Jharkhand High Court
Vishnu Kumar Bansal And Ors vs State Of Jharkhand And Ors on 3 April, 2017
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 3973 of 2014
1. Vishnu Kumar Bansal, S/o Shri Radha Ballabh, presently
residing at H.N.93, Room No C6, Near Shiv Mandir, P.O. P.S.
Katwaria Sarai, New Delhi110016
2. C.K. Purti, S/o Shri Paulus Purti, presently residing at D63,
64/01 Ground Floor, Vishwakarma Colony, Lal Kuan M.B. Road,
POBadarpur, PSPul Pahldpur, New Delhi110044
3. Tarun Kumar, S/o Late Shri Chaman Lal, presently residing at
House No.177, Block No.13, 3rd Floor, Geeta Colony, POGeeta
Colony, PSGeeta Colony, Delhi110031
4. Rajesh Xalxo S/o Shri William Xalxo, presently residing at Park
View Apartment, C9, Plot No.34, Ward No1, Mehrauli, PO & PS
Mehrauli, New Delhi110030
5. Bipta Oraon, S/o Shri Thuma Oraon, presently residing at
Jharkhand Bhawan, Near Indian Airlines Colony, Vasant Vihar,
PO&PSVasant Vihar, New Delhi110057
6. Manisha Gusain @ Rawat D/o M.S. Rawat, presently residing at
DB90A, LIG DDA Flats, Hari Nagar, PO & PSHari Nagar New
Delhi110064
7. Ravindar Kumar, S/o Late Shri Sohan Lal, presently residing at
Mizoram Bhawan, Q. No.2, Chankyapuri, PO & PSChankyapuri,
New Delhi
8. Sushil Minz, S/o late Shri Benedick Minz, presently residing at
Block22, Q.No.601, Nurses Residential Complex, Sriniwaspuri,
PO&PSSriniwaspuri, New Delhi110065
9. Rajnath Singh Yadav, S/o Shri Ramdas Yadav, presently residing
at A1/110, Safdarjung Elclave, PO & PSSafdarjung, Delhi
10. Rakesh Kumar, S/o Shri Jageshwar, presently residing at 62,
D.I.D. Delhi Raidiag Club, Safdarjung Road, PO & PSSafdarjung,
New Delhi
11. Kamal Soren, S/o Shri Barka Soren, presently residing at 309A,
Muniraka Village, PO & PSMuniraka, New Delhi
12. Phulendar Baski, Driver S/o Shri Nunua Baski, presently
residing at Balwant Rai Mehta Lane, Banglow No.23, New Delhi
110021
13. Sanjay Kumar Manjhi, S/o Shri Shiv Shankar Manjhi, presently
residing at 237, Sector6 R.K. Puram, PO & PSR.K. Puram, New
Delhi110022
14. Diwakar Prasad, S/o Shri Kiran Deo Prasad, presently residing
at C/o Rajvir Singh, 2A/9, Dahiya Bhawan, 2nd Floor, Kishangarh,
Basantkunj, New Delhi110070
15. Kaushal Kumar Yadav, Driver, Shri Janki Prasad Yadav,
Presently residing at Bihar Bhawan, Q.No.7, Chankyapuri, PO &
PSChankyapuri, New Delhi110021
16. Awadh Rai, S/o Saryu Rai, presently residing at C/o Jharkhand
Bhawan, Vasant Vihar, Kusumpur Pahari, PO & PSBasant Vihar,
New Delhi110057
17. Aggapir Ekka, S/o Shri Shanti Prasad Ekka, presently residing
at House No.72, Mohmadpur, PO & PSMohmadpur, New Delhi
110066
2
18. Sanjay Kumar Sinha, S/o late Shri Narayan Prasad Sinha,
presently residing at F33/C Centre Wali Gali, Katwaria Sarai, New
Delhi110016 .... ...... Petitioners
Versus
1. State of Jharkhand, Through Chief Secretary, having its Office at
Project Building, PO+PSDhurwa, Distt.Ranchi, Jharkhand
2. Secretary, Department of Personnel, Training and Rajbhasha,
Govt. of Jharkhand having its office at Project Building PO+PS
Dhurwa, Distt.Ranchi, Jharkhand
3. Secretary, Labour, Employment & Rajbhasha, Govt. of
Jharkhand, Project Building, PO & PSDhurwa, DistrictRanchi
4. Resident Commissioner, Govt. of Jharkhand, Jharkhand Bhawan,
New Delhi .... ..... Respondents
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. Indrajit Sinha, Adv.
