्कमण का प्रस्ताव सभमभत के भवचा ाथा प्रस्तुत क े गे। नई गाभ़ियों के क्रय का प्रस्ताव गभित क ने में इस बात का ध्यान खा जायगा भक उन्हीं पिाभधका ी के भलये गा़िी क्रय का प्रस्ताव गभित भकया जाय भजन्हें भनयमानुसा वाहन अनुमान्य हैं।32
(v) संलेख के साथ व्यय भवव णी अभनवाया रूप से संलंग्न भकया जायगा, भजसमें माभसक एं व वाभर्ाक व्यय का स्पष्ट रूप से उल्लेख भकया जायगा।
(vi) भवत्त भविाग में प्राप्त संलेख, भविेर्क पि सृजन संबंधी संलेख प प्रिासी पिवगा सभमभत की अनुिंसा के पिात् कायापालक भनयमावली के भनयम-21 का अनुपालन क उसका संसूचन सम्बद्ध भविाग को भकया जाएगा।
(vii) प्रशासी पदवर्ा सभमभत को अनुशंसा के आलोक में संबंभधत भविार् भनयमानुसार अग्रेतर कारा वाई करें र्े और आवश्यकतानुसार मंभिपररषद का अनुमोदन प्राप्त कर राज्यादे श / स्वीकृत्यादे श भनर्ात करे र्े।
भवत्त भविाग के संकल्प संख्या-14/भव०, भिनांक 08.01.2001 को उपयुाि अंि तक संिोभधत समझा जाय।"
54. Paragraph 27 of the writ petition and paragraph 26 of the counter affidavit are quoted as under: -
"27. That it is stated that 'a proposal was mooted by the department for sanctioning of 182 nonfunctioning posts of clerks available in the different regional offices of Water Resource Department, Govt. of Jharkhand. The said proposal of the department was placed before the "PRASHASI PADWORG SAMITI" and the said committee in its meeting dated 27.06.2019, considered the proposal of the department and recommended to avail services of the computer operators through Outsourcing. The committee also mentioned in its recommendations that payment made to computer operators appointed through any other source should be treated as financial irregularity. It has also been mentioned by the committee that outsourcing post should not be construed as sanctioned post. That it is most relevant to mention here that the decision of the said "PRASHASI PADWORG SAMITI" taken in its meeting dated 27.06.2019 relating to appointment of the computer operators from out sourcing agency has only produced before the Finance Minister of the Govt. of Jharkhand for taking its approval thereafter this decision of the committee dated 27.06.2019 has been produced for approval before the council of the ministers (Mantri parishad) (Cabinet) but the council of the ministers (Mantri parishad) (Cabinet) has sent back this proposal with remarks "that the Computer Operators who are already working since back in secretariate office as well as field office on contractual basis their services cannot be taken from out sourcing".
It is further relevant to mention here that after receiving of the said remarks from the council of the ministers (Mantri parishad) (Cabinet), in-spite of sending names of all computer operators who were working in the Secretariate office as well as field office, 33 Department has sent proposal for appointment of only 14 Computer Operators who are working in the Secretariate office for its appointment to the "PRASHASI PADWORG SAMITI" and intentionally the name of that computer operators who are working in the field office have been left out from this proposal and put up this proposal for approval before the concerned departmental Minister and when the departmental Minister verified that the name of that computer operators who are working in the field office have been left out in this proposal then again he sent back this proposal to the Department, thereafter this proposal has never been produced before Council of Ministers in the light of Circular No. 1638 dated 16.06.06, and has never been approved by the council of the ministers (Mantri parishad), hence this proposal is still kept in abeyance by the department. It is further relevant to mention here that for that re ason the service period of the contract has been extended time to time by the department. This issue has also been published in the Newspaper itself."
Paragraph 26 of the counter affidavit "26. That it is stated and submitted that with regards to statement made in paragraph 16 to 44 it is submitted that the case of the petitioner is not covered. Since a policy decision was taken not appoint on contractual basis as the computer operator had to be outsourced from outsourcing agency and in light of the said policy decision, the service of the petitioner was not continued after the expiry of his contract period and no further time extension was awarded. The same is evident from the impugned order dated 22.12.2022 (vide Annexure 1 &2). Thus, it is clearly not a matter of termination of service but rather is a matter of non-extension of contractual engagement in light of the abovementioned policy decision and hence the petitioner cannot claim for regularisation as he was working on contractual basis for a certain period being well aware of the terms and conditions of the said engagement."
55. The entire counter affidavit is completely silent with regards to the approval by the Cabinet on the point of engagement of Computer Operators/Data Entry Operators in the Water Resources Department through outsourcing in terms of above quoted clause of the resolution dated 16.06.2006 and the decision of the Committee itself has been termed as a policy decision. Meaning thereby, the respondents are stating the decision dated 27.06.2019 of the High Level Committee 34 constituted in terms of resolution dated 16.06.2006 as the policy decision and are completely silent with regards to above quoted clause of resolution dated 16.06.2006 requiring that in terms of the recommendation of the aforesaid High-Level Committee, the concerned departments were to act accordingly and as per requirement they would take the approval of the Cabinet and obtain appropriate orders.
