Jharkhand High Court
The State Of Jharkhand vs Md. Ahsanullah Khan on 22 December, 2021
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.529 of 2019
1. The State of Jharkhand.
2. The Principal Secretary, Water Resources Department, Govt. of
Jharkhand, at Nepal House, P.O. & P.S. Doranda, District-Ranchi.
3. The Chief Engineer, Water Resources Department, Govt. of Jharkhand,
at Dhurwa P.O. & P.S. Dhurwa, District-Ranchi.
4. The Superintending Engineer, Water Resources Department, Govt. of
Jharkhand, Gumla Circle, Gumla, At., P.O. & P.S. Gumla, Dist.-Gumla.
5. The Executive Engineer, Water Ways Circle Gumla, Govt. of Jharkhand,
Water Ways Division Gumla, Gumla, At., P.O. & P.S.-Gumla, Dist.-
Gumla.
6. The Rehabilitation Commissioner, Govt. of Jharkhand, at Nepal House,
P.O. & P.S. Doranda, District-Ranchi.
7. The Rehabilitation Officer, Dhurwa Dam Side, At-Dhurwa, P.O. & P.S.-
Dhurwa, Disrict-Ranchi, Jharkhand.
... ... Respondents/Appellants
Versus
Md. Ahsanullah Khan, Son of Late Hamidulla Khan, Resident of
village-Katri, P.O.-Kotam, P.S.-Gumla, District-Gumla.
... ...Writ Petitioner/Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Respondents/Appellants : Mr. Sachin Kumar, AAG-II
For the Writ Petitioner/Respondent : Mr. Prem Pujari Roy, Advocate
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CAV on 20.07.2021 Pronounced/Delivered on _22/12/2021
Per Sujit Narayan Prasad, J.
[2]
1. With consent of the parties, hearing of the matter has been done through video conferencing. They have no complaint whatsoever about any audio and video quality.
2. The Chief Secretary, Government of Jharkhand, Ranchi and the Secretary, Water Resources Department, Ranchi are present in-person before this Court through video conferencing mode.
3. Heard the parties.
4. This is an appeal under Clause 10 of the Letters Patent directed against the order/judgment dated 20.12.2018 passed by learned Single Judge of this Court in W.P.(S) No.5132 of 2016 whereby and whereunder while allowing the writ petition direction has been issued upon the respondents to consider the case of the writ petitioner for employment and also to come out with an advertisement as early as possible, preferably within a period of six months from the date of receipt of a copy of the order with a further direction that the writ petitioner is free to make application as and when the advertisement is floated and the respondents shall consider for giving relaxation of age and weightage of marks as has been considered in other cases and if he comes under the zone of consideration as per prevailing policy, suitable order shall be passed, in accordance with law.
5. The brief facts of the case which require to be enumerated herein reads as hereunder:
[3]
The writ petitioner has passed intermediate examination, as such, he is otherwise eligible for appointment on Class-III/IV post.
The State Government came out with a plan to construct Katri Dam for which the land was acquired from the local people including the land of the writ petitioner. The Government framed out a policy which provides employment to one member of displaced family. The writ petitioner applied for appointment in lieu of land, however, due non-employment on regular basis during the relevant time the writ petitioner was provided with temporary employment with a recommendation for regular employment vide Letter No.1423 dated 20.09.2002.
The writ petitioner, subsequently applied for appointment on Class-III/IV post which was forwarded concerned respondent authorities but no decision was taken rather only on 23.01.2004 a letter was issued from the office of respondent No.2, The Principal Secretary, Water Resources Department, Govt. of Jharkhand directing the respondent No.3, The Chief Engineer, Water Resources Department, Govt. of Jharkhand to forward the application of the writ petitioner and other displaced people so that appropriate action may be taken in pursuance of Government policy.
The writ petitioner, however, continued to work on temporary basis but his claim for regular appointment had although forwarded before the competent authority but no decision was taken. Subsequently, the matter was placed before the respondent-[4]
authorities as would be evident from the letter No.1801 dated 03.08.2010, pursuant thereto, a letter was issued on 18.04.2011 asking certain information regarding employment of the writ petitioner which was replied vide letter No.383 dated 04.05.2011, therefore, the respondent No.3 subsequently issued a letter on 02.07.2011 informing the respondent No.2 that as there is no any panel at district level therefore names of the displaced persons is not available in district level panel. Pursuant thereto, details regarding writ petitioner had been sent by the concerned respondent authorities duly signed by Rehabilitation Officer on 07.05.2011.
The writ petitioner had regularly approached before the authorities but when no action was taken, the writ petitioner approached before this Court by filing a writ petition being W.P.(S) No.6949 of 2011 which was disposed of vide order dated 19.03.2013 whereby and whereunder the respondents were directed to consider the claim of the writ petitioner within a period of eight weeks from the date of passing of such order, in turn thereof, a reasoned order was passed on 03.07.2013. The said reasoned order was challenged before this Court by filing a writ petition being W.P.(S) No.1055 of 2014 which was disposed of vide order dated 10.11.2014 with a direction to consider the claim of the writ petitioner afresh and in the light of the aforesaid direction, respondents had issued a fresh order vide order no.2576 dated 11.05.2016 whereby the claim of the writ petitioner for appointment had again been rejected. The aforesaid order was again challenged before this Court by filing a writ petition being W.P.(S) No.5132 of [5] 2016 stating inter alia therein that three persons namely, Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary have been appointment under the category of displaced persons as has been informed to the writ petitioner under the Right to Information Act vide order letter No.1070 dated 12.12.2013.
The writ petitioner has also brought to the notice of the concerned authority about the correspondences made by the Chief Engineer dated 13.05.2015 as appended as Annexure-15 to the reply to the counter affidavit filed on 05.05.2017 wherein the fact in entirety of the case of the writ petitioner has been mentioned specifically referring therein that work is being taken from the writ petitioner for the entire year but he is being paid wages of seasonal labourer only for the period of three months.
The other persons namely, Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary have been appointed, therefore, recommendation has been made to consider the claim of the writ petitioner sympathetically.
