Jharkhand High Court
Alok Burman And Ors vs Union Of India Through Secretary ... on 24 November, 2017
Author: S.N. Pathak
Bench: S.N. Pathak
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W.P.(S) No. 20 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 20 of 2017
1. Alok Burman
2. Jitendra Kumar
3. Anil Mohal Thakur
4. Vishwabhar Kumar Poddar
5. Manoj Kumar Singh
6. Putul Kumari
7. Ghousul Ahmad
8. Ahmad Ali
9. Vinay Kumar Sharma
10. Ashutosh Jha
11. Dinesh Kumar Pal
12. Gopal Pandey
13. Durga Shankar
14. Ved Prakash Tiwary
15. Rajesh Gupta
16. Ranjeet Kumar
17. Rakesh Kumar Singh
18. Ranjeev Kumar .... Petitioners
Versus
1. Union of India through Secretary, Ministry of Women and Child
Development, Govt. of India, New Delhi
2. State of Jharkhand
3. Principal Secretary, Department of Women, Child Development &
Social Securities, Govt. of Jharkhand, Ranchi
4. Director-cum-Chief Engineer Officer (ICPS), Directorate of Women,
Child Development & Social Securities, Govt. of Jharkhand, Ranchi
5. Director-cum-Member Secretary (ICPS), Jharkhand State Child
Protection Society, Women, Child Development and Social Securities
Department, Govt. of Jharkhand, Dhurwa, Ranchi
.... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK
For the Petitioner : Mr. Rajendra Krishna, Advocate
Mr. Ashok Kr. Sinha, Advocate
:Mrs. Neeta Krishna, Advocate
For the Respondents : Mr Prashant Kr. Singh, Advocate
Mr. Rajiv Sinha, Advocate
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W.P.(S) No. 20 of 2017
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C.A.V. on 18.08.2017 PRONOUNCED ON 24.11.2017 Dr. S.N. Pathak, J. Heard the parties.
2. The petitioner has approached this Court with the following prayers:-
"(I) For a direction commanding upon the respondents to restrain them to fill up the posts on which the petitioners are working in District Child Protection Unit created and established for the implementation of Juvenile Justice Act.
(II) To allow the petitioners to continue to the post on which they were duly appointed and working till the age of superannuation or till their services dismissed/ terminated on account of misconduct and unsatisfactory performance.
(III) For quashing the part of the order dated 21.09.2016 (Annexure -11) by which the decision has been taken to fill up the posts on which the petitioners are also working pursuant to the advertisement published and till said appointment is made the services of the petitioners have been extended.
3. Sans details, the facts as averred in the writ petition, in a nutshell is that an advertisement was published on 27.05.2013 in newspapers of the State of Jharkhand for inviting application from the persons eligible to be appointed on various posts under the Integrated Child Protection Scheme (ICPS). The name of the posts and number of posts have also been mentioned in the aforesaid advertisement. The petitioners applied for appointment on different posts pursuant to the aforesaid advertisement and accordingly, they appeared in the written examination followed by interview, held by the Selection Committee. They have been finally selected for appointment and accordingly, the appointment letters were issued in their favour under different letter numbers and they were posted in different districts. It is stated that after their appointments, the petitioners were sent for training at Rashtriya Jan Sahyog Evam Bal Vikas Sansthan, Kshetriya Kendra, Lucknow and the successfully completed their training. In this regard, Regional Director of the Training Institute has also issued certificate to them. The petitioners had worked satisfactorily under the respondents and for their satisfactorily working, the Principal Magistrate, Juvenile Justice Board has issued certificate to some the petitioners and the District Welfare Officer has issued certificate to other petitioners, showing their excellent performance on their respective posts on which the petitioners were appointed and working.