56. Thus, on the face of the counter affidavit the decision of the Water Resources Department to go for induction on 182 posts of Clerk (redesignated as Computer Operators) throughout 'outsourcing' is not backed by approval of the Cabinet which was required in terms of the above quoted clause of resolution dated 16.06.2006.
57. In view of the fact that the decision of the Committee dated 27.06.2019 does not have the approval of Cabinet, therefore the arrangement which has been made by the respondents to engage Computer Operators through outsourcing agency is itself an ad-hoc arrangement and the impugned action reflects that the sole ground for refusal to extend the period of contract of the petitioner was the aforesaid decision of the committee dated 27.06.2019 and follow up letters and the respondents have forced the petitioner to continue the work through outsourcing agency.
58. Meaning thereby, neither the 'Computer Operator' has changed nor the respondents receiving the services have changed, but the modality of appointment has changed. Earlier decision was working directly by virtue of contract extended from time to time and now the same work is sought to be performed through outsourcing agency and by refusing to extend the period of contract. The records also reveal that the period of contract of the petitioner was extended from time to time subject to regular appointments. Thus, one ad-hoc arrangement of taking work through contract is replaced by another ad-hoc arrangement of taking work through outsourcing agency. As a decision to take work from outsourcing agency has not been approved by the Cabinet, there can be a situation where the State decides not to make any recruitment and get the work done through outsourcing agency but the same is essentially as a policy decision duly approved by the Cabinet. In absence of 35 approval by the Cabinet with regard to taking work through outsourcing agency, the discontinuation of the petitioner on contract basis on the sole ground that the Computer Operators are now to be engaged through outsourcing agency cannot be justified in the eyes of law. Accordingly, the petitioner is held to be entitled to work on contractual basis till regular employment are made or till the policy decision is taken not to make any regular appointment and engage all computer operators through outsourcing agency.
59. The fact remains that as per the writ petition numerous instances have been given as mentioned above regarding extension of period of contract of Computer Operators in spite of decision dated 27.06.2019 by the Water Resources Department but there is no explanation or justification given in the counter-affidavit for taking such step with regards to one or the other person and deny the same benefit to the petitioner. It is also not clear from the counter-affidavit as to whether such continuation of contractual employment was with regard to those persons who were working against vacant sanctioned post or against additional persons inducted on account of dire need of Computer Operators/Data Entry Operators. The decision dated 27.06.2019 reveal that there were certain posts of Computer Operators which were also to be merged with 182 maximum number of posts and all were to be recruited through 'outsourcing'. It is not in dispute that the number of sanctioned posts for Computer Operators /Data Entry Operators were much less than the required and inducted and the earlier decision of Council of Ministers as referred above was to induct persons against sanctioned posts till the regular appointments were made. There is certainly a marked difference between appointment on contractual basis against vacant sanctioned posts and induction on contractual basis over and above the available posts but as per need and decision of the government. However, as per the decision of the Hon'ble Supreme Court in the case reported in (2021) 15 SCC 600 (supra) there is no legal bar in taking a policy decision on the part of the State to induct persons through outsourcing instead of going for regular appointments.
60. In view of the aforesaid facts and circumstances and considering the nature of relief sought by the petitioner, it would be sufficient to 36 observe that the decision of the Water Resources Department to induct Computer Operators /Data Entry Operators through 'outsourcing' without there being approval of the Council of Ministers can at best be said to be an ad hoc arrangement considering the pressing need of the Computer Operators/Data Entry Operators. In such circumstances, apparently, the ad hoc arrangement of having Computer Operators through contract like that of the petitioner cannot be replaced by another ad hoc arrangement of engaging Computer Operators/Data Entry Operators through outsourcing agency and the petitioner cannot be forced to perform the same work, now through 'outsourcing' agency.
61. The petitioner was admittedly granted last extension of the period of contract vide letter dated 07.10.2022 (period 01.10.2022 to 31.01.2023) which was curtailed vide letter dated 22.12.2022 (period - 01.10.2022 to 22.12.2022). The only reason for curtailment of the period of contract of the petitioner from 01.10.2022 to 31.01.2023 to 01.10.2022 to 22.12.2022 vide letter dated 22.12.2022 and further asking the petitioner to come through outsourcing agency to do the same work stated to be the decision taken to engage computer operators through 'outsourcing'.