Counter affidavit had been filed by the respondents without denying the fact about the appointment of Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary. Learned Single Judge after taking into consideration the fact that the petitioner has been discriminated because the three persons have been appointed in which two of them namely, Ram Sewak Mahto and Mithlesh Tiwary were given appointment by virtue of the order passed by this Court wherein a direction was passed to consider the representation while the third one namely, Sri Kamleshwar Rana [6] was given appointment on the basis of the recommendation made by the member of the Legislative Assembly of the State, therefore, the direction has been passed upon the respondents to consider the claim of the writ petitioner which is the subject matter of the present intra-court appeal.
6. Mr. Sachin Kumar, learned AAG-II appearing for the appellant-
State has submitted that at the moment there is no provision to appoint the displaced persons by taking them in the regular establishment in the State of Jharkhand and to consider the case of such persons. A rule has been framed out, in pursuance thereto, advertisement would be issued and the case of the writ petitioner along with other similarly situated persons would be considered.
7. It has been submitted that the learned Single Judge has erred in issuing such decision for appointment of the writ petitioner by giving priority and weightage in marks which should not have been passed in exercise of power conferred under Article 226 of the Constitution of India, therefore, such direction passed by the learned Single Judge is not in conformity with the settled position of law in exercise of power conferred under Article 226 of the Constitution of India, as such, the order impugned is not sustainable in the eye of law.
It has further been argued that even accepting that three persons, namely, Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary have been appointed but that does not confer any legal vested right upon the writ petitioner to claim appointment on that ground on the basis of the settled position of law that Article [7] 14 of the Constitution of India envisages positive equality and not negative equality.
8. Per contra, Mr. Prem Pujari Roy, learned counsel for the respondent-writ petitioner has submitted that there is no question of applicability of the rule so far as the case of the writ petitioner is concerned because the land of the writ petitioner was acquired sometime in the year 1986 and subsequently he was engaged on temporary basis in the year 2002 and since then he is working continuously.
He further submits by making reference of the letter written by the Chief Engineer dated 13.05.2015 wherein even the Chief Engineer has accepted that the writ petitioner has been subjected to exploitation since the work is being taken for the entire year but he is being paid wages only of three months that too of the seasonal labourer which is nothing but exploitation on the part of the State authority which is not permissible by the welfare State because according to him, the writ petitioner is subjected to exploitation.
He has strengthened his argument by making submission that two persons, namely, Ram Sewak Mahto and Sri Mithlesh Kr. Tiwary who are similarly situated have been appointed by virtue of an order passed by this Court wherein only order to deal with the representation has been passed while the third persons namely, Sri Kamleshwar Rana has been appointed on the basis of the discussion made by the Member of the Legislative Assembly of the State, therefore, it is a clear cut case of hostile discrimination which is not [8] permissible on the part of the State and taking into consideration this aspect of the matter the learned Single Judge has passed an order by way of command upon the State authority to come out with an advertisement wherein the writ petition was allowed to make application which shall be considered by the authority by granting relaxation in age and weightage in marks.
He further submits that the writ petitioner now is entitled for regularization because he is engaged in work since 2002 and since then almost 19 years have passed without support of an interim order, therefore, in view of the proposition laid down by the Hon'ble Apex Court in Secretary, State of Karnataka and Others vs. Uma Devi and Others, (2006) 4 SCC 1 he is entitled for regularization in service since the work is still being taken by the respondent-authorities.
9. We have heard the learned counsel for the parties and perused the documents available on record. This Court, before proceeding further to test the legality and propriety of the order, deem it fit and proper to deliberate upon the action of the State authority in order to scrutinize that the State respondents can be allowed to take different parameters against the citizens as would appear from the given fact of the case because it is the specific case of the writ petitioner that the displaced persons like Ram Sewak Mahto and Sri Mithlesh Kr. Tiwary have been appointed by virtue of the order passed by this Court and Sri Kamleshwar Rana has been appointed on the basis of the discussion made by the Member of the Legislative Assembly of the State.
[9]
10. This Court before proceeding further on this issue is clarifying the position that there cannot be an order for advertisement for regularization but for just and proper case such direction can be issued by the High Court sitting under Article 226 of the Constitution of India when the action of the State reflects arbitrariness on their part.
11. It is the admitted fact of this case that Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary have been appointed under the category of displaced persons that too without issuance of any advertisement. Ram Sewak Mahto has been appointed vide Memo No.1024 dated 03.05.2010 by virtue of an order passed by this Court in W.P.(C) No.4568 of 2004 while Sri Kamleshwar Rana has been appointed vide Memo No.1838 dated 04.06.2007 and Mithilesh Kumar Tiwary has been appointed vide Memo No.512 dated 04.03.2008. The fact about appointment of Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary is not in dispute.