For the State : Mr. Sumir Prasad, SCI
C.A.V. On : 28.03.2017 Pronounced on : 03/04/2017
Shree Chandrashekhar, J. :
With a prayer for regularisation in service in regular
payscale, the petitioners, eighteen in number, who were
appointed following the due process on sanctioned vacant posts,
have approached this Court.
2. Facts leading to filing of this writ petition are,
hereinafter, setout in detail. On formation of the State of
Jharkhand on 15.11.2000, a camp office of the Chief Minister was
established at New Delhi. Separate offices for the Resident
Commissioner and the Chief Executive Officer were also
established at Jharkhand Bhawan, New Delhi, to facilitate liaison
between the State Government and the Central Government and
to provide necessary infrastructure and facilities to the Governor,
Chief Minister and other officers visiting Delhi for attending
official meetings. Vide Resolution dated 28.07.2001, fourteen
posts for the office of the Resident Commissioner, twentynine
3
posts for Chief Executive Officer's office and nine posts for the
camp office of the Chief Minister were created. This Resolution
was to be published in the ExtraOrdinary Gazette. Except two
posts namely, TypistcumComputer Data Entry Operator and
driver for the staffcar of Additional Resident Commissioner, which
were permanent on contract basis, eight permanent posts were
created for the office of the Resident Commissioner. For the office
of the Chief Executive Officer, one permanent post each of
Accountant, Assistant, Billclerk, Cashier and Typist were created.
There were eight posts for staffcar driver, three room attendants,
four peons, two sweepers and one TypistcumComputer Data
Entry Operator, however, these posts were created for appointment
on contract. Three permanent posts of Protocol Assistants were
also created. These petitioners were appointed on one of the
vacant posts, but on contract. Some of them were appointed
initially for six months and some of the petitioners for one year,
and they all have continued to work on their respective posts till
date. Their appointment letters would testify that all the
petitioners were appointed on sanctioned vacant posts, however,
not in the payscale sanctioned for their posts by the Resolution
dated 28.07.2001. In the letter of appointment of some of the
petitioners it was mentioned that they shall be given preference in
the regular appointment. The petitioners are paid city allowance
and they have been granted additional dearness allowance. They
have also been provided travelling allowances and medical
facilities, and some of the petitioners are given uniform allowance
also. Drivers and Protocol Assistants are paid monthly mobile
phone bills to the admissible limit. A brief description of the
petitioners' employment can be seen in the table below:
Sl. No. Post Nature of post Date of
appointment
Petitioner Bill Clerkcum Permanent post 31.07.2004
No. 1 Accountant
4
Typistcum Computer Permanent, on 22.11.2007
Data Entry Operator contract basis
Petitioner Protocol Assistant Permanent post 26.06.2004
no. 2
Petitioner Driver Permanent, on 13.09.2003
no. 3 contract basis
Protocol Assistant Permanent post 28.02.2006
Petitioner Protocol Assistant Permanent post 30.01.2008
no. 4
Petitioner TypistcumData Entry Permanent, on 07.06.2005
no. 5 Operator contract basis
Petitioner Typist Permanent post 07.06.2005
no. 6
Petitioner Driver Permanent, on 25.06.2003
no. 7 contract basis
Petitioner Driver Permanent, on 25.06.2004
no. 8 contract basis
Petitioner Driver Permanent, on 01.12.2003
no. 9 contract basis
Petitioner Driver Permanent, on 31.01.2008
no. 10 contract basis
Petitioner Driver Permanent, on 20.07.2004
no. 11 contract basis