62. Although the petitioner being engaged on contractual basis does not have any right to seek extension of contract but the impugned action of the respondents reveal that the respondents are replacing the ad hoc arrangement of taking work of Computer Operator through contract till regular appointments are made by another ad hoc arrangement of engaging Computer Operators including the petitioner through outsourcing agency. The new arrangement is an ad hoc arrangement as the decision dated 27.06.2019 taken by the Committee not to go for regular appointment of computer operators has not received the approval of the Council of Ministers. It has been, interalia, held in the judgement passed in the case of Babita Kumari and others (supra) in connection with Computer Operators in the same Water Resources Department as that of the petitioner working on contractual basis that an ad hoc arrangement cannot be replaced by another ad hoc arrangement and the appeal has also been dismissed. The view is based 37 on the judgements passed by Hon'ble Supreme Court as has been mentioned in the judgement itself.
63. Accordingly, the impugned letter No. 1145 dated 22.12.2022 curtailing the period of contract and limiting it up to 22.12.2022 coupled with the action to ask the petitioner to do the same work through outsourcing agency amounts to replacing the ad hoc arrangement by another ad hoc arrangement cannot be sustained in the eyes of law and is accordingly set-aside. Consequently letter No. 4507 dated 09.09.2021 [Annexure-24] and letter No. 5393 date 18.10.2022 [Annexure-28] whereby and whereunder decision has been taken by the respondent authorities to appoint Computer Operator-cum-Data Entry Operator through outsourcing agency in place of petitioner who was already working as Computer Operator is set-aside only to the extent it affects the petitioner. Letter No. 1146 dated 22.12.2022 and letter No. 1147 dated 22.12.2022 [Annexure-30/1 & 30/2] issued by the Respondent No.8 as a sequel to letter No. 4507 dated 09.09.2021 is also set-aside only to the extent it affects the petitioner. However, since the contract period has come to an end, there would be no automatic reinstatement or automatic renewal of contract.
64. This Court also holds that if one or the other Computer Operator, who is similarly situated as that of the petitioner in the matter of his initial engagement and extension of period of contract from time to time by the respondents, has been continued by the respondents including that of the petitioners in the case of Babita Kumari (supra), there can be no reason to discontinue the petitioner till the regular appointments are made or till the State takes a policy decision in accordance with law upon approval of the Council of Ministers in terms of the resolution No. 1638 dated 16.06.2006 to make regular appointments or not to make regular appointments of Computer Operators and engage them from outsourcing only. The State has not been able to point out any distinguishable feature between the case of Babita Kumari and others and the case of the petitioner except that the petitioner has filed the case after termination of contract and Babita Kumari and others had filed the case during subsisting period of contract. The said distinction is immaterial as the contract period of the petitioner was unilaterally 38 curtailed and he was being forced to do the same work through outsourcing agency which was the cause of action for the petitioner to move this Court.
65. All the Computer Operators who are working with the respondents on contractual basis in the same scheme of affairs are entitled to be treated at par unless there is some cogent reason to treat them differently with respect to their nature and manner of appointment including as to whether they were appointed on contractual basis against sanctioned post or otherwise.
66. It is further observed that if the respondents considered the claim of regularisation of one or the other similarly situated person as that of the petitioner, there can be no reason to keep the petitioner out of such a consideration. The claim of regularisation of the petitioners of Babita Kumari's case was earlier rejected by the respondents which was challenged in the said case and the order refusing regularisation was set- aside with a direction to consider the claim for regularisation but the result of such a direction passed by this Court has not been brought on record by the either party. The petitioner is entitled to the same relief of continuing on contract basis if extended to one or the other similarly situated persons particularly the petitioners of Babita Kumari's case.
67. In order to claim such a relief, the petitioner shall approach the respondent No. 2 by filing a detailed representation and the respondent No. 2 in consultation with the other respondents shall pass appropriate reasoned order with regards to allowing the petitioner to continue on contractual basis if one or the other similarly situated person has been given such a benefit whose details be mentioned by the petitioner in the representation itself. The needful be done within a period of one month from the date of representation after giving an opportunity of hearing to the petitioner. The reasoned order be communicated to the petitioner through speed post.
68. The petitioner has also made a prayer to direct the respondents to give arrear of salary for the period from 02.04.2018 to 28.04.2018 during which he claimed to have worked and for that purpose he has referred to biomatrix attendance. This Court finds that none of the letters of extension cover the aforesaid period, inasmuch as, the petitioner has 39 produced the letter of extension for the contractual period from 01.04.2017 to 31.03.2018 vide letter No. 279 dated 07.04.2017 and then for the contractual period from 24.04.2018 to 25.03.2019 vide letter No. 679 dated 17.05.2018. Thus, no contract was subsisting during the period from 02.04.2018 to 23.04.2018. In such circumstances, merely by referring to biomatrix attendance, no relief for arrear of salary during the period from 02.04.2018 to 28.04.2018 can be granted to the petitioner.
69. This writ petition is accordingly disposed of with the aforesaid observations and directions.
70. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Mukul/AFR 40