Jharkhand High Court
Sanjay Sah vs State Of Jharkhand Through Its Chief ... on 22 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6839 of 2023
1. Sanjay Sah, age- 44 years, son of Ram Lagan Sah, resident of
Village-Rangamatia, Sindri, Dhanbad, P.O- Sindri, P.S.-Baliapur,
District-Dhanbad-828122.
2. Santosh Kumar Lodha, aged about 44 years, son of Hanuman
Prasad Lodha, resident of Flat No. B-1, First Floor, Pushpa Heritage,
Jayprakash Nagar, Dhanbad, P.O. & P.S. Dhanbad, District Dhanbad-
826001. ... ... Petitioners
Versus
1. State of Jharkhand through its Chief Secretary, having its office at
Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District
Ranchi, Jharkhand.
2. Secretary, Department of Rural Development, Government of
Jharkhand, having its office at Project Bhawan, Dhurwa, P.O.
Dhurwa, P.S. Jagannathpur, District Ranchi.
3. MGNERGA Commissioner, Department of Rural Development,
Government of Jharkhand, having its office at Project Bhawan,
Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
4. Commissioner, North Chhotanagpur Region, Hazaribagh, P.O. &
P.S. Hazaribagh, District Hazaribagh
5. Regional Development Officer, North Chhotanagpur Region,
Hazaribagh, P.O. & P.S. Hazaribagh, District Hazaribagh.
6. Deputy Commissioner -cum- District Program Coordinator,
MGNERGA, Dhanbad, having its office at Dhanbad, P.O. & P.S.
Dhanbad, District Dhanbad (Jharkhand)
7. Deputy Development Commissioner -cum- Additional District
Program Coordinator, MGNERGA, District Rural Development
Authority, Dhanbad, P.O. & P.S. Dhanbad, District Dhanbad.
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Anurag Vijay, Advocate For the Respondents : Mr. Rishi Ranjan Vats, AC to GA 1
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06/22.02.2024 Heard the learned counsels for the parties.
2. This writ petition has been filed for the following reliefs:
"(a) For issuance of the writ(s), order(s) or direction(s) particularly a writ of certiorari for quashing the memo no.13-
108/MANo KSHEo STHAo/2020/ GRAo VIo (N)996 (anu), Ranchi dated 20.07.2023 [Annexure-4], issued by the MGNREGA Commissioner Department of Rural Development, Government of Jharkhand (Respondent no. 3) wherein a direction for contractual appointment of MGNREAGA employees on vacant position has been made;
AND
(b) For issuance of the writ(s), order(s) or direction(s) particularly a writ of certiorari for quashing the recruitment advertisement 01/2023, Dhanbad dated 27.09.2023 [Annexure-5], notified by the Deputy Commissioner, Dhanbad for contractual appointment;
2(c) For issuance of the writ(s), order(s) or direction(s) particularly a writ of certiorari for setting aside any appointments made under the above advertisements.
(d) For issuance of any other appropriate writ(s) or direction(s) or order(s) as Your Lordships may deem fit and proper in view of the facts & circumstances of the case for doing conscionable justice to the Petitioners."
Arguments of the petitioners.
3. The learned counsel submits that petitioner no.1 has been working as Gram Rojgar Sewak and petitioner no.2 has been working as an Account Assistant under Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (herein referred to as the Act of 2005) against sanctioned post. The appointment letter of petitioner no.1 is contained in Annexure - 1 dated 01.09.2007 issued by the Deputy Commissioner-cum-District Programme Officer, Dhanbad and so far as petitioner no.2 is concerned, his name is in Annexure - 2 dated 08.05.2008 issued by the office of Commissioner North Chottanagpur Division, Hazaribagh which contains a list of 26 persons.
4. The learned counsel has submitted that the petitioners have challenged the advertisement issued by the respondents for filling up the vacancies and has fairly submitted upon a query of this Court that no vacancy concerning Gram Rojgar Sewak has been advertised in the impugned advertisement but, interalia, 6 vacancies relating to Accounts Assistant have been advertised.
5. The learned counsel submits that by the impugned recruitment process parallel rights may be created in favour of the persons who would be recruited and such recruitment is not in accordance with law.
6. The learned counsel for the petitioners has heavily relied upon the judgment passed by the Hon'ble Supreme Court reported in (2018) 8 SCC 238 (Narendra Kumar Tiwari vs. State of Jharkhand) paragraph nos.5 and 7 to 12 to submit that the Hon'ble Supreme Court has deprecated the practice of making ad hoc appointments by the State and also the practice of irregular and illegal appointment of daily wagers and continuing them indefinitely.