Petitioner Driver Permanent, on 31.01.2008
no. 12 contract basis
Petitioner Driver Permanent, on 01.08.2003
no. 13 contract basis
Petitioner Driver Permanent, on 31.01.2008
no. 14 contract basis
Petitioner Driver Permanent, on 26.06.2002
no. 15 contract basis
Petitioner Driver Permanent, on 31.01.2007
no. 16 contract basis
Petitioner Peon Permanent Post 05.01.2001
no. 17
Petitioner Bill Clerk Permanent Post 22.11.2007
no. 18
3. Several correspondences in respect of regularisation of
the petitioners' service have been brought on record, one of such
letter was written on 22.06.2006 by the Secretary, Cabinet
Secretariat and Coordination Department (now redesignated as
Cabinet Secretariat and Vigilance Department). By this letter, the
Resident Commissioner was informed the decision of the Finance
Department to revise payscale of the drivers and peons, but this
5
letter is important for a reference to a direction of the Hon'ble
Chief Minister for regular appointment on the posts on which the
petitioners and others were appointed on contract. But, no step for
regular appointment on most of the posts created on 28.07.2001,
was ever undertaken. It appears that some of the petitioners who
had worked for several years made a representation to the
Resident Commissioner, Jharkhand Bhawan and to the
Government, in response thereof, by a letter dated 22.05.2008 the
Deputy Secretary, Cabinet Secretariat and Coordination
Department sought opinion/comments from the Resident
Commissioner, who on 23.06.2008 forwarded necessary
informations to the Department. By this letter the Resident
Commissioner send a recommendation for their regularisation. A
followup letter was sent by the Resident Commissioner on
06.08.2008, which bears reference of a meeting convened by the Chief Secretary on 30.07.2008 at New Delhi, during his visit at New Delhi. The minutes of the said meeting was communicated to the Resident Commissioner vide, letter dated 02.08.2008. Letter dated 02.08.2008 records that in the said meeting besides the Resident Commissioner, other officers including, the Secretary, Cabinet Secretariat and Coordination Department were also present. It transpires that a consensus emerged in the said meeting to regularise the contractual employees of the Jharkhand Bhawan and, accordingly, the Chief Secretary directed the Resident Commissioner to send details of the contract/dailywages employees to the Cabinet Secretariat and Coordination Department for regularisation of their services. A similar letter referring to the previous letters was sent by the Resident Commissioner on 30.10.2010 to the Chief Secretary, Government of Jharkhand. However, the respondents remained unresponsive, constrained, the petitioners have moved this Court. During the course of hearing on 30.09.2016, when the learned counsel for the 6 petitioners drew attention of the Court to letter dated 06.08.2008 which bears a reference to the aforesaid direction of the Chief Secretary and other recommendations of the Resident Commissioner, this Court issued a direction to the respondents to take a decision in the matter. Pursuant to the aforesaid order, the respondents took the decision which was brought on record by an affidavit dated 23.01.2017. This decision has been challenged by the petitioners by filing I.A. No. 2474 of 2017 which was allowed.
4. Specific stand of the respondents for declining the claim of the petitioners for their regularisation in service, is that they have not completed 10 years of continuous service as on 01.04.2006, which is a conditionprecedent for regularisation in terms of ">kj[kaM ljdkj ds vf/kuLFk vfu;fer :i ls fu;qDr dk;Zjr deZpkfj;ksa ds fu/kkZfjr fu;ekoyh] 2015", commonly known as Recruitment Rules, 2015. By letter dated 18.01.2017, decision of the competent authority was communicated to the Principal Resident Commissioner, Jharkhand Bhawan. This letter is reproduced below:
i=kad&04@ea0e0l0¼>k0 Hk0 LFkk0½&002@2015 69 >kj[k.M ljdkj eaf=eaMy lfpoky; ,oa fuxjkuh foHkkx ¼leUo;½ izs"kd jktdqekj pkS/kjh] ljdkj ds la;qDr lfpoA lsok esa] iz/kku LFkkfud vk;qDr >kj[k.M Hkou] ubZ fnYyhA jk¡ph] fnukad 18 tuojh] 2017 bZ0A fo"k;%& okn la[;k & W.P.(S) No.3973/2014 fo".kq dqekj caly ,oa vU; cuke >kj[k.M jkT; ,oa vU; ds laca/k esaA izlax%& LFkkfud vk;qDr dk dk;kZy;] >kj[k.M Hkou] ubZ fnYyh dk i=kad&300@ RC fnukad 04-11-2016 egk'k;] funs'kkuqlkj mi;qZDr fo"k;d izklafxd i= ds vkyksd esa dguk gS fd >kj[k.M Hkou] ubZ fnYyh esa lafonk ds vk/kkj ij dk;Zjr W.P.(S) No.3973/2014 ds ;kfpdkdRrkZ& ¼1½ Jh fo".kq dqekj caly ¼2½ Jh lh0 ds0 iwRrhZ ¼3½ Jh r:.k dqekj ¼4½ Jh jkts'k [ky[kks ¼5½ Jh fcirk mjkao ¼6½ Jherh euh"kk ¼7½ Jh jfoUnz dqekj ¼8½ Jh lq'khy feat ¼9½ Jh jktukFk ;kno ¼10½ Jh jkds'k dqekj ¼11½ Jh dey lksjsu ¼12½ Jh QqysUnz ckLdh ¼13½ Jh lat; dqekj eka>h ¼14½ Jh fnokdj izlkn ¼15½ Jh dkS'ky dqekj ¼16½ Jh vo/k jk;7
¼17½ Jh vxkfir ,Ddk ¼18½ Jh lat; dqekj flUgk dh lsok fu;ferhdj.k ds fcUnq ij for foHkkx ,oa dkfeZd] iz'kklfud lq/kkj rFkk jktHkk"kk foHkkx }kjk fn;s x;s ijke'kZ ds vkyksd esa ljdkj }kjk fu.kZ; fy;k x;k gS fd mi;ZqDr dehZ dkfeZd] iz'kklfud lq/kkj rFkk jktHkk"kk foHkkx dh vf/klwpuk la[;k&1348] fnukad 13-02-2015 ds }kjk vf/klwfpr ^vfu;fer :i ls fu;qDr ,oa dk;Zjr dfeZ;ksa dh lsok fu;ferhdj.k fu;ekoyh] 2015^ esa of.kZr vgZRrvksa dks iwjk ugha djrs gS]a blfy, budh lsok fu;fer ugha dh tk ldrh gSA vr% vuqjks/k gS fd mDr fu.kZ; ds vkyksd esa lacaf/kr okn la[;k& W.P.(S) No.3973/2014 esa fnukad 23-01-2017 rd ekuuh; U;k;ky; esa izfr'kiFk i= nk;j djus gsrq vko';dr dkjZokbZ lqfuf'pr djus dh d`ik dh tk;A fo'oklHkktu] ¼jktdqekj pkS/kjh½ ljdkj ds la;qDr lfpo English Translation:
Letter No.04/Man. M. S. (Jha. Bh. Sth.) 002/201669/ Government of Jharkhand Department of Cabinet Secretariat and Vigilance (Coordination) From, Raj Kumar Chaudhary, Joint Secretary to the Government To, The Principal Resident Commissioner, Jharkhand Bhawan, New Delhi.
Ranchi, Dated 18th January, 2017 Sub: Case No.W.P.(S) No.3973/2014, Vishnu Kumar Bansal & Ors. Vs The State of Jharkhand & Ors. Regarding Ref: Letter No.300/RC dated04.11.2016 Office of the Resident Commissioner, Jharkhand Bhawan, New Delhi.
Sir, As directed, vide reference letter on the above subject, this is to state that on the advice of the Department of Personnel, Administrative Reforms and Rajbhasha and the Finance Department on the point of regularisation of services of the petitioners of W.P.(S) No.3973/2014 namely, (1) Sri Vishnu Kumar Bansal (2) Sri C.K. Purti (3) Sri Tarun Kumar (4) Sri Rajesh Xalxo (5) Sri Bipta Oraon (6) Smt. Manisha (7) Sri Ravindra Kumar (8) Sri Sushil Minz (9) Sri Rajnath Yadav (10) Sri Rakesh Kumar (11) Sri Kamal Soren (12) Sri Fulendra Baski (13) Sri Sanjay Kumar Manjhi (14) Sri Diwakar Prasad (15) Sri Kaushal Kumar (16) Sri Awadh Rai (17) Sri Agapit Ekka (18) Sri Sanjay Kumar Sinha, who are working on contract basis in Jharkhand 8 Bhawan, New Delhi, it has been decided by the Government that the aforesaid appointees do not fulfill the eligibility under the ANIYAMIT RUP SE NIYUKT AWAM KARYARAT KARMIYON KI SEWA NIYAMITIKARAN NIYAMAWALI, 2015, which is notified by Notification No.1348 dated13.02.2015 of Department of Personnel, Administrative Reforms and Rajbhasha,), and therefore, their services cannot be regularised.
Therefore, it is requested that pursuant to the aforesaid decision, kindly ensure filing of counter affidavit in Hon'ble Court in W.P.(S) No.3973/2014 by 23.01.2017.