12. The further fact that the writ petitioner has been engaged temporarily and is still working as Chowkidar/Gate Khalasi for the entire year but he is being paid wages for three months by treating him as a seasonal labourer. The aforesaid fact would be evident from the communication made by the Chief Engineer, Water Resources Department, Govt. of Jharkhand, Ranchi addressed to the Principal Secretary, Water Resources Department, Govt. of Jharkhand, Ranchi. For ready reference, entire content of the aforesaid letter is being reproduced hereinbelow: [10]
"eq[; vfHk;ark dk dk;kZy;] ty lalk/ku foHkkx] jk¡phA i=kad&1@nk0eq0&1&407@14&779] @jk¡ph fnukad&13@05@15 izs"kd] eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡phA lsok esa] ljdkj ds iz/kku lfpo] ty lalk/ku foHkkx] jk¡phA fo"k;% & drjh tyk'k; ;kstuk ls foLFkkfir gksus ds vk/kkj ij ljdkjh lsok esa fu;fer fu;qfDr gsrq ekuuh; mPp U;k;ky; }kjk ;kfpdkokn la[;k MCyq0 ih0 ,l0 la[;k&1055@2014 fnukad&10&12&2014 ds ikfjr U;k; fu.kZ; ds vuqikyu esa eks0 ,glkuqYykg [kkW] xzke&'kh'kh] iks0&dksVke] ftyk&xqeyk dks r`rh;@prqFkZ oxZ ds in ij fu;qfDr ds laca/k esaA izlax% & ¼1½ foHkkxh; i=kad&14@eqd0&01&25@2014&456 fnukad&27@01@2014 ¼2½ eks0 ,glkuqYykg [kkW] xzke&'kh'kh] iks0&dksVke] ftyk&xqeyk dk vH;kosnu la[;k&'kqU; fnukad&22-01-2015A egk'k;] mi;qZDr fo"k;d Hkonh; izklafxd i=&1 ds vkyksd esa izklafxd i=&2 }kjk eks0 ,glkuqYykg [kkW] xzke&'kh'kh] iks0&dksVke] ftyk&xqeyk ds fo'k;kafdr okn esa ikfjr vkns'k ds vuqikyu fufer vius vkosnu esa fofHkUu rF;ksa dk mYys[k djrs gq, foLFkkfir ds vk/kkj ij ljdkjh lsok esa fu;fer fu;qfDr gsrq vkosnu lefiZr fd;k gSA bl dk;kZy; eas la/kkfjr vfHkys[kksa ,oa ekuuh; mPp U;k;ky; }kjk le;≤ ij ikfjr vkns'kksa ds vkyksd esa eks0 ,glkuqYykg [kkW vkosnd ds foLFkkfir ds vk/kkj ij ljdkjh lsok esa fu;fer fu;qfDr ds laca/k esa oLrq fLFkfr fuEuor gS% & ¼1½ iquokZl inkf/kdkjh e/;e flapkbZ ifj;kstuk] jk¡ph ds i=kad&67 fnukad&25-02- 2010 ¼Nk;k izfr layXu½ }kjk izkIr foLFkkfirksa dh lwph ds voyksdu ls Li"V gksxk fd vkosnd Jh ,glkuqYykg xqeyk ftyk vUrxZr drjh tyk'k; ;kstuk ds foLFkkfir gSaA bl ;kstuk dk fuekZ.k dk;Z o'kZ 1986 esa 'kq: fd;k x;k ,oa vkosnd dk [ksrh ;ksX; tehu dqy jdck 6-945 ,dM+ dk v/khxzg.k ljdkj }kjk fd;k x;k ftldk okn la[;k&32@88&89] 23@88&89] 32@88&89 ,oa 4@86&87 gSA mDr tehu dk vf/kxzg.k ljdkjh vf/klwpuk la[;k&4@86&87 lhlh fnukad&21-10-1986 vf/klwpuk la[;k&32@88&89 lhlh fnukad 04-10-1988 ,o 1@88&89 fnukad 16-10-1989 }kjk vf/kxzfgr fd;k x;kA ¼2½ mi;qZDr dafMdk&1 of.kZr tehu fo'k;d ;kstuk esa vf/kxzg.k fd;s tkus ds QyLo:i vkosnd eks0 [kkW ds ikl thfodk dks lk/kku "ks'k ugha gksus ds dkj.k buds }kjk foLFkkiu ds vk/kkj ty lalk/ku foHkkx ds v/khu r`rh; oxZ ,oa prqFkZ oxZ ds in ij fu;kstu gsrq o'kZ 2002 ls foHkkxh; inkf/kdkjh;ksa ds le{k vkosnu lefiZr fd;k tkrk [11] jgk gSA ijUrq foHkkxh; Lrj ij buds fu;qfDr ds laca/k esa dksbZ Bksl fu.kZ; ugha fy;s tkus ds dkj.k vkosnd }kjk ekuuh; mPp U;k;ky;] >kj[k.M jk¡ph ds le{k ;kfpdk la[;k&6949@2011 nk;j fd;k x;kA blh okn ds Øe esa iqu% vkosnd }kjk o"kZ&2013 esa vkbZ0 ,0 la[;k&1134@2013 nk;j fd;k x;kA ¼3½ mi;qZDr dafMdk&2 esa mYysf[kr okn la[;k&6949@2011 ,oa vkbZ0 ,0 la[;k&1134@2013 fnukad&19-03-2013 dks ekuuh; mPp U;k;ky; }kjk fuEukafdr vkns"k ikfjr fd;k x;k% & "Considering the said submissions this writ petition is desposed of giving liberty to the petitioner to file fresh representations regarding their claims before the secretary Water Resources Department, Government of Jharkhand. On receipt of such representation, the said respondent shall consider the same and pass appropriate reasoned order within two months from date of receipt of representation." ¼ikfjr fu.kZ; dh Nk;kizfr layXuA½ ¼4½ ekuuh; mPp U;k;ky; }kjk mijksDr dafMdk&3 esa fn;s x;s vkns"k ds vkyksd esa lfpo ty lalk/ku foHkkx] >kj[k.M ljdkj jk¡ph ds i=kad&456 fnuakd&03-07-2013 ds }kjk fuEukafdr reasoned order ikfjr fd;k x;k% & ^^;g fd & oknh foLFkkfir O;fDr gSa ,oa ;s iquokZl uhfr ds vUrxZr fu;qfDr esa izkFkfedrk izkIr djus dk vf/kdkj j[krs gSA iqujhf{kr iquokZl uhfr 2003 ,oa 2012 dh dafMdk 9 ¼Nk;k izfr layXu½ esa foLFkkfirksa dks ty lalk/ku foHkkx >kj[k.M ds vUrxZr oxZ 3 ,oa 4 ds inksa ij fu;qfDr esa NwV dks izko/kku gSA mDr ds vkyksd esa ty lalk/ku foHkkx] >kj[k.M] jk¡ph ds vUrxZr oxZ&3 ,oa 4 ds inksa ij fu;qfDr gsrq foKkiu izdkf"kr fd;s tkus ij vxj os vkosnu nsrs gSa rks bUgsa iquokZl uhfr esa fufgr izko/kku ds rgr izkFkfedrk nh tk;xhA^^ ¼i=kad&456 fnukad&03-07-2013 dh Nk;k izfr layXuA½ ¼5½ rnksijkUr vkosnd }kjk o'kZ 2014 esa mi;qZDr dafMdk&4 esa mYysf[kr lfpo] ty lalk/ku foHkkx] >kj[k.M] jk¡ph }kjk ikfjr fd;s x;s reasoned order dks fujLr ¼Quash½ djus gsrq ,oa iqu% fu;kstu djus gsrq MCyq0 ih0 ,l0 la[;k&1055@2014 ekuuh; mPp U;k;ky; ds le{k ;kfpdk nk;j fd;k x;kA mDr okn la[;k&1055@14 esa fnukad&2@10-11-2014 esa ekuuh; mPp U;k;ky; }kjk fuEukafdr vkns"k ikfjr fd;k x;kA "Be that as it may, it would only be in the fitness of things that when cases of such displaced persons are to be considered for appointment under the Rehabilitation policy, equal consideration be conferred to those, who are similarly placed. In view of the aforesaid legal position, the stand of the respondent-Secretary, Water Resources Department cannot be said to suffer from any flaw. The respondents are however expected to undertake an exercise within a reasonable time in relation to those who are eligible under the Rehabilitation policy to be considered for such [12] appointment and as per the preference, if any, accorded in terms of the Relief and Rehabilitation Policy of the respondent Government."
