Jharkhand High Court
Dilip Kumar Bera vs Education on 7 September, 2017
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1963 of 2016
Vinita Prakash ... ... Petitioner
Versus
The State of Jharkhand & Ors ... ... Respondents
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
For the Petitioner : Mr. Kumar Harsh, Advocate
For the State : J.C. to S.C.IV
04/Dated: 7th September, 2017
The petitioner was given the charge of the Principal,
Government Pharmacy Institute, Bariatu, Ranchi. The said was
adhoc arrangement. The petitioner was replaced by respondent
no. 5 as charge was given to the respondent no.5. This
arrangement is also an adhoc arrangement. This shows that an
adhoc arrangement is replaced by another adhoc arrangement
which has been depicted. The post of the Principal is lying
vacant since atleast from 2009.
Learned counsel for the state is directed to file counter-
affidavit stating within what time they will fill up the post of
Principal on permanent basis.
List this case after two weeks.
(Ananda Sen, J.)
Amar/c.p-1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2239 of 2016
.....
Nripendra Nath Mahto, son of Shri Mansa Ram Mahto, resident
of village-Lawa, P.O. Simagunda, P.S. Nimdih, District-
Seraikella-Kharsawan. ... ... Petitioner
Versus
1.The State of Jharkhand
2.Administrator, Subarnrekha Multipurpose Project,
Subarnekha Bhawan, Jamshedpur
3.Chief Engineer, Subarnrekha Multipurpose Project,
Subarnekha Bhawan, Jamshedpur
4.Executive Engineer, Central Camp & Store Division, Chandil,
Seraikella-Kharsawan. ... ... Respondents
.....
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
For the Petitioner : Mr. A.K.Sahani, Advocate
For the State : J.C. to A.G
.....
03/Dated: 7th September, 2017
The claim of the petitioner for regularisation has been
dismissed by reasoned order dated 09.03.2016. The said order
is under challenge. It has been mentioned in the reasoned order
that the petitioner is a displaced person of Subernarekha Dam
and was never appointed as computer typing operator either
temporary or on contractual basis. It has also been mentioned
that the petitioner is not working as typist-cum-computer
operator in the Subernarekha Dam Circle. Rather the petitioner
was merely doing typing work at the rate of Rs.10/ per page and
his remuneration was paid through vouchers, since March,
2009.
2. Learned counsel for the petitioner submits that though
his case for regularisation has been rejected yet the petitioner is
entitled to get payment at par with the others similarly situated
persons or/the computer operator who has been engaged on
outsourcing.
-2-
3. After going through the reasoned order, I find that no
case for regularisation is made out so far as petitioner is
concerned in view of the finding in the reasoned order. There is
nothing on record to controvert the said finding.
4. So far as the claim of the petitioner in respect of parity in
payment of wages paid with the other similarly situated persons
and other outsourced computer operators is concerned, the
petitioner is directed to file representation before the respondent
no.3 who will consider the case of the petitioner in terms with
the resolution of the Government. The concerned respondent
will pass a reasoned and speaking order on the representation of
the petitioner as per law. The petitioner will file all the
documents which he relies upon and will show instance to claim
parity. The respondent no.3 will consider, the representation of
the petitioner and the points raised by him and thereafter, a
reasoned order should be passed within a period of ten weeks
from the receipt of the copy of this order along with
representation of this petitioner.
5. The arrears of payments, if any, should be paid to the
petitioner within the said period.
6. With the aforesaid observations and directions, this writ
application is disposed of.
(Ananda Sen, J.)
Amar/c.p-2
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2255 of 2016
Narmadeshwar Nath Mishra ... ... Petitioner
Versus
CCL & Ors ... ... Respondents
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
For the Petitioner : Mr. O.P.Singh, Advocate
For the State : J.C. to A.G
06/Dated: 7th September, 2017
Vide order dated 29.07.2016, the counsel for the C.C.L. is
directed to file counter-affidavit but till date no counter-affidavit
has been filed in this case. The C.C.L. is sleeping over the
matter for the last one year without filing counter-affidavit. The
C.C.L. is directed to file counter-affidavit within two weeks
subject to payment of cost of Rs. 5000/-.