Yours faithfully Sd/ (illegible) (Raj Kumar Chaudhary) Joint Secretary to the Government
5. In the background of the facts setout in the preceding paragraphs, claim of the petitioners for regularisation, and, in turn, legality of the decision taken by the respondentauthority as reflected in letter dated 18.01.2017 have to be examined. But, before that in the context of a clause in the appointment letter of some of the petitioners, that they would not claim regular appointment on the basis of their contractual appointment, it needs to be clarified that such a stipulation cannot be sanctioned in law. In "SecretarycumChief Engineer, Chandigarh Vs. Hari Om Sharma and Others", [(1998) 5 SCC 87], while dealing with a contention that an appointee who gave an undertaking not to claim promotion as of right, on the basis of the promotion granted as stopgap arrangement, the Supreme Court has observed thus :
8. "Learned counsel for the appellant attempted to contend that when the respondent was promoted in stopgap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stopgap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties 9 cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the nondiplomaholders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stopgap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872."
6. In the counteraffidavit, it is pleaded that against some of the petitioners there were complaints. It is pertinent to note that neither a copy of any complaint nor punishment, if any, imposed upon any of the petitioners has been disclosed and brought on record, and moreover, by continuing the petitioners in service, it must be inferred that misconduct, if any, committed by them has now been condoned by the employer. Complaint against the petitioners is not a ground pleaded by the respondentState for rejecting the claim of the petitioners for regularisation in service. In fact, initially the respondents took a plea that the writ petition is premature.
7. Another important issue which was debated during the course of hearing needs to be placed on record. It appears that while keeping the drivers, peon, cook and Protocol Assistants, on contract, the security and confidentiality of the movement of the Governor and the Chief Minister have been compromised. May be, this is an issue which can be raised in a Public Interest Litigation, I am inclined to record that such an arrangement is a serious breach of security protocol of the high dignitaries. And, this aspect has been completely overlooked by the respondents while rejecting the petitioners' claim for their "regularisation in regular payscale".
8. During the course of hearing, the learned State counsel suggested that a decision not to regularise the services of the 10 contractual employees appointed at Jharkhand Bhawan was already taken in the year, 2013. In this regard no such indication, not even a whisper, I find in any of the affidavits filed on behalf of the State. The decision, if any, taken in 2013 was not communicated to the petitioners and, thus, it cannot be used to the disadvantage of the petitioners. For this conclusion, I draw support from a passage in "Harla Vs. The State of Rajasthan"
reported in AIR 1951 SC 467:
8."................The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential."
9. After six affidavits, three by each one, and fulllength hearing on atleast three dates, the stand of the State, as reflected in its affidavits, must be held final and the State bound by the same. The counteraffidavit dated 24.03.2015, least to say, did not disclose all the material facts, and it was only when this Court passed an order on 27.01.2017 the material facts were pleaded by the respondents in the affidavit filed on behalf of the respondent no.2 on 01.03.2017. This writ petition was heard on 14.10.2014, when six weeks' time was granted to the State to file a counteraffidavit. The matter was heard on 28.09.2016, 30.09.2016 and 27.01.2017, when specific orders were passed by the Court, and on other occasions hearing was postponed at the instance of the respondentState. The reason, why I am narrating details of the proceeding, which otherwise may not be significant, would become clear from the discussions in the later part of the order.11
10. From the affidavits filed by the respondents, it does not appear how and why claim of the petitioners for regularisation was examined in the light of Regularisation Rules, 2015. This is not a prayer in the writ petition, nor this Court vide order dated 30.09.2016 directed the respondents to take a decision on the claim for regularisation of the petitioners under 2015 Rules.
On the contrary, the specific stand of the petitioners, as would appear from the writ petition and reiterated in paragraph no. 12 of the rejoinder affidavit dated 27.01.2017, is that the petitioners are regularly appointed contractual employees and, this appears to be the admitted position in the various letters and other documents produced by the parties in the present proceeding. In none of the affidavits filed on behalf of the respondents, I find even a remote suggestion that the petitioners are "irregularly appointed contractual employees". There is no whisper of a denial by the respondents of the stand of the petitioners that they were regularly appointed following the due processes, in support whereof, the petitioners have produced one of the advertisements which was issued on 02.02.2005 in the daily newspaper Hindustan Times. In fact, order dated 30.09.2016, which takes note of various official communications, is a pointer to the petitioners' specific stand. In the aforesaid facts, petitioners' case for regularisation of their services could not have been examined under 2015 Rules. Besides the above, it needs to be recorded that Regularisation Rules, 2015 is not the only scheme by the Government of Jharkhand for regularisation. Rules were framed for regularisation/appointment of the contractual employees, such as, for regularisation of doctors who were appointed on contract basis, with a condition of five years of continuous service. There are other instances also, some of the Resolutions find mention in the judgment in W.P.(S) No. 4019 of 2015 (Anil Kumar Sinha Vs. State of Bihar and Others) and batch cases, still, petitioners' claim has been dealt with under 12 2015 Rules. In fact, it was not necessary to frame a scheme for the petitioners' regularisation in service. Why is that so, I shall discuss now.