¼ikfjr fu.kZ; dh Nk;kizfr layXuA½ ¼6½ mi;qZDr vkns"kksa ds voyksdu ls ;g Li'V gksrk gS fd dafMdk&3 esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k ds vuqikyu ds dafMdk&4 esa lfpo] ty lalk/ku foHkkx] >kj[k.M] jk¡ph }kjk fuxZr reasoned order dks dafMdk&5 esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns"kkuqlkj Quash ugha fd;k x;k gS] cfYd mDr reasoned order dks cjdkj j[krs gq, ^^ekuuh; mPp U;k;ky; }kjk foLFkkfir ds vk/kkj ij fu;qfDr dh izfØ;k dks mfpr le; ¼Reasonable Time½ ds vUnj iwjk dj ysus vkns"k ikfjr fd;k x;k gSA^^ ¼7½ mijksDr rF;ksa ds vkyksd esa voxr djkuk gS fd ty lalk/ku foHkkx] >kj[k.M] jk¡ph ds }kjk flapkbZ foHkkx ds vUrZxr fofHkUu fjDr inksa dks Hkjus gsrq foKkiu izdkf"kr fd;k x;k Fkk] ¼Nk;k izfr layXu½ ftlesa eks0 [kkW ds }kjk foLFkkfir ds vk/kkj ij ftyk fu;kstuky; dk;kZy; esa vkosnu lefiZr fd;k x;k] ijUrq buds LoPN vkosnu ij fopkj ugha fd;k x;kA mDr foKkiu ds rgr y?kq flapkbZ foHkkx esa dk;Zjr nSfud osruHkksxh etnwjksa dh lsok dks fu;fer cgkyh fd;k x;kA ¼8½ vkosnd }kjk bl dk;kZy; ,oa vU; ifj{ks=kUrxZr foLFkkfir ds vk/kkj ij ^^fcuk foKkiu^^ ds fu;qfDr ls lacaf/kr fuEukafdr lk{; izLrqr fd;k x;k gS% & ¼d½ Jh jke lsod egrks@vuqlsod@tyiFk ize.My] jk¡ph okn la[;k&MCyw0 ih0 ¼lh0½&4568@04 esa fnukad&03-07-2004 dks ekuuh; mPp U;k;ky; }kjk ikfjr vkns"k ds vkyksd esa eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡ph dks vkns"k Kkikad&1024 fnukad&03-05-2010 dh Nk;k izfr layXuA ¼[k½ Jh deys"oj jk.kk@vuqlsod@tyiFk ize.My] cjghA eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡ph ds vkns"k Kkikad&1838 fnukad&04-06-2007 dh Nk;k izfr layXuA ¼x½ Jh fefFkys"k dqekj frokjh@r`rh; oxZ@y?kq flapkbZ ize.My] jk¡ph ¼ty lalk/ku foHkkx] ds i=kad&1070 fnukad&12-12-2013 dh Nk;k izfr layXu½A mijksDr ds vk/kkj ij Jh ,glkuqYykg [kkW dk Hkh foLFkkfir ds vk/kkj ij ljdkjh fu;kstu vf/kdkj vuqekU; izrhr gksrk gS ¼9½ ;g fd & orZeku le; esa orZeku le; esa Jh [kkW ds tUe frfFk&07-05-1972 ds vuqlkj ;s yxHkx 43 o'kksaZ ds gks x;s gSaA buds mij buds ifjokj ds lHkh lnL; ;Fkk ,d iRuh rhu yM+ds ,oa cgu ds Hkj.k iks'k.k dk Hkkj gSA ¼10½ ;g fd & ;s ekSleh etnwj ds :i esa mDr ;kstuk esa "kq: ls gh dk;Z djrs vk jgs gSaA ¼11½ rRdkyhu eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡ph ds i=kad&3421 fnukad&11-11-2003 ¼Nk;k izfr layXu½ ds voyksdu ls Li'V gksrk gS fd eks0 [kkW }kjk drjh ugj xsV ,oa MSe lqj{kk gsrq pkSdhnkj@xsV [kyklh ds :i esa lkyksHkj dke fy;k [13] tkrk gSA tcfd bUgsa ekSleh etnwj ds :i esa ek= rhu ekg dh etnwjh Hkqxrku fd;k tkrk gSA ¼12½ ;g fd & iquokZl inkf/kdkjh e/;e flapkbZ ifj;kstuk] jk¡ph ds i=kad&67 fnukad&25-02-2010 ¼Nk;k izfr layXu½ }kjk lefiZr izfrosnu ds vuqlkj eks0 ,glkuqYykg [kkW drjh tyk"k; ;kstuk ds foLFkkfir gSa] ,oa foLFkkiu ds vk/kkj ij ukSdjh ikus dk gd curk gSA iquokZl uhfr esa fufgr izko/kku ds vkyksd esa foLFkkfirksa dks ljdkjh lsok esa fu;ekuqlkj ukSdjh nsus dk izko/kku gSA ¼13½ ;g fd & ifj{ks=kUrxZr r`rh;@prqZFk oxhZ; dfeZ;ksa dk in fjDr gSA ¼14½ ;g fd & rRdkyhu v/kh{k.k vfHk;ark] tyiFk vapy xqeyk ds i=kad&1423 fnukad&20-09-2002 ,oa dk;Zikyd vfHk;ark] tyiFk ize.My] xqeyk ds i=kad&1084 fnukad&12-08-2002 ¼Nk;k izfr layXu½ }kjk bUgsa pkSdhnkj ds :i eas fu;qfDr djus dh vuq"kalk dh xbZ gSA ¼15½ ;g fd & mi;qZDr dafMdk&12 esa vafdr vuq"kalk ds vkyksd esa rRdkyhu eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡ph ds i=kad&3421 fnukad&11-11-2003 ¼Nk;k izfr layXu½ }kjk eks0 [kkW dh fu;qfDr ds laca/k esa oLr qfLFkfr ls foHkkx dks iwoZ esa gh voxr djk fn;k x;k gSA ¼16½ ;g fd & fo'k;d lanHkZ esa ty lalk/ku foHkkx] jk¡ph ds i=kad&4494 fnukad&16-12-2010 }kjk 4¼pkj½ fcUnqvksa ij dh i`PNkvksa dk vuqikyu izfrosnu iwoZ esa gh rRdkyhu eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡ph ds i=kad&1329 fnukad&02-07-2011 ¼vuqyXud lfgr Nk;k izfr layXu½ }kjk foHkkx Hkst nh xbZ gSA ftlesa v/kh{k.k vfHk;ark tyiFk vapy] xqeyk ds i=kad&383 fnukad&04-05-2011 }kjk eks0 [kkW dh fu;qfDr dh vuq"kalk dh xbZ gSA vr% mijksDr of.kZr rF;ksa ds vkyksd esa ty lalk/ku foHkkxh; i=kad&456 fnukad&27-01-2005 }kjk fo'k;kafdr ekeys esa eks0 ,glkuqYykg [kkW ds nkf;Roksa ds fuoZgu ,oa ikfjokfjd leL;kvksa dks ns[krs gq, foLFkkfir ds vk/kkj ij fu;qfDr gsrq ykSVkbZ xbZ ewy vfHkys[kksa dks iqu% blds lkFk layXu Hkstrs gq, vuqjks/k gS fd buds fu;qfDr ds laca/k esa lgkuqHkwfriwoZd fopkj djus dh d`ik dh tk;A vuqyXud&;Fkkof.kZrA fo"oklHkktu] eq[; vfHk;ark] ty lalk/ku foHkkx] jk¡phA"
13. It would be evident from the aforesaid communication that the writ petitioner is approaching this Court time and again, first in the year 2011 by filing a writ petition being W.P.(S) No.6949 of 2011, again vide W.P.(S) No.1055 of 2014 wherein the reasoned order dated 03.07.2013 passed in pursuance to the order passed in W.P.(S) No.6949 of 2011 has been questioned, his claim was rejected again [14] and by way of third writ petition being W.P.(S) No.5132 of 2016 has been filed which is the subject matter of the instant intra-court appeal.