7. Admittedly the petitioners have not sought any relief for regularization. However, the learned counsel has referred to paragraph 5 of the judgment passed by this Court in W.P.(S) No.1021 of 2020 3 and other analogous cases to submit that the matter regarding regularization has been considered in the said judgment as some of the petitioners of the said batch of cases were also working under MGNREGA Scheme, 2005. He has also referred to paragraphs nos.28, 31, 32, 34, 35, 37, 41, and 42 of the said judgment to submit that unless there is regularization of the petitioners the respondents should not go for fresh advertisement.
Arguments of the Respondents.
8. The learned counsel appearing on behalf of the respondents while opposing the prayer of the petitioners has referred to the judgment passed by this Court in W.P.(S). No.7401 of 2019 whereby in the absence of any scheme for regularization of MGNREGA employees, the relief seeking mandamus for regularization was denied and it was also observed that if the government comes up with any such scheme for MGNREGA employees, then the case can be considered under such scheme.
9. The learned counsel has further submitted that the employment under MGNREGA is not employment under the State Government rather it is employment under the scheme and is purely contractual in nature governed by the aforesaid Act of 2005. He has submitted that it is a scheme sponsored by the Central Government and substantially financed by the Central Government and accordingly the judgment relied upon by the petitioner in the case of Narendra Kumar Tiwari (supra) has no applicability. He has also submitted that the judgment passed in W.P.(S). No.1021 of 2020 (supra) also does not apply as the petitioners are not seeking any regularization from this Court. So far as advertisement is concerned, he submits that only the vacant posts have been advertised and it is not clear how the petitioners are prejudiced by the advertisement for appointment on the vacant posts. Findings of this Court
10. This Court finds that the petitioners are aggrieved by the Memo dated 20.07.2023 (Annexure - 4) issued by respondent no.3 wherein a direction has been issued for contractual appointment under MGNREGA against vacant posts. They are also aggrieved by the follow-up advertisement no.1 of 2023 dated 27.09.2023 (Annexure -
5) issued by respondent no.6 whereby vacant posts of technical 4 assistant (equivalent to assistant engineer) (7); technical assistant (equivalent to superintending engineer) (19); account assistant (6) and computer assistant (6) are to be filled up.
11. From the perusal of the writ petition, the grounds mentioned in paragraph no.8 thereof, and the arguments advanced on behalf of the petitioners, it is apparent that the petitioners are aggrieved by the impugned order/advertisement primarily alleging that such appointments could not have been made without regularizing the services of the petitioners and other persons; if vacancies are filled up through contractual appointment by the impugned advertisement the same would amount to perpetuating the illegality of making irregular appointments and thereby enabling the respondents to dispense with their services at will.
12. For the aforesaid purpose, the petitioners have relied upon the judgment passed by the Hon'ble Supreme Court in the case of Narendra Kumar Tiwari (Supra) which is a sequel to the judgment passed by the Hon'ble Supreme Court in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1. The ground of the petitioners as per the writ petition is that the respondents cannot perpetuate the practice of employing persons on a daily wage/ ad hoc/ casual basis for a long period and then periodically regularizing them on the ground that they have served more than 10 years and thereby defeat the constitutional or statutory provisions relating to recruitment or appointment.
13. This Court finds that admittedly the petitioners have not sought any direction for regularizing their services but they contend that without regularizing their services, the impugned action to advertise and recruit contractual employees is not in accordance with the law.
14. Earlier an Act namely National Rural Employment Guarantee Act, 2005 ( in short NREGA) was enacted by Union Government which was later renamed as Mahatma Gandhi National Rural Employment Guarantee Act, 2005 to enhance the livelihood security of households in rural areas of the country by providing at least 100 days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for the matters connected therewith on incidental thereto.
515. From the contours of the Act of 2005 itself, it is apparent that employment under the Act of 2005 is essentially under the scheme to be framed by the State Government in terms of section 4 thereof. The Act of 2005 also provides that a Central Employment Guarantee Council would be there at the Central Level and the State Employment Guarantee Councils would be there at the State level for review, monitoring, and effective implementation of the legislation in the respective areas. The District Panchayat, District Programme Coordinator, Programme officers and Gram Panchayats have been assigned specific responsibilities in the implementation of various provisions of the legislation at the Gram Panchayat, Block, and District level.