11. The minutes of meeting held on 30.07.2008 has been brought on record. In the said meeting, a decision was taken for regularisation of such employees who had completed satisfactory service of 5 years. Material portion of the said minutes of meeting is extracted below:
(vi) >kj[k.M Hkou esa lafonk ij fu;qDr dfeZ;ksa ds laca/k esa for foHkkx ds }kjk ijke'kZ fn;k x;k gS fd mPpre U;k;ky; ds fu.kZ; ds vuqlkj lafonk] nSfud ikfjJfed] vkdfLed :i ls vFkok rnFkZ :i ls dksbZ fu;qfDr u dh tk; rFkk iwoZ ls fu;qDr ,sls dfeZ;ksa dks] ftudh fu;qfDr voS/k :i ls fcuk Lohd`r in vkSj fcuk fjfDr dh gqbZ gS] lsok esa lek;ksftr ugha fd;k tk;A eq[; lfpo }kjk vkns'k fn;k x;k fd mPpre U;k;ky; ds bl U;k; fu.kZ; dh leh{kk foHkkxh; Lrj ij djds iqu% izLrko izLrqr fd;k tk;A lkFk gh >kj[k.M Hkou esa dk;Zjr ,sls deZpkfj;ksa ftudh lsok fiNys 5 o"kksZa ds nkSjku larks"ktud jgh gS] rFkk ftudh fu;qfDr esa fofgr izfdz;kvksa dk ikyu gqvk gS] ds fofu;eu dh dkjZokbZ dh tk; rFkk blls iwoZ muds lsok vfHkys[kksa dh iw.kZ tkap dj yh tk;A English Translation:
"Advice of the Finance Department with respect to the employees appointed on contract in Jharkhand Bhawan is that as per decision of Supreme Court no appointment should be made on contract, daily wages, casual or adhoc basis and those who were appointed illegally without sanctioned post and without vacancy, should not be absorbed in the service. It is ordered by the Chief Secretary that after examining the verdict of Supreme Court at departmental level, fresh proposal shall be moved. Also, those working in Jharkhand Bhawan, whose services have been satisfactory in the last 5 years, and whose appointment has been made following the prescribed procedure, action be taken for their regularisation, after verifying their service records".
12. The aforesaid decision taken in the meeting held on 30.07.2008 reflects that the decision in Umadevi case was discussed and, as a consequence thereof, a decision was taken not to regularise those employees in service who were illegally appointed on the posts which were neither sanctioned nor vacant at the time of their appointment. The decision taken in the meeting held on 30.07.2008 reflects a conscious decision to 13 initiate a process for regularisation of those appointees who had completed five years at Jharkhand Bhawan. The respondents have not disowned this decision. More importantly, can they decide to overlook a decision taken in a meeting of the Secretaries and the Chief Secretary to the Government. This decision contained a positive direction to take steps for regularisation. It was not the decision, to "consider" the claim of the appointees for regularisation. This was followed by letter dated 06.08.2008 which, in no uncertain terms, records that appointment of the petitioners was on sanctioned vacant posts; it was made in the exigency of work and the appointments were made following due processes. There is a reference of other two letters by the Cabinet Secretariat and Coordination Department by which approval for payrevision of the contractual employees at Jharkhand Bhawan was accorded. The Resident Commissioner in its letter dated 06.08.2008 has categorically reiterated that the State Government was informed about all these appointments from time to time.