14. It is evident from the supplementary affidavit filed on behalf of the appellants dated 04.02.2020 that the appellants have failed to differentiate the case of the writ petitioner pertaining to appointment of Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary rather they have admitted that the appointment of Ram Sewak Mahto and Sri Mithlesh Kr. Tiwary are in terms of the order passed by this Court while the appointment of Sri Kamleshwar Rana is in terms of the assurance No.231/06 and 228/06 of the Jharkhand Legislative Assembly under earlier policy of the undivided State of Bihar vide Memo No.796 dated 21.02.1981.
15. It further requires to refer herein that the State appellant has taken the plea of the revised rehabilitation policy of the year 2003 which was again revised in the year 2012 wherein there is a provision under clause 9.0 for giving preference/relaxation in appointment to Class-III/IV post, therefore, the decision according to the State appellant has been taken that the writ petitioner's case can also be considered in the light of the aforesaid policy decision but the question which requires to be answered by this Court is that when the appointment of persons namely, Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary have beenmade in pursuance to the order passed by this Court and the assurance of the Vidhan Sabha of the State can the claim of the writ petitioner be [15] denied on the ground as has been agitated by the State appellant that there cannot be any negative appointment.
16. This Court, first deem it and proper to discuss about the principle of Article 14 of the Constitution which envisages positive equality. There is no denial about the fact that there cannot be any negative equality since Article 14 always envisages positive equality. The meaning of negative equality arises when the right does not exist, as such, cannot be claimed.
17. This Court has proceeded to examine the issue as to whether on the given facts a right which is being claimed by the writ petitioner can be construed to be negative equality. The admitted fact herein is that the three persons namely, Ram Sewak Mahto, Sri Kamleshwar Rana and Sri Mithlesh Kr. Tiwary have been appointed in terms of the order passed by this Court and on the assurance of the Legislative Assembly of the State.
18. The moment this Court in exercise of power conferred under Article 226 of the Constitution of India passes an order directing to consider the claim of one or the other persons seeking appointment on the ground of displaced persons basis upon which the persons have been appointed and if on that basis the writ petitioner is claiming his appointment, the case of the writ petitioner cannot be construed to come under the fold of negative equality because if the principle of negative equality is being agitated against the writ petitioner the question would be why not against the order passed in favour of Ram Sewak Mahto and Mithilesh Kumar Tiwary rather [16] the State-appellant has accepted the order passed by this Court under Article 226 of the Constitution of India.
19. It is not in dispute that the High Court being a Court of record and if any order is being passed in exercise of power conferred under Article 226 of the Constitution of India, i.e., under its original jurisdiction, it will have binding precedence unless reversed by Higher Forum and if on the basis of the binding precedence, any parity is being claimed for any other similarly situated persons, it will not come under the fold of negative equality rather a right will be said to be accrued in favour of the other similarly situated persons, as such, there is no question, in the given facts of this case, that if the writ petitioner is claiming appointment on the basis of parity with Ram Sewak Mahto and Mithilesh Kumar Tiwary who have got appointment in terms of the order passed by this Court, the same will come under negative equality, as such, the ground of negative equality is being taken by the State on the basis of the Rule formulated in the year 2021 which provides to give priority to the displaced persons like the writ petitioner.
20. It is the further admitted fact that the rule has been formulated in the year 2021, i.e., during the pendency of the writ petition. The question would be that whether the said rule will still apply to the land acquired sometime in the year 1980-86. The answer of this Court would certainly be that the act will not be applicable with respect to the acquisition of the land by virtue of which the persons have become displaced in the year 1986 rather the policy decision taken by the State authority under the provision of Article 166 of [17] the Constitution of India by way of executive instruction will be applicable if such policy decision has been notified during the relevant time.