16. Further, the Central Government has to establish a fund called the "National Employment Guarantee Fund" and the State Government is also required to establish "State Employment Guarantee Funds". The "implementation agency" includes any department of the Central Government or State Government, Zila Parishad, Panchayat at the intermediate level, Gram Panchayat on any local authority or government undertaking or non-governmental organization authorized by the Central Government or the State Government to undertake the implementation of any work taken up under the scheme. The "scheme" has been defined to be a scheme notified by the State Government under sub-section 1 of section 4 of the Act of 2005.
17. Thus, employment under the Act of 2005 is under schemes, and the expenses are substantially borne by the Central Government and the implementation of the schemes is through the implementation agency(s) as mentioned above.
18. The petitioners have stated in paragraph 7.6 that after the enactment of the Act of 2005, the State of Jharkhand, vide its Memo No.58 dated 03.01.2007 sanctioned the number of posts and fixed the monthly emoluments for different categories which is as follows:-
Sl. No. Name of the Post Emoluments (per Number of posts month in rupees) sanctioned
1. Gram Rojgar Sewaks 2,000/- 4130 (1 for every Gram Panchayat) 6
2. Technical Assistant 4,000/- 425 (1 for every 10 (Equivalent to Junior Gram Panchayat) Engineer)
3. Block Program Officer 10,000/- 390 (2 for every Block)
4. Technical Assistant 8,000/- 195 (1 for every (Equivalent to Assistant Block) Engineer)
5. Computer Assistant 7,500/- 195 (1 for every Block)
6. Account Assistant 7,500/- 195 (1 for every Block)
19. The petitioners have further stated that under the said Memo No. 58 dated 03.01.2007, the advertisement was issued in the year 2007-2008 in which the petitioners nos. 1 and 2 participated in the selection process and were appointed to Gram Rojgar Sewak and Account Assistant in the year 2007 and 2008 respectively.
20. The appointment letter issued to petitioner no. 1 reveals that he was appointed as Gram Rojgar Sewak on a contractual basis under NAREGA (now MGNREGA).
21. So far as petitioner no. 2 is concerned, the order of appointment reveals that he was appointed on a contractual basis under NAREGA (now MGNREGA) Act, 2005 for an amount of Rs. 7500/- per month and his emolument will be revised from time to time subject to the rate of honorarium to be revised by the Central Government and as per clause 2 the appointment is purely contractual and the Government will have no responsibility to grant any regularization/permanency to the appointment. It has also been mentioned that the appointment was for a period of one year and upon satisfactory completion of one year, it could be extended for a further contractual period of one year and if the appointment is not renewed then the same will be taken as terminated. In the said letter, it has also been mentioned that the parties were required to enter into an agreement with respect to the appointment.
22. A Resolution dated 28.05.2013 has been placed on record which is said to be passed by the Deputy Secretary, Department of Rural Development indicating that it was found difficult to meet the 7 salary expenditure of contractual employees under MGNREGA where 6% was earmarked on account of administrative expenditure. It was also indicated that the implementation of MGNREGA was dependent upon the funds released by the Central Government from time to time.
23. Thus, this Court finds that as per the entire scheme of the Act of 2005 followed by the scheme framed by the State of Jharkhand, which in turn is followed by advertisement and appointment, the appointment of the persons for the implementation of MGNREGA are made purely on contractual basis and the State is substantially dependent upon the fund allocated by the Central Government for the purpose. From the perusal of the records of this case, there can be no doubt that the services of the petitioners are on a purely contractual basis upon payment of monthly emolument/honorarium under the scheme and their initial appointment was only for a limited period of one year subject to extension from time to time. In such circumstances, it cannot be said that the petitioners have been appointed against vacant sanctioned posts of the State Government rather they have been appointed against vacant sanctioned posts under the scheme under the Act of 2005 which is under the joint implementation of the Central Government and the State Government.
24. Considering the aforesaid background, this Court finds that the letter dated 20.07.2023 (Annexure-4) issued to all the Deputy Commissioners reflects a decision to take up the selection process for regional employees under MGNREGA and a time schedule for the selection process was also fixed as per its enclosure. It further appears that by the impugned advertisement inter alia, only 06 vacant posts of Account Assistant were advertised by the office of District Rural Development Agency, Dhanbad on a purely contractual basis. In the entire writ petition, no such case has been made by the petitioners that the selection process by the impugned advertisement will have any impact on continuation of their work as Gram Rojgar Sewak and Accounts Officer; rather the advertisement reveals that only the vacant posts have been advertised. The argument of the petitioners that unless the petitioners are regularized, no appointment should be made, is 8 devoid of any merits. Admittedly there is no existing scheme for regularization of persons working under the Act of 2005.