The amount should be deposited to JHALSA, Ranchi and
the receipt of such payment should be filed before this Court
along with counter-affidavit. The office will not accept the
counter-affidavit, if the receipt showing payment to JHALSA is
not produced.
List this case thereafter.
(Ananda Sen, J.)
Amar/c.p-2
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3473 of 2016
Jyoti Minz, wife of Pranay Menos Eeka, resident of Bethal Grace
Collage, Road No.4, Mango, P.O. & P.S. Mango, District-East
Singhbhum ... ... Petitioner
Versus
1.The State of Jharkhand
2.Under Secretary, Agriculture, Animal Husbandry &
Cooperative Department, Government of Jharkhand
... ... Respondents
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
For the Petitioner : Mr. Indrajit Sinha, Advocate
For the State : J.C. to Sr. S.C.III.
03/Dated: 7th September, 2017
Mr. Ajay Kr. Sah learned counsel appearing on behalf of
the petitioner submits that the petitioner has already been
superannuated. In this writ application the petitioner has
challenged his order of transfer.
In view of the aforesaid submission and since the
petitioner is already superannuated, accordingly this writ
application stands dismissed as infructuous.
(Ananda Sen, J.)
Amar/c.p-2
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2619 of 2016
.....
Tetar Rabidas, son of late Sattan Rabidas, resident of village-
Maharajpur, P.O. Maharajpur Kalyani, P.S. Taljhari, District-
Sahibganj, Jharkhand ... ... Petitioner
Versus
1.The State of Jharkhand
2.The Deputy Commissioner, Sahibganj
3.The Principal Chief Conservator of Forest, Van Bhawan,
Ranchi
4.The Regional Chief Conservator of Forest, Dumka
5.The Divisional Forest Officer and Social Forestation, Sahibganj
... ... Respondents
.....
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
.....
For the Petitioner : Mr. Swami Nath Prasad Rai, Advocate
For the State : Mr. Sumir Prasad, Advocate
07/Dated: 7th September, 2017
Learned counsel for the respondents-State submits that
the counter-affidavit has not been filed in this case. He submits
that in view of the admitted facts in the writ application, it is not
necessary to file counter-affidavit.
2. The petitioner in this writ application has prayed for
regularisation of service since he has worked in the Forest
Department from 1984 i.e. for more than 15 years. The prayer in
this writ application is only for regularisation.
3. Learned counsel for the petitioner submits that the
petitioner was engaged on daily wages on 01.03.1984 and as
per the averments made in the writ application the petitioner
worked till 2004. The petitioner to substantiate his claim relies
on Annexure-1 which suggests that the petitioner had worked
till 2004.
4. Learned counsel for the petitioner submits that during
that period already there was a vacancy and the petitioner
should have been regularized against the said vacancy. He
-2-
submits that other person who had appointed after the
petitioner has been regularised but the petitioner has been left
behind.
5. Be whatever as it may the fact remains that the petitioner
was disengaged in the year, 2004 itself. The Hon'ble Supreme
Court in the case of Oshiar Prasad Vs. Sudamdih Coal
Washery as reported in (2015) 4 SCC 71 has held that in a
case where there is no relationship of employer and employee no
order of regularization can be passed. It has been held that if
the services of the employee has been terminated by any
reasons, the only relief the employee can claim is to challenge
the legality and correctness of his disengagements or removal
from service.
6. Thus, as per the judgment of the Hon'ble Supreme Court
the continuity of service is sine quo non for seeking
regularisation in this case, admittedly the petitioner has not
worked after 2004.
7. Admittedly, his disengagement has not been challenged
in this writ application. Thus, in view of the judgment of the
Hon'ble Supreme Court no relief can be granted to the
petitioner.