21. The State appellant has relied upon a resolution to demonstrate the fact that even as per the resolution the writ petitioner is not entitled for consideration of his appointment on the ground of displaced persons but we after going through the aforesaid resolution have found that all the resolutions are subsequent to the acquisition of the land and as such the same would not be applicable in the facts of the instant case since the land in question of the writ petitioner has been acquired sometime in the year 1986 and it is settled that any resolution cannot be given its retrospective application. However, one resolution has been annexed in the supplementary affidavit dated 25.03.2021 which was issued on 21.02.1981 which provides for appointment of displaced persons as would be evident from the condition contained therein as contained condition No.2(Cha) which provides that in the Chotanagpur and Santhal Pargana all vacancy pertaining to Class-IV should be filled up by giving priority to the displaced persons and so far as the Class-III post are concerned, 50% of the vacancies would be filled up from amongst the displaced persons.
22. This Court, therefore, is of the view that the Circular dated 21.02.1981 will be applicable in the facts of the given case because the land of the writ petitioner admittedly has been acquired sometime in the year 1986, the day when the resolution dated 21.02.1981 was in vogue, as such, it is incorrect on the part of the [18] State authority to take the plea of negative equality since the writ petitioner has got vested right for consideration of his case for appointment under the Circular dated 21.02.1981.
23. It is the further admitted case of the State-appellant that one person namely, Kamleshwar Rana has been appointed on the basis of the assurance given in the Legislative Assembly of the State. The question is that when a candidate can be appointed on the basis of the assurance given in the Legislative Assembly which has got no power to make such assurance even though the State-appellant has appointed Kamleshwar Rana denying the claim of the writ petitioner then why the case of the writ petitioner will be denied for regular appointment. It is not the case herein that the writ petitioner has never been appointed rather he has been appointed but on temporary basis which suggest and clarifies the position that the State Government has accepted the claim of the writ petitioner now the sole question would be that once the State Government has accepted the claim of the writ petitioner for appointment on regular basis, can he be provided with appointment on temporary basis?
Therefore, this Court after taking into consideration the fact that the writ petitioner has been provided appointment on temporary basis which means that the provision of Circular issued in the year 1981 has been given effect to but very surprisingly the said circular does not say about temporary appointment but in flagrant violation of the provision of the Circular 1981 the writ petitioner has been appointed on temporary basis which is nothing but an arbitrary exercise of the respondent authorities that too when [19] other three persons have been provided appointment on the ground of displacement.
24. This Court is very much surprised that how such plea can be agitated by the State-appellant while considering the case of the writ petitioner by taking the point of negative equality will not be arbitrary on the part of the State? Will the State be permitted to raise such issue while taking decision on the basis of the assurance given in the Legislative Assembly and acting upon the same, appointment has been given, will it not be a hostile discrimination on the part of the State? These are the moot questions which the State has not answered on the specific query made by this Court by passing a judicial order which would be evident from the order dated 09.03.2021. For ready reference, the said order is being reproduced hereinbelow:
"With consent of the parties, hearing of this matter has been done through video conferencing. They have no complaint about any audio and visual quality.
The issue of discrimination raised by the writ petition regarding appointment of three persons, viz., Ram Sewak Mahto, Kamleshwar Rana and Mithilesh Kumar Tiwary, who were also displaced persons and had been given appointment but the writ petitioner's case was chosen to be challenged in Letters Patent Appeal, did not die down in view of the orders passed earlier because we have already recorded that the issues are alive even though the Rules are being framed or not or the draft is ready or not and we had directed the respondents-State to answer the issue of discrimination as their answer in the supplementary affidavit was rejected as being not satisfactory. Another opportunity was granted but it doesnot appear that the said issue has been answered, rather in the latest supplementary affidavit, that issue very cleverly is being tried to be bypasses taking shelter of another order in which direction was given to frame Rules and [20] assurance was given by the Secretary that the Rules will be framed, but in view of the our directions in the order dated 08.06.2020, the State authorities were obliged to answer the issue of discrimination because they are the appellants in this case.
Hence, we are granting another two weeks' time to answer this issue after taking notice of our observations and directions contained in the order dated 08.06.2020 and also the letter of the Chief Engineer which has been brought on record by the writ petitioner in the Writ proceedings as Annexure-15 as well as the same thing having been noticed by the learned Single Judge in page 3 of the impugned order as the State has not answered this issue thought it has filed appeal assailing the order of the learned Single Judge.
In our view, flouting our directions to come out with the specific affidavit on the point of discrimination and avoiding the same prima facie appears to us in contumacious in nature but still we are grating another opportunity to the State.
Put up this matter on 23.03.2021."
25. At the time of the hearing the Chief Secretary of the State and the Principal Secretary, Water Resources Department, Govt. of Jharkhand had appeared in pursuance to the order dated 06.07.2021 for answering the query but no affidavit has been filed and even they have not been able to satisfy this Court orally. For ready reference, the order dated 06.07.2021 is being reproduced hereinbelow:
"Heard the parties.
A glaring thing has come on the record of this proceeding during the course of hearing, which is evident from the pleadings and the submissions made before us as also the letter written by the Chief Engineer dated 13.05.2015 to the then Principal Secretary, Water Resources Department, Government of Jharkhand, Ranchi that there is a clear case of discrimination with regard to the writ petitioner vis-à-vis three other persons, who were given employment by the State without any [21] advertisement or following the other procedure, only on the basis of the fact that they were also displaced persons due to certain project of the State. However, there is no answer so far as the writ petitioner is concerned but in a repetitive manner it is being argued on behalf of the State that the State is not bound to give employment to every displaced person even though the schemes and rules are there. Still the State has miserably failed to show as to why three persons namely, Sri Ram Sewak Mahto, Kamleshwar Rana and Mithilesh Kumar Tiwary, were given appointment without any advertisement whereas on application of the writ petitioner pursuant to certain advertisement, even no weightage as per the scheme was given to him for appointment. It appears to be an admitted position that two persons out of three were admittedly considered and appointment were given to them in view of the direction of a Bench of this Court. The State did not choose to assail that direction rather it complied but in the case of the writ petitioner they have chosen to file this appeal which is a clear cut discrimination in the approach of the State Authority. The third person was given appointment on the basis of recommendation by some representative of people in the Legislative Assembly. The State has miserably failed to justify such type of appointment but on the self same ground they have chosen not to give appointment to the writ petitioner and challenged the order passed by the learned Single Bench.