25. In the judgment passed by the Hon'ble Supreme Court in Narendra Kumar Tiwari the appellants were the irregularly appointed employees of the State Government and they sought regularization of their status on the ground that they had put more than 10 years of service; Constitutional Bench decision of the Hon'ble Supreme Court in the case of "State of Karnataka Vs. Uma Devi" (supra) did not permit their regularization since they had not worked for 10 years on the cut-off date of 10.04.2006 as the State of Jharkhand was created only on 15.11.2000 and therefore, no one could have completed 10 years of service with the State of Jharkhand on the cut- off date on 10.04.2006; the State had issued certain resolutions for regularization of some employees of the State who had obviously not put in 10 years of service with the State and consequently, a plea of discrimination was also raised.
In the aforesaid factual background, the Hon'ble Supreme Court observed in paragraph 5 that the decision of "Uma Devi" (supra) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing them indefinitely and it was pointed out that the rule of law requires that the appointment should be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which could adversely affect those who could be employed in terms of the constitutional scheme and for such reason, the concept of one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease from making irregular or illegal appointments and instead make appointments on regular basis.
Because the State of Jharkhand came into existence only from 15.11.2000 and the cut-off date was fixed by the judgment of "Uma Devi" (supra) as 10.04.2006 and in this manner, the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench judgment, the following directions were issued by the Hon'ble 9 Supreme Court as contained in paragraph nos. 10 to 12 which is quoted as under:
"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..
11. The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants. The appeals are accordingly disposed of.
12. We may add that that it would be worthwhile for the State of Jharkhand to henceforth consider making regular appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments."
26. This Court finds that the judgment in the case of "Narendra Kumar Tiwari" (Supra) was dealing with those employees who were irregularly or illegally appointed, but in the present case, the appointments made by the respondents under the aforesaid Act of 2005 under the scheme upon payment of monthly honorarium on contractual basis which is neither illegal nor irregular, since, the same is in consonance with the provisions of the Act of 2005 and the scheme framed thereunder. The petitioners as a matter of right cannot claim to be regularized unless an appropriate scheme is framed by the Central Government/State Government to consider their case for regularization. The scheme for regularization which has been framed by the State Government does not apply to the petitioners or similarly situated persons.
27. In such background, this Court in W.P.(S) No. 7401 of 2019 has held as under:
"4. The learned counsel for the petitioners submits that all the petitioners are belonging to District Ranchi. He submits that as per the impugned letter as contained in Annexure-9, the applications for consideration of regularization of persons employed under the MNREGA scheme are not being accepted, but similar applications are being accepted in other districts of the State of Jharkhand.
5. The learned counsel appearing on behalf of the petitioners further submits that the respondents cannot be selective in considering the regularization of MNREGA employees.
6. The learned counsel appearing on behalf of the respondents has submitted that the impugned order has been rightly issued, in as much as, the employment under MNREGA is purely contractual. The persons are employed only for a period of one year and then, 10 their employment is terminated and they are employed as and when they are required. The employment under MNREGA is guided by the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and therefore, there is no question of regularization of these persons. He further submits that as on date, there is no scheme for regularization of such persons.
7. The learned counsel for the respondents also submits that the similar issue with regard to Jawahar Rozgar Yojna has been decided by the Hon'ble Supreme Court in the judgement reported in (1992) 4 SCC 99 (Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and Others) (para 22). He submits that there is no question of any selective application of any scheme for regularization with regard to MNREGA. He also submits that if any such scheme is floated by the government, the same would certainly take care of all the districts as per policy. The learned counsel submits that as on date, there is no scheme for regularization for MNREGA employees and therefore, no relief can be granted to the petitioners.
8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is observed that the petitioners have not produced or placed on record any scheme for regularization of persons employed under MNREGA. It is not in dispute that such persons are governed by the Act namely Mahatma Gandhi National Rural Employment Guarantee Act, 2005. It is sufficient to observe that if ever the respondents come up with any such scheme for regularization of MNREGA employees, they cannot be arbitrary and selective. If any such occasion arises later, the petitioners may have their remedy in accordance with law.
9. At this stage, this Court is not inclined to grant any relief to the writ petitioners under Article 226 of the Constitution of India. This writ petition is accordingly disposed of.
