Jharkhand High Court
Ritesh Ranjan vs The State Of Jharkhand Through The ... on 18 January, 2018
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 861 of 2011
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1. Ritesh Ranjan, son of Sri Sachidanand Singh.
2. Lalan Kumar, son of Sri Rambali Paswan.
... ... Petitioners
VERSUS
1. The State of Jharkhand through the Principal Secretary, Primary, Secondary and Higher Education, Human Resource Department, Govt. of Jharkhand, Ranchi.
2. The Deputy Secretary, Finance Department, Govt. of Jharkhand, Ranchi.
3. Vinoba Bhave University through its Vice Chancellor, Hazaribagh.
4. The Vice Chancellor, Vinoba Bhave University, Hazaribagh.
5. The Registrar, Vinoba Bhave University, Hazaribagh.
6. The Principal, R.S.P. College, Jharia, Dhanbad.
7. The Principal, Giridih College, Giridih.
8. National Council for Teachers Education (NCTE) through its Chairperson, having its office at NCTE, Hans Bhawan, P.O. Indraprastha Head Post Office, New Delhi
9. The Regional Director (ERC), NCTE, 15 Neelkantha Nagar Nayapalli, Bhubaneswar.
... ... Respondents.
============================================================= For Petitioners : Mr. Indrajit Sinha, Advocate Mr. Vipul Poddar, Advocate For Respondents : Mr. Neelam Tiwary, JC to Sr. SC-I Mr. Amrita Kumari, JC to Sr. SC-I Mr. Mithilesh Singh, Advocate ============================================================= CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK 11/ 18.01.2018 Heard learned counsel for the petitioners and learned counsel for the respondents.
2. The petitioners have approached this Court with a prayer for allowing the petitioners to join and discharge their duties as Lecturers in B.Ed. Course as similarly situated persons have been allowed to work. Petitioners 2 have further prayed for a direction upon the respondents to absorb the petitioners as full time and regular B.Ed. Lecturer in their respective colleges. Petitioners have also prayed for a direction upon the respondents to pay the petitioners' salary in the same pay-scale as that of B.Ed. Lecturer in government run B.Ed. Colleges and also to give them pay-revision as and when given to the B.Ed. Lecturers in government run B.Ed. Colleges and accordingly, remit the arrears of the sum due.
3. The facts as derived from the writ petition are that the petitioner No. 1 is M.A. (Ancient Indian History & Archeology) and M.Ed., whereas, petitioner No. 2 possesses M.Sc. (Zoology) and M.Ed. as their educational qualification. It is the specific case of the petitioners that the Registrar of Vinoba Bhave University vide an Employment Notice dated 07.05.2006, published in daily Hindi Newspaper (Dainik Jagaran) invited applications for the post of Lecturer for B.Ed. Course, which was scheduled to be conducted in various colleges under Vinoba Bhave University. As per the employment notice, applications were invited from suitable candidates for appointment on contractual basis for 11 months and appointments were to be made on the basis of marks obtained in written test as well as in interview. The petitioners appeared in the written examination and also appeared in the interview and thereafter, after being declared successful in both the tests, vide letter dated 06.12.2006, petitioner No. 1 was appointed as Lecturer in B.Ed. Course 2006- 07 at R.S.P. College, Jharia, Dhanbad for a period of 11 months from the date of appointment and likewise, the petitioner No. 2 was appointed as Lecturer in B.Ed. Course 2006-07 at Giridih College, Giridih for a period of 11 months from the date of his joining. Thereafter, vide notifications dated 05.12.2007 and 10.01.2008, their period of engagement was further extended for a period of 11 months in connection with B.Ed. Course 2007-08 and subsequently, another extension of 11 months was given to them vide notifications dated 19.01.2009 for Session 2008-09.
It is the specific case of the petitioners that while they are working as Lecturer in their respective Colleges for the Sessions 2008-09, the Registrar, Vinoba Bhave University once again come-up with fresh employment notice published in daily Hindi Newspaper (Dainik Jagaran) dated 3 23.01.2009, wherein applications were invited from suitable candidates for appointment as Lecturer on contractual basis for the B.Ed. Course being conducted in different constituent colleges of the University. Thereafter, some of the aggrieved persons had approached this Hon'ble Court by way of writ petition being W.P.(S). No. 695 of 2009 and this Hon'ble Court was also pleased to pass interim order directing the respondents therein not to terminate the services of the petitioner No. 1 therein. Since the petitioners of the instant case did not file any writ application against the said employment notice, they had participated in the selection process and vide notification dated 12.05.2009, the petitioner No. 1 was again selected and consequently, appointed as lecturer in B.Ed. Course at R.S.P. College, Jharia for a further period of 11 months and similarly, petitioner No. 2 was selected and appointed at Giridih College, Giridih for the period of 11 months. Thereafter, the petitioners were granted extension of service upto 31st July, 2010 vide letter dated 05.05.2010. Upon completion of extension period, vide letter dated 29.07.2010, the Registrar, Vinoba Bhave University communicated to the concerned Principals of B.Ed. Colleges to discontinue the services of the teachers who were appointed on contractual basis from the afternoon of 31.07.2010, so as to make fresh consideration with regard to renewal of contractual period.