8. Thus, this writ application stands dismissed of.
(Ananda Sen, J.)
Amar/c.p-2
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3055 of 2016
.....
1.Barjdeo Sharma
2.Ganesh Yadav
3.Yugal Yadav
4.Manoj Kumar Raout
5.Bandhan Mahto
6.Basant Gope
7.Mithilesh Kumar Singh
8.Shekh Sanaullah
9.Nema Gope
10.Makbul Ansari
11.Lakhanlal Mistri
12.Krishnalal Yadav
13.Ganesh Ram
14.Ganesh Mahto
15.Dawarika Ram
16.Dineshwar Giri
17.Arjun Mahto ... ... Petitioners
Versus
1.The State of Jharkhand
2.The Secretary, Drinking Water & Sanitation Department,
Dhurwa, Ranchi
3.The Deputy Secretary, Drinking Water & Sanitation
Department, Project Building Dhurwa
4.That Under Secretary, Drinking Water & Sanitation
Department, Project Building, Dhurwa
5.The Engineer In-Chief, Drinking Water & Sanitation
Department, Project Building, Dhurwa
6.The Chief Engineer (Headquarter), Drinking Water &
Sanitation Department, Project Building, Dhurwa
7.The Superintending Engineer, Drinking Water & Sanitation
Circle, Hazaribagh
8.The Executive Engineer, Drinking Water & Sanitation
Division, Hazaribagh
9.The Executive Engineer, Drinking Water & Sanitation
Division, Jhumritilaiya, Koderma ... ... Respondents
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
For the Petitioners : Mr. Vikash Kumar, Advocate
For the State : J.C. to A.G
05/Dated: 7th September, 2017
Today, this writ application is disposed of on one short
point.
2. These petitioners have challenged the office order dated
11.04.2016whereby the Engineer-in-Chief has cancelled the order of regularisation which was passed in favour of these -2- petitioners. The petitioners were appointed from 1983 to 1987 and working in Drinking Water & Sanitation Department. Initially they were in muster-role and thereafter they were taken on work charge regular establishment. Thereafter, their regularisation in the work charge establishment has been cancelled.
3. Order dated 16.07.2015 issued by the Deputy Secretary shows that these petitioners were regularized in the work charge regular establishment. Annexure-16 at page 64 is the minutes of the meeting by which it was recommended that the petitioners may be regularised in the work charge regular establishment. The said recommendation was accepted and it was decided that those persons including the petitioners had worked for more than five years for which they may be regularised. An order was passed on 29.06.2015 from the office of the Superintending Engineer, Drinking Water & Sanitation Department, Jhumritilaiya, Koderma by which these petitioners were regularised in the regular establishment. The petitioners joined and were working. The said order reflects the name of all these 17 petitioners. Thus, it is apparent that vide order dated 29.06.2015, these petitioners were regularised. The petitioners are aggrieved by the order dated 11.04.2016 passed by the Engineer-in-Chief by which the order of regularisation of the petitioners has been cancelled and recalled.
4. Learned counsel for the petitioners submits that once the order of regularisation has already been given effect to, the -3- impugned order could not have been passed. He submits that a right had already been accrued to these petitioners by virtue of the order dated 29.06.2015 by which the services of the petitioners were regularised and the said right could not have been taken away in an arbitrary manner without following the provision of law and in an utter violation of the principal of natural justice. It is submitted that the petitioners were not even noticed before issuing the impugned order which suggests a clear violation of the principal of natural justice.
5. Learned counsel for the State submits that the services of the petitioners were regularized in violation of the rules and thus, the order of regularisation has been recalled.
6. From the writ petition, paragraph no.35, it is clear that the petitioners have taken a plea that their the right has been taken away without any notice and without giving opportunity of being heard. In reply to the said paragraph, the State in their counter-affidavit in paragraph no. 20 has not denied the said submission, but only stated about that in his statement made in paragraphs 25 to 31, that these are matter of record. This suggest that these petitioners were not heard before passing of the impugned order by which the valuable right accrued to these petitioners have been taken away.