Second startling thing which emanates out of the letter written by the Chief Engineer is that the writ petitioner is working in the same project as a seasonal labourer since the beginning. By giving reference to the letter of the Chief Engineer, Water Resources Department vide letter no. 3421 dated 11.11.2003, it is stated that the writ petitioner was working as Chowkidar/Gate Khalasi for the entire year for protection of Katri Nahar Gate and dam but he was being given emoluments of mausami mazdoor for only three months. This is an eye opening case of exploitation by the State of a citizen. This is admission on the part of the State because it is State's document though it has been filed on behalf of the writ petitioner. The State has not denied this letter saying that it is a fake one but how they have responded to it in the counter affidavit is that there is no proof of such things. The question arises when the Chief Engineer of the Department is writing letter to the Principal Secretary, Water Resources Department, Ranchi, where is the question of any fake thing being [22] written in between and if that was so, why no action was taken against the Chief Engineer and why the letter of the Chief Engineer was not replied by the Principal Secretary asking uncomfortable questions from him. Now taking a stand in the counter affidavit after passing of several years may be easier or convenient but cannot be acceptable in a Court of Law.
In view of the above peculiar facts and circumstances, we would direct the Chief Secretary, Government of Jharkhand, Ranchi as well as the Principal Secretary, Water Resources Department, Government of Jharkhand, Ranchi to appear before us through video conferencing mode on the next date of hearing and explain how such type of action can be taken by the State fully discriminating and exploiting a citizen.
Put up this matter on 20.07.2021."
26. This Court has also put a query on the State-appellant that what would be the effect and implication of the judgment pronounced by that time in Secretary, State of Karnataka and Others vs. Uma Devi and Others (supra) wherein at paragraph 53 it has been laid down by way of exception to regularize the service of such employees who have not been protected by any interim order and worked continuously for a period of 10 years and the service of such employees is required by the State. For ready reference, paragraph 53 of the said judgment is being quoted hereinbelow:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 :
(1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the [23] principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
However, the State respondent has filed an affidavit but without assigning any reason averment has been made that the judgment rendered by Hon'ble Apex Court in Secretary, State of Karnataka and Others vs. Uma Devi and Others (supra) is not applicable. Why it is not applicable in the given facts of the case has not been stated in the affidavit.
27. Admittedly, the writ petitioner is working since 2002 and is still working, this fact has not been denied by the State-appellant, meaning thereby, service of the writ petitioner is still required by the State-appellant even though the writ petitioner applied in terms of the advertisement but he has not been appointed and his case has been recommended time and again but he has not been provided with regular appointment.
28. It is further required to refer herein that since the State of Jharkhand has been made on 15.11.2000, therefore, the ratio which has been [24] laid down by the Hon'ble Apex Court in Secretary, State of Karnataka and Others vs. Uma Devi and Others (supra) will count the period of ten years which was up to the date of pronouncement of the judgment, i.e., 10.04.2006 which subsequently has been been clarified by the Hon'ble Apex Court in Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others, (2018) 8 SCC 238 wherein it has been laid down that the period of ten years so far as the State of Jharkhand is concerned, would be counted from 15.11.2000 and if the ratio laid down by the Hon'ble Apex Court in Secretary, State of Karnataka and Others vs. Uma Devi and Others (supra) coupled with the observation made in Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others (supra), the case of the writ petitioner ought to have been considered for regularization taking into consideration the continuous service from the year 2002 since he has already completed ten years of service sometime in the year 2012, however, a point has been raised that the writ petitioner was not in continuous service but such fact cannot be accepted in view of the specific correspondence made by the Chief Engineer in the letter dated 13.05.2015 addressed to the Principal Secretary, Water Resources Department, Govt. of Jharkhand wherein it has specifically been stated that the writ petitioner is working during the entire year but he is being paid wages only of three months by treating him as a seasonal labourer. In this regard, no document has been brought on record before this Court rebutting the said statement and also no statement whatsoever has been made by the State appellant in denial of such statement, therefore, we are having no option but to accept [25] the statement of the Chief Engineer as contained in letter dated 13.05.2015 who is the highest technical authority in the department just below the Engineer-in-Chief of the department, as such, we have no hesitation in coming to the conclusion that the writ petitioner is working regularly since 2002, i.e., from the date of his appointment and he is still working, this fact has not been disputed by the State-appellant.
29. This Court, after considering the fact in entirety as aforesaid, is of the view that the State-appellant has not acted in fairness rather the State-appellant has acted as a private money lender by taking work from the writ petitioner for entire year and paying wages only of three months treating him as a seasonal labourer even though his work is required in the department.
This Court is further of the considered view that since we are living in the welfare State and admittedly the land has been acquired sometime in the year 1986 during the relevant time Circular of 1981 was prevalent which contains a provision for appointment on the ground of displacement, as referred hereinabove, basis upon which the writ petitioner has been offered with appointment but on temporary basis while other similarly situated persons have been appointed on regular basis which is nothing but a clear cut case of hostile discrimination based upon unreasonable classification as has been laid down by the Hon'ble Apex Court defining the concept of hostile discrimination in State of Jammu & Kashmir vs. Triloki Nath Khosa and Ors., (1974) 1 [26] SCC 19 wherein the Court [Chandrachud, J. (as he then was)] in para 20 succinctly held thus :
""The challenge, at best, reflects the respondent's opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld."
It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was for the respondents to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to equality, the Court (in paras 29 & 30) held thus :
"But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class."
Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [(1981) 4 SCC 335], which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations was challenged, which provides for retiring age of an Air-Hostess. The Court (in paragraph39) summarized thus :
[27]
"39. Thus, from a detailed analysis and close examination of the eases of this Court starting from 1952 till today, the following propositions emerge :-
(1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 can- not be attracted.
(2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely out of the way.
(3) Article 14 certainly applies where equals are treated differently without any reasonable basis.
