Jharkhand High Court
Ritesh Ranjan & Anr vs State Of Jharkhand & Ors on 1 August, 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 861 of 2011
With
I.A. No. 1704 of 2011
Ritesh Ranjan & another ...... Petitioners
Versus
The State of Jharkhand & ors. ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioners : Mr. Indrajit Sinha, Advocate
For the RespondentState : J.C. to Sr. S.C.I
For Respondent Nos. 3, 4 & 5 : None
st
04/Dated: 1 August, 2011
1.Learned counsel for the petitioners submitted that the petitioners are working as Lecturers on contractual basis since December 2006. They are working honestly, sincerely, diligently and to the satisfaction of the respondents. Never any notice has been given to the petitioners for their unsatisfactory work. Moreover, learned counsel for the petitioners has relied upon the decision rendered by the Hon'ble Supreme Court in the case of State of Haryana and others v. Piara Singh and others, reported in AIR 1992 SC 2130 and submitted that one adhoc employee cannot be replaced by another adhoc employee. The petitioners are appointed on contractual basis and now the respondents are terminating the services of the petitioners and the petitioners are replacing by appointing other lot of similarly situated contractual employee/Lecturer. Experienced hand teacher will go away and the fresh lot of Lecturers will be appointed. This will also cause loss to the students for whom the University has been established.
2. It is further submitted by learned counsel for the petitioners that out of the total contractual basis Lecturers, the petitioners' services are going to be terminated, whereas, 27 similarly situated contractual basis Lecturers are going to be appointed by the respondents. This fact has been highlighted in paragraph 20 of the memo of the petition. Thus, there is discrimination of the petitioners from the similarly situated other candidates.
3. Learned counsel for the respondentState has nothing much to submit because contesting respondents are respondent nos. 3, 4 and 5.
4. Learned counsel for respondent nos. 3, 4 and 5 is absent.
5. There is, prima facie, a case in favour of the present petitioners as they are working on contractual basis as Lecturers since December 2006. Moreover, 2 similarly situated other contractual basis Lecturers, who are 27 in number, are going to be retained by the respondentUniversity. Moreover, looking to the advertisement annexed at Annexure to the interlocutory application, it appears that the respondentUniversity has given advertisement for appointment of 29 Lecturers on contractual basis for B. Ed. Course. Thus, it appears that the petitioners are also Lecturers on contractual basis. They are going to be replaced by other Lecturers on contractual basis. Thus, lot of experienced hand Lecturers will have to go out and another fresh lot of Lecturers will be appointed again on contractual basis. Thus, the students will be deprived of the experienced hand Lecturer for whom the University has been constituted. Thus, there is, prima facie, a case in favour of the present petitioners. Moreover, balance of convenience is also in favour of the present petitioners and irreparable loss will be caused to the petitioners if the stay, as prayed for in the interlocutory application, is not granted. Moreover, paragraph 25 of the decision rendered by the Hon'ble Supreme Court in the case of State of Haryana and others v. Piara Singh and others, reported in AIR 1992 SC 2130, reads as under:
"25. ................. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the workcharged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a causal labourer is continued for a fairly long spellsay two or three yearsa presumption may arise that there is regular 3 need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6490 referred to hereinbefore) both in relation to workcharged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
In view of the aforesaid decision also, there is, prima facie, a case in favour of the present petitioners.
6. In similarly situated another writ petition being W.P. (S) No. 695 of 2009 dated 29th April, 2009 (Annexure 5 to the memo of the petition), this Court while admitting the writ petition passed the following order in paragraph 7: "7. I hereby, direct the respondents and their officers to retain the services of the present petitioners. If any new ground is emerging, like the misconduct etc., then, the respondents are permitted to hold an enquiry and take a legal action, permissible under the law, but, the termination will be done by the permission of this Court. If the respondents find any difficulty, they are at liberty to move an Interlocutory Application in the pending writ petition."
7. In view of the aforesaid facts and the decisions and also looking to the contentious issues raised in this writ petition, Rule.
8. Rule is made returnable on 17th October, 2012.
9. Meanwhile, I hereby direct the respondents and their servants and officers to retain the services of the present petitioners. If any new ground is found like misconduct etc., the respondents are permitted to hold inquiry and take legal action, but, the termination will be done with prior permission of this Court. If the respondents find any difficulty, they are at liberty to move before this Court by filing a fresh interlocutory application in this pending writ petition.
10. Registry is directed to enlist this matter under the heading "For Hearing"
on 17th October, 2012.
11. I.A. No. 1704 of 2011 is, accordingly, disposed of.
(D.N. Patel, J.) Ajay