10. Pending interlocutory application, if any, is closed."
28. So far as the judgment relied upon by the petitioners in the case of W.P.(S) No. 1021 of 2020 (Dharo Oraon and others Vs. State of Jharkhand and others) and other analogous cases, paragraph no.5 of the said judgment is the submissions made by the learned counsel for the petitioners of the said case relating to persons employed under MNREGA. The cause of action of the writ petitions has been mentioned in paragraph 2 of the judgment as under:
2. All these petitioners either have prayed for quashment of orders denying their regularization in service or for a direction upon the respondents to regularize their services, who are/were working continuously for more than ten years in their respective Offices/ Departments/University/Instrumentalities of the State, in the light of judgment passed by the Hon'ble Apex Court in case of Narendra Kumar Tiwari & Ors. Vrs. State of Jharkhand & Ors., reported in (2018) 8 SCC 238, as also in view of the Regularization Policy framed by the Government of Jharkhand in the year 2015, amended in the year 2019.11
Ultimately this Court has not granted any relief of regularizing the petitioners of the said batch of cases and has directed the Government to constitute a high-powered committee consisting of Heads of Department/Secretaries and experts and take a conscious decision. Paragraphs 42 to 47 of the said judgment are quoted as under:
"42. So far as cases in which, either no order for regularization is passed or their cases are under active consideration, are being remitted, along with the aforesaid cases in which the claim of regularization of individual petitioners have been rejected, to be considered in accordance with law by High Powered Committee to be framed by the respondents as per the aforesaid direction of this Court within the stipulated period.
43. In the aforesaid circumstances, individual petitioners are directed to approach the respective Secretaries of the Department concerned by filing their respective representations along with a copy of this order and writ petition as well as other documents, if so required, within a period of one month from the date of receipt of a copy of this order and upon receipt of the same, the Department concerned shall take a conscious decision within a period of three months thereafter. If the Department concerned is unable to take a decision, the same shall be referred to the Chief Secretary of the State after assigning reason for not coming to a conclusion. The Chief Secretary of the State upon receipt of such recommendation from the Department concerned, shall constitute a High Powered Committee comprising of the Heads of the Departments/ Secretaries including the experts and other members, who are found appropriate in the interest of Committee for taking a final decision. The final decision shall be taken by the Committee so constituted within a further period of four months. The Committee shall examine individual cases and take a decision regarding regularization in 57 view of the guidelines framed by the State as per the direction of the Hon'ble Apex Court in the case of Narendra Kumar Tiwari (supra). If the Committee fails to take a unanimous decision on the representations of the individual employees, the same shall be disposed of with a cogent and valid reasoned order, in accordance with law. Thereafter, the parties if aggrieved by the said reasoned order are at liberty to approach this Court for redressal of their grievances. The same exercise as stated above shall be undertaken by the Union of India in consultation with the Government of Jharkhand for redressal of the grievances of the petitioners concerned for regularization.
44. The object behind constitution of such Committee is to ensure that no litigation comes to the Court without the parties having had an opportunity of conciliation before in-house Committee.
45. It is further ordered that the State shall come-out with a specific guideline taking into consideration the judgments cited above particularly the judgment rendered by the Hon'ble Apex Court in the case of Narendra Kumar Tiwari (supra), which has taken pain to deliberate the various observations of the Hon'ble Apex Court regarding regularization.
46. As far as the cases of Universities are concerned, the same exercise shall be done by the Vice Chancellor of the concerned University regarding constitution of High Powered Committee.12
47. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, all these writ petitions stand disposed of.
Pending I.As, if any also stand closed."
29. Thus, as of now there is neither any scheme for regularization for the persons employed on a contractual basis under the aforesaid Act of 2005 like that of the petitioners nor the petitioners are claiming regularization in this writ petition.
30. In such circumstances, the argument of the petitioners that unless the claim of regularization of the petitioners is considered, there cannot be any contractual employment under the scheme of the Act of 2005, is devoid of any merits. The process of recruitment under the policy of the Central Government as is reflected in the Act of 2005 which is implemented through the State Government by framing a scheme cannot be stalled and the recruitment process for vacant posts will certainly not have any impact on the scheme for regularization if framed for employees under the Act of 2005 in future in terms of the aforesaid orders passed by this Court in other writ petitions.
31. Consequently, this Court finds no merit in this writ petition which is accordingly dismissed.
(Anubha Rawat Choudhary, J.) Saurav/