(4) Where equals and unequals are treated differently, Article 14 would have no application.
(5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity.
(6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:-
(a) the nature, the mode and the manner of recruitment of a particular category from the very start,
(b) the classifications of the particular category.
(c) the terms and conditions of service of the members of the category, [28]
(d) the nature and character of the posts and promotional avenues,
(e) the special attributes that the particular category possess which are not to be found in other classes, and the like.""
In view of the above proposition the case of the writ petitioner in the given facts of the case will certainly come under the fold of hostile discrimination, therefore, there is a clear cut violation of Article 14 of the Constitution of India since herein the writ petitioner has been treated differently without any reasonable basis.
Further, the case of the writ petitioner cannot be construed to come under the fold of negative equality as has been dealt with by us hereinabove that the negative equality means that the right which is being claimed is having no foundation but herein the other two persons, namely, Ram Sewak Mahto and Mithilesh Kumar Tiwary have been given appointment on the basis of the order passed by this Court in exercise of power conferred under Article 226 of the Constitution of India wherein although no specific command for appointment has been passed upon the respondent authorities rather merely a direction was to consider the case if they will submit representation and by considering such representation they have been offered with regular appointment while the third person, namely, Sri Kamleshwar Rana has been appointed merely on the basis of the question raised by the Member of the Legislative Assembly on which assurance has been given in the Legislative Assembly. Therefore, according to our considered view, the moment the State-appellant has accepted the order passed [29] by this Court under Article 226 of the Constitution of India it binds the State-appellant to follow the case of other similarly situated persons as per the proposition of law laid down by the Hon'ble Apex Court in State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347 wherein it has been laid down that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently. The aforesaid judgment rendered by the Hon'ble Apex Court has been passed by putting reliance upon the judgment passed in State of Karnataka v. C. Lalitha, (2006) 2 SCC 747. Paragraphs 13 and 22.1 of the aforesaid judgment are being reproduced hereinbelow:
"13. In State of Karnataka v. C. Lalitha [State of Karnataka v. C. Lalitha, (2006) 2 SCC 747 : 2006 SCC (L&S) 447] , which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment: (SCC p. 756, para 29) "29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."[30]
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.'' In the aforesaid judgment, however the discussion has been made with respect to well-recognized exceptions in the form of laches and delays as well as acquiescence but herein the aforesaid well-recognized exception is not applicable since the writ petitioner is approaching before the Court right from the beginning and the writ petition which is the subject matter of the intra-court appeal is third in continuation. Furthermore, this issue has also not been raised either before the Writ Court or before this Court.
30. Herein, the respondent in highly arbitrary and illegal manner have not followed the order passed by this Court under Article 226 of the Constitution of India which has attained its finality being not questioned before the higher forum rather acting upon this appointment has already been provided in favour of the writ petitioners of those cases, therefore, there is no question of applicability of negative equality. Further the question of negative equality will not come not play merely because the Rule has been formulated subsequently in the year 2021. This Court has also come to conclusive finding that the Rule which has come in the year 2021 will have no application in the case of acquisition of land way back in the year 1986 rather the circular prevalent on the date of [31] acquisition of land will be application, i.e., the Circular dated 21.02.1981, which provides for providing appointment on the ground of displacement, therefore, it is not that there is no government resolution to provide appointment on the ground of acquisition of land in consequence of which persons have become displaced. Hence, by virtue of the said resolution a right has been accrued to the writ petitioner for consideration of this appointment and is the reason the writ petitioner has been provided with appointment but on temporary basis.
Further, there cannot be any temporary appointment on the ground of acquisition of land in consequence of which the persons have become displaced or on compassionate ground on account of death of the bread earner under the scheme rather appointment under these conditions means to provide appointment on regular basis but the State-appellant has provided appointment to the writ petitioner on temporary basis in the year 2002 to which post he is still continuing and is being treated as a seasonal worker and paid wages only of three months while the work is being taken for the entire year.
31. We have gone through the judgment rendered by the learned Single Judge and found therefrom that the consideration has been made with respect to the appointment of three persons out of which two persons, namely, Ram Sewak Mahto and Mithilesh Kumar Tiwary have been appointed on the basis of the order passed by this Court and one Sri Kamleshwar Rana has been appointed on the basis of the assurance of the Legislative Assembly of the State and further [32] consideration has been made that the land of the writ petitioner has been acquired sometime in the year 1986 and his case has been considered but he has not been provided appointment on regular basis rather on temporary basis to which he is still continuing. Taking into consideration this aspect of the matter, if the order has been passed to come out with the advertisement for appointment of writ petitioner by giving priority in age and relaxation by granting weightage in marks the same cannot be said to suffer from any error. It cannot be said to be excess in jurisdiction by issuing a direction upon the State-appellant under Article 226 of the Constitution of India to come out with an advertisement rather according to our considered view, since the Writ Court under Article 226 of the Constitution of India is the Court of equity and if in exceptional circumstances a Writ Court considers it just and proper case by issuing a command upon the State to come out with an advertisement, the same cannot be said to be excess in jurisdiction.
32. Herein also, in the given facts as discusses hereinabove, it is a case of exception in which the land of the writ petitioner has been acquired way back in the year 1986 but he has been offered temporary appointment while other similarly situated persons like Ram Sewak Mahto and Mithilesh Kumar Tiwary have been appointed on the basis of the order passed by this Court by invoking the jurisdiction of this Court sitting under Article 226 of the Constitution of India and one Sri Kamleshwar Rana has been appointed on the basis of the assurance of Legislative Assembly of [33] the State, this Court cannot be a mute expectator in exercising the power conferred under Article 226 of the Constitution of India.
33. If the writ petitioner has been subjected to hostile discrimination that too without any reason since time and again this Court has passed judicial orders but no reason has been explained for differentiating the case of Ram Sewak Mahto, Sri Kamleshwar Rana and Mithilesh Kumar Tiwary with the case of the writ petitioner.
34. In view thereof, this Court in the entirety of the facts and circumstances, is of the view that the order passed by the learned Single Judge suffers from no infirmity, accordingly, the instant appeal fails and is dismissed.
35. Pending interlocutory application(s), if any, also stands disposed of.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saurabh /.A.F.R.