It is stated that vide letter dated 11.02.2014, the Director-
3 W.P.(S) No. 20 of 2017cum-Member Secretary, Jharkhand State Protection Society issued a direction to all the Secretaries, State Legal Service Authorities, Govt. of Jharkhand for taking necessary support and assistance of District Child Protection Society Staff specially the Legal -cum-Probation Officer for proper implementation of Juvenile Justice Act and Rules. It is stated that 65 posts in District Child Protection Unit (DCPU) has already been filled up, two posts in State Adoption Resource Agency (SARA) and three posts in State Child Protection Society have been filled up and all the aforesaid posts were in fact occupied by the petitioners after their appointment in accordance with law. At the time of appointment; admittedly, the State Government had not made any Rule rather appointment of the petitioners were made pursuant to the Provision for Selection Process given in the scheme of ICPS. Recently, the State of Jharkhand has come out with a Rule under Article 309 of the Constitution of India and the said Rule is published vide Notification No. 1835 dated 20.07.2016, which inter-alia envisages the persons to work after appointment for a total period of five years and after appointment if such persons continued till five years, the said person has to undergo through fresh recruitment process. It is further the case of the petitioners that the Director, Jharkhand State Child Protection Society issued an Advertisement in Prabhat Khabar dated 15.12.2016 by which all the State level and District level posts under the said Jharkhand State Child Protection Society were advertised for appointment and the posts on which the petitioners are working have also been advertised in the said advertisement. In the meantime, vide order dated 21.09.2016, the respondent No. 2 has extended the period of continue of the services of the petitioners till further order since the appointment against the posts, which are presently being held by the petitioners are being made pursuant to the fresh Advertisement vide advertisement dated 15.12.2016. Thereafter, the petitioners represented before the Principal Secretary, Women Child Development & Social Securities Department, Govt. of Jharkhand on 21.12.2016, requesting not to advertise and filled up the posts on which the petitioners are rendering their services/ duties, but unfortunately, no step have been taken by the respondents.
Left with no other efficacious, alternative and speedy remedy, the petitioners have been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of their grievances.
4. Mr. Rajendra Krishna, Advocate assisted by Ms. Neeta Krishna, 4 W.P.(S) No. 20 of 2017 learned counsel appearing on behalf of the petitioners submitted that the action of the respondents in floating the advertisement is illegal, arbitrary and against the settled principle of law. The petitioners were appointed pursuant to the advertisement and from the terms and conditions of the advertisement, it is clear that the petitioners shall continue to work on the post in question till their performance is satisfactory. No case is made out by the respondents as the performance of the petitioners are satisfactory and as such, the posts have been advertised for fresh appointment on contract basis for a short term on which the petitioners are working is against the provisions of law. Learned counsel further argued that it is a case of promissory estoppels as no action could have been taken beyond the promise which has been made as per the advertisement. It is also stated that Rule, 2016 is not applicable for the petitioners as far as the appointment is concerned. An adhoc arrangement cannot be replaced by another adhoc arrangement and as such, fresh the advertisement is fit to be quashed and set aside.
Learned counsel for the petitioner further submitted that one contractual appointment cannot be replaced by another contractual appointment, it violates the agreement entered into by the petitioners and State. The petitioners' appointment will be co-terminus with the Scheme and any statutory Rules cannot be given to the retrospective effect. Learned counsel for the petitioners has placed reliance on the Judgment rendered by the Hon'ble Apex Court in case of Md. Abdul Kadir & Anr. Vs. Director General of Police reported in (2009) SCC 611 and in case of Ajay & Ors. Vs. State of Maharashtra & Ors. in W.P. No. 9539 of 2012 passed by this Hon'ble Bombay High Court. On such circumstances, learned counsel for the petitioner submitted that this writ petition is fit to be allowed, by granting all the reliefs as sought for by the petitioners.
5. Controverting the statement of the petitioners in the writ application, counter-affidavit affidavit has been filed on behalf of the respondents.