It is the further case of the petitioners that pursuant to the said letter, the services of the petitioners were discontinued and they were forced to sit idle. Later on, the petitioners came to know by news article published in Hindi Newspaper (Hindustan) dated 29.01.2011 that out of panel prepared in pursuance of Employment Notice dated 23.01.2009, a revised list has been prepared by the University in which few candidates whose names were appearing in the previous penal are allowed to continue as Lecturer in B.Ed. Course but to the utter shock and surprise of the petitioners, their names were excluded from the said revised list. Thereafter, the petitioners filed several representations before the respondents-authorities but till date no reasons has been communicated to the petitioners as to why their names were left out in the revised list. Hence, this writ petition has been filed.
4. Learned counsel for the petitioners submits that the action of the respondents in continuing the services of other similarly situated contractual 4 appointees and discontinuing the services of the present petitioners is arbitrary and against the provisions of Articles 14 and 16 of the Constitution. Learned counsel further submits that the action of the respondents in not making regular appointments of Lecturers in B.Ed. Programme is in contravention of the guidelines issued by National Council of Teachers Education. Learned counsel further submits that the petitioners being fully eligible should have been continued in service when similarly situated appointees have been granted renewal of their tenure. A contractual lecturer of B.Ed. is entitle to receive the same pay-scale as that of a lecturer in B.Ed. Course in a government college and the services of the petitioners should have been absorbed in the regular cadre.
5. Per contra, counter-affidavit has been filed by the respondents.
Learned counsel appearing for respondent Nos. 3 to 5 argues that the services of the petitioners were governed by the terms of contract between the petitioners and the University. The contract of the petitioners came to an end on 31.07.2010 and since then, they ceased to be the employees of the University. Learned counsel further argues that pursuant to the vacancy arising on account of closer of the contract of petitioners, an employment notice was published in the Hindi Daily "Hindustan" dated 08.06.2011 for appointment of 29 lecturers on contractual basis in B.Ed. Course of different constituent colleges of the University but the petitioners have not participated this time and hence, they do not deserve the appointment. Learned counsel for the respondents further argues that petitioners now at this stage cannot derive any benefit from the order dated 29.04.2009, passed in W.P.S. No. 695 of 2009, for the simple reason that they are not similarly placed as the petitioners have categorically admitted in para-11 of the writ petition that pursuant to employment notice dated 23.01.2009, they participated in the selection process and vide notifications dated 12.05.2009, they were selected and appointed in the colleges of the University. Learned counsel for the respondents submits that the petitioners are trying to mislead this Hon'ble Court by stating that 'a set of contractual appointee is being replaced by another set of contractual appointee'. The correct fact is that there is no question of replacement as the contract of the petitioners with the University has come to an end giving rise 5 to the vacancies and the process to fill-up the same is started. Accordingly, learned counsel for the respondents submits that in view of the aforesaid facts, the writ petition is not maintainable either in the eyes of law or on the facts of the case and the same deserves to be dismissed in limine.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners need consideration.
7. Similar issue fell for consideration before this Hon'ble Court in W.P.(S). No. 3762 of 2015 and other analogous cases and this Hon'ble Court allowed the said writ petitions with a suggestion to the respondent to undertake recruitment to such post in a regular manner as per any policy decision of the respondent-State taken in that regard. The relevant para of the order dated 06.01.2016 is reproduced herein below:-
"The respondent department would consider the cases of such petitioners who have been thrown out by virtue of impugned decision for re-engagement subject to availability of vacant posts in the respondent-Department concerned within a period of four weeks from the date of receipt/ production of a copy of this order. However, it is made clear the engagement of these personnel being contractual in nature, it would be governed by its terms and conditions. It would also be open for the respondents to undertake recruitment to such post in a regular manner as per any policy decision of the respondent- State taken in that regard."
The view expressed by the Hon'ble Single Judge was affirmed by the Hon'ble Division Bench in LPA No. 256 of 2016.
The Hon'ble Apex Court in case of Hargurpratap Singh Vs. State of Punjab & Ors., reported in (2007) 13 SCC 292 has held as under:-
"3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay-scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint 6 persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appoints are made on minimum of the pay-scale. The appeals shall stand allowed in part accordingly."
Similar view was also taken by the Hon'ble Delhi High Court in case of Narinder Singh Ahuja & Ors. Vs. the Secretary, Ministry of Health & Family Welfare & Ors., reported in (2014) 146 DRJ 167, wherein the Hon'ble Court has held as under:-
"15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to outsource" engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners employment is not their replacement with regular appointees, but instead,with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended."
The Hon'ble Supreme Court in the case of State of Haryana & Ors. Vrs. Piara Singh & Ors., reported in AIR 1992 SC 2130, has held as under:-
"25. ............... Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a 7 regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana 8 (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
8. Taken into account the order dated 01.08.2011, passed in this case by a Co-ordinate Bench of this Hon'ble Court, it transpires that there was a direction upon the respondents to retain the services of the present petitioners and in pursuant to the said order, they are continuing with their assignments.
9. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I hereby direct the respondents not to disturb the petitioners from working on the post of Lecturers in B.Ed. Course on contractual basis un-till the final decision of regular appointment is taken. It is open for the respondents to initiate process for regular appointment through open competition to the post of Lecturers in B.Ed. Course but an opportunity to the petitioners should be given by giving relaxation of their age, if required, in appropriate cases, for participating in the regular appointment in accordance with law. Let it be made clear that engagement of these petitioners being contractual in nature, it would be governed by its terms and conditions.
10. Resultantly, the writ petition stands disposed of with aforesaid observations and directions.
(Dr. S.N. Pathak, J.) kunal/-