7. Thus, I find that the impugned order has been passed in utter violation of the principal of natural justice. At least these petitioners should have been noticed and an opportunity should have been given to them before passing the impugned order. On -4- this background alone the impugned order is liable to be set aside. The impugned order thus, is in violation of principal of natural justice, and is set aside.
8. The matter is remanded to the respondent no. 5, who will pass a reasoned order after issuing the notice to these petitioners. The State will also consider the claim of these petitioners for regularisation since they were working from 1983 to 1987 more so when State has already floated the scheme for regularisation in terms of the judgment delivered by the Hon'ble Supreme Court reported in (2006) 4 SCC 1, in the case of State of Karnataka Vs. Uma Devi (3) so far as these petitioners are concerned. The State should consider the case in terms of the scheme of 2015 as the State was duty bound to consider the case of regularisation of the service of its employees who will fall in the four corners of the said scheme.
9. With the aforesaid observations and directions this writ application is disposed of.
10. It is needles to say that, if the petitioners were working they should be paid their admissible salary.
(Ananda Sen, J.) Amar/c.p-2 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3327 of 2016 Dainik Vetanbhogi Karmchari Sangh ... ... Petitioner Versus The State of Jharkhand & Ors ... ... Respondents CORAM: HON'BLE MR. JUSTICE ANANDA SEN For the Petitioner : Mr. Pravin Kumar, Advocate For the State : J.C. to S.C. (L/C) 06/Dated: 7th September, 2017 Vide order dated 26.07.2016, time was granted to the State to file counter-affidavit. Since the counter-affidavit has not been filed in this case. Again time was granted on 25.01.2017. Inspite of the order passed on 25.01.2017 counter-affidavit has not been filed. Again the matter was on board on 17.02.2017 and was adjourned. Today also when the matter is listed, it has been submitted that the counter-affidavit has not been filed in this case.
Learned counsel appearing on behalf of the State prays for three weeks time to file counter-affidavit.
Prayer is allowed subject to payment of cost of Rs. 5000/-. The amount should be deposited at JHALSA, Ranchi and the receipt of such payment should be filed before this Court along with counter-affidavit. The office will not accept the counter-affidavit, if the receipt showing payment to JHALSA has not been produced.
List this case after three weeks.
(Ananda Sen, J.) Amar/c.p-2 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3448 of 2016 Dr. Md. Tanweer Alam and Ors. ... ... Petitioners Versus The State of Jharkhand & Ors ... ... Respondents CORAM: HON'BLE MR. JUSTICE ANANDA SEN For the Petitioners : Mr. Saurabh Shekhar, Advocate For the State : J.C. to A.A.G 12/Dated: 7th September, 2017 Learned counsel for the petitioners upon his instruction from thier clients submits that the similarly situated persons of the department has already been regularized.
In view of the said submission, the petitioner is directed to bring on record the documents in support of his claim, if any.
List this case after three weeks.
(Ananda Sen, J.)
Amar/c.p-1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1884 of 2016
Dilip Kumar Bera ... ... Petitioner
Versus
The State of Jharkhand & Ors ... ... Respondents
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
For the Petitioner : Mr. Amit Kr. Tiwari, Advocate For the State : J.C. to A.G 05/Dated: 7th September, 2017 Inspite of order dated 21.06.2016 the counter-affidavit has not yet been filed.
The case was earlier listed more than one year ago. The State has not filed counter-affidavit in spite of the said order dated 21.06.2016. State prayer for further time.
By way of last indulgence, further three weeks time is granted to the State to comply the order dated 21.06.2016 subject to payment of cost of Rs. 5000/-. The amount should be deposited at JHALSA, Ranchi and the receipt of such payment should be filed before this Court along with counter- affidavit. The office will not accept the counter-affidavit, if the receipt showing payment to JHALSA has not been produced.
List this case thereafter.
(Ananda Sen, J.) Amar/c.p-1