6. Mr. Prashant Kr. Singh, learned counsel appearing on behalf of the respondents vehemently opposed the contentions advanced by the learned counsel for the petitioners and argues that once a Rule has come into existence i.e. Rule 2016 Rules, the contractual appointment come to an end. Learned counsel further submitted that the petitioners have already participated in the recruitment process and now it is not open to them to challenge the said appointment. The contractual appointments come to an 5 W.P.(S) No. 20 of 2017 end and no right accrues to the petitioners. Learned counsel for the respondents has placed reliance on the Judgment rendered by the Hon'ble Apex Court in case of Ranjan Kumar etc. Vs. State of Bihar & Ors. reported in 2014 (3) Supreme 646. Learned counsel for the respondents further argued that Judgment of the Hon'ble Apex Court relied upon by the petitioners does not come to their rescue as in the instant case, the petitioners were continued in the services and in the present case, the services of the petitioners have come to an end.
Learned counsel for the respondents further submitted that the petitioners have not even challenged the Rule, 2016 and as such, in absence of any challenge to the said Rule, the present writ petition is devoid of any merit and is fit to be dismissed.
7. Be that as it may, having gone through the rival submissions of the parties and after perusal of materials on records, this Court is of the considered view that the case of the petitioner needs consideration. The petitioners were duly appointed in accordance with selection process prescribed by the Scheme and as such there is no reason why those appointment under the Scheme should not be continued as long as the Scheme continues. Adhoc appointments under Schemes are normally co- terminus with the Scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). It is settled principle of law that no adhoc appointment can be replaced by another adhoc appointment. Admittedly, at the time of appointment of the petitioners, no Rules were in existence, it is only in 2016, the Rules were framed by the State of Jharkhand. The Rules of 2016 cannot be given retrospective effect it can have only prospective effect and can be implemented only after the Rules came into existence. The petitioners were appointed under Scheme, the petitioners are entitled for continuation of their services till the Scheme comes to an end or till the attainment of age of superannuation or in alternative if they are discharged from the services on account of any allegation or charge misconduct by adhering to any disciplinary proceeding, the same has not been done in the instant case though the Rules provided for that. Even Clause 7 of the Agreement, which talks of termination, have not been exhausted and as such, the action of the respondents cannot be justified. The Hon'ble Apex Court in case of Md. Abdul Kadir & Anr. Vs. Director General of Police, (2009) SCC-611 has clearly held that " we are therfore of the view that the learned 6 W.P.(S) No. 20 of 2017 Single Judge was justified in observing that the process of termination and reappointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, conterminous with the Scheme".
In the present case, the petitioners have participated in the fresh selection process under taken by the State Government as per its policy, there is no objection as participating in the recruitment process do not deprive their right to challenge the recruitment process. The petitioners are not claiming promotion or absorption or regularization, what is claimed by the petitioners is that they should be continued in employment till the scheme in question continued or is changed. The case of the petitioners is squarely covered by the Judgment of Hon'ble Apex Court in case of Md. Abdul Kadir & Anr. Vs. Director General of Police (supra). The contention of the learned counsel for the respondents is not tenable in the eyes of law as Rule, 2016 cannot be given retrospective effect any change in the policy in view of the Rules can be given effect only after the Rule come into existence. The Hon'ble Apex Court in case of N. T. Devin Katti & Ors. Vs. Karnataka Public Service Commission reported in (1990) 3 SCC 157 observed that "the service rules - normally operates prospectively unless indicated to the contrary by express language or by necessary implication".
8. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, the part of the advertisement dated 15.12.2016 and part of the order dated 21.09.2016 are quashed and set aside, by which decision has been taken to fill up posts on which the petitioners are also working pursuant to the fresh advertisement published and till the said appointments are made the services of the petitioners have been extended. In view of quashment of the said order, the respondents are directed to continue the services of the petitioners until continuation of the scheme or until they attain the age of superannuation, whichever occurs earlier, subject of course to earlier termination either on medical or disciplinary grounds or for unsatisfactory performance.
9. With the aforesaid observations, the writ petition stands allowed.
10. I.A. No. 276 of 2017 and I.A No.323 of 2017 also stand disposed of.
(Dr. S.N. Pathak, J.) punit