13. In the counteraffidavit, the respondents have not challenged the correctness of the facts pleaded by the petitioners in the writ petition. It is admitted that there are permanent staff, sanctioned contract posts and sanctioned regular posts at Jharkhand Bhawan, and the petitioners are working on these posts. At the cost of repetition, it is recorded that the petitioners are paid city allowance which is calculated @ 50% of (Basicpay + Gradepay). The respondents have asserted that this allowance is not paid to the regular employees of Jharkhand Bhawan. For contractual employees, by orders of the Finance Department, dearness allowance is paid and it is revised from time to time. Presently, it is paid @ 72% for which an order was issued by the Cabinet Secretariat and Coordination Department, Government of Jharkhand. Drivers and peons get annual dress allowance @ Rs.2500/ per month and all the petitioners are entitled for 14 traveling allowances and medical benefits. The Protocol Assistants are reimbursed Rs.5,000/ for purchase of a mobile phone and they get Rs.1,000/ per month for their mobile bills. It is stated that the drivers and Protocol Assistants are also entitled for conveyance.
14. The original record which was produced in the Court revealed that a proposal was prepared by a "Section Officer", for regularisation of the petitioners under 2015 Rules, on which the Finance Secretary and others gave their opinion. None of the issues, which I have referred to, were incorporated in the said proposal. Perhaps, no one even cared to read the records. It appears that on an assumption that all contractual employees are irregularly appointed, a proposal for regularisation of the petitioners under the Regularisation Rules, 2015 was prepared. This fatal mistake has resulted in exclusion of relevant materials from consideration and finally, a decision was taken which is based on irrelevant consideration, that is, continuous ten years' service as on 01.04.2006 as irregularly appointed employee. The entire decision making process was vitiated on account of the aforesaid error. As a consequence thereof, the decision reflected in letter dated 18.01.2017 is liable to be quashed.
15. The sheer number of judgments of the Supreme Court explaining the real import of the decision in Umadevi case indicates, how the judgment in Umadevi has been misinterpretated by the employers. The Supreme Court finally in one of the cases observed that Umadevi judgment cannot become a licence for exploitation by the State and its instrumentalities. While holding that the constitutional Courts cannot exercise jurisdiction under Article 226 or Article 32 of the Constitution of India to compel the State or to enable the State to perpetuate an illegality, the Supreme Court had in mind the mandate of the equal opportunity for all in the public employment. It created a 15 distinction between an "irregular" and "illegal" appointment, and the exception created in paragraph no. 53 of the reported judgment recognized a right of the irregularly appointed employees. However, Umadevi is not an authority for the proposition that the executive or the legislature cannot frame a scheme for regularisation [refer "State of Jammu and Kashmir and Others Vs. District Bar Association Bandipora" reported in (2016) SCC Online SC 1435], and it is also not an authority to a proposition that an employee, appointed on contract or daily wages, cannot seek a direction for regularisation in service [refer "Nihal Singh and Others Vs. State of Punjab and others" reported in (2013) 14 SCC 65].
16. In Nihal Singh, in the wake of largescale disturbances in the State of Punjab in the 1980s, a decision was taken to appoint SPOs for raising additional force for deployment in the banks. SPOs were to be paid honorarium of Rs. 15 per day which was subsequently enhanced to Rs. 30 per day. Payment was to be made by the respective banks where SPOs were deployed. Claim of these persons, pursuant to an order of the High Court, for regularisation in service was declined on the ground that they were not employees under the State. They again approached the High Court which dismissed the Civil Writ Petition. Before the Supreme Court, a plea was raised that in absence of sanctioned posts SPOs cannot be regularised in service. Judgment in Umadavi was pressed on behalf of the State. The controversy was dealt with by the Supreme Court in paragraph nos. 23 and 24 of the reported judgment, which are reproduced below:
"23. Even going by the principles laid down in Umadevi (3) case, we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State.
24. In our opinion, the initial appointment of the 16 appellants can never be categorised as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us."
17. The petitioners have established facts, which put them on a better footing than the SPOs in Nihal Singh case. In the present case, various correspondences between the Resident Commissioner and the Cabinet Secretariat and the Coordination Department reveal that on account of disinclination of the aspirants seeking appointment to accept assignments at Delhi, which involves a very high cost of living, a decision was taken to make appointments on contract basis. There were permanent posts and permanent posts on contract against which these appointments were made. Due processes in making appointments were observed, is the stand of the petitioners who have produced one of the advertisements issued in daily newspapers at Delhi, and this stand of the petitioners is not disputed by the respondents. The Resident Commissioner in its letter dated 06.08.2008 has recorded that the State Government was informed of these appointments from time to time and these appointments were made following due processes. It is not the case pleaded by the respondents that these appointments were in breach of the recruitment rules or, that the petitioners do not fulfill the minimum eligibility criteria under the rules, which, of course, were not produced by the respondents. The petitioners have been paid various allowances and the State exercises its administrative and disciplinary control over them in terms of instructions issued by the Finance Department dated 05.07.2002. This is the specific stand of the State through the affidavits filed in the present proceeding. In fact, appointment of the petitioners is not under challenge or doubted by the respondents. There is no allegation of any favoritism, nepotism or violation of Article 14 and 16 of the 17 Constitution. In the aforesaid facts, I am inclined to hold that the petitioners were appointed through a fair process and they do not fall under the category of irregular appointees.
18. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, and the ratio of a decision must be understood in the background of the facts of that case. But, when foundational facts in two cases are found similar and one of the issues in the previous case decided by the Supreme Court is identical to the controversy raised in the other case, like the one presented by the instant case, Article 141 of the Constitution of India in all its potent shall require a similar decision on the said issue. While relying on the decision in Nihal Singh case, Mr. Indrajit Sinha, the learned counsel for the petitioners rightly invoked Article 141, on the issue of regularisation of an employee who was appointed following due processes.
19. The respondents' affidavits have completely exposed emptiness of their stand. In its affidavit dated 01.03.2017, the respondent no.2 (who is none else but, the Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, who primarily is responsible for framing of the Rules and initiating all recruitments) has pleaded that total sanctioned post of P.As. in the State is 254, out of which 250 posts are vacant. For regular appointment of Stenographers, advertisements were issued in the year, 2012 and 2015, however, against 487 advertised vacancies, only two posts could be filledup. For the clerical posts i.e. Bill Clerk, Cashier, Typist etc. which are now known as UDC/LDC, in the recruitment exercises held in the year, 2012 and 2015 for appointment on 344 posts, only 22 candidates were found eligible. In respect of the drivers, peons and Protocol Assistants, the affidavit filed by respondent no.2 is completely silent. The respondents do not disclose a road map, how these appointees 18 appointed on contract would be dealt with in future. Suitable candidates for appointment at Jharkhand Bhawan are hard to find. Previous recruitment exercises for few posts did not yield any result and for other posts no exercise was undertaken in the past 10 years. Definitely, this would not be the policy of the Government of Jharkhand to continue the contractual employees, irrespective of the fact that specific posts were sanctioned and created, till they attain the age of superannuation, and thereby deny them the benefits of regular service. Eligibility and suitability of the petitioners are not in dispute. Proposal for their regularisation forwarded by the Resident Commissioner is testimonial to their satisfactory service. At one point, the learned State counsel indicated that the original record reveals that a 3Member Committee for regularisation of the contractual appointees at Jharkhand Bhawan is proposed. Be that as it may, I am not inclined to send the matter back for reconsideration. A remand to an authority, which sits with a closed mind, would be a futility. Proposal for constitution of a committee to take a decision on regularisation, after a decision has already been taken, does not appeal to reason.
20. The next issue is, can this Court issue a direction for "regularisation in regular payscale"? Strictly speaking, regularisation in service is an issue which falls predominately within the domain of the executives and legislature, however, there is no dearth of instances where the Courts have stepped in and passed an order for regularisation. The mandamus is a very wide remedy which must be easily available "to reach injustice wherever it is found" [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V. R. Rudani and Others" (1989) 2 SCC 691]. The present is a case of such a nature.
21. In the peculiar facts of the case, following the 19 discussions in the above paragraphs, a direction is issued to the Chief Secretary, Government of Jharkhandrespondent no. 1 to issue appropriate directions to the concerned department(s) to initiate a process for verification of the certificates, medical examination etc. of all the petitioners, for regularising their services on the "posts" and in the "payscale" which were sanctioned under Resolution dated 28.07.2001. The process must be completed on or before 31.05.2017, whereafter the petitioners shall be paid regular payscale and allowances, as admissible. The petitioners who have been appointed against permanent posts shall remain on probation, if required under the extant rules and they shall be treated as permanent employees only on confirmation of their services. In so far as, the petitioners who were appointed against "permanent posts on contract" such as, driver, cook, peon etc. the respondents shall take a decision on the conditions for their permanent absorption in service as regular employees, within six months.
22. The writ petition is allowed, in the aforesaid terms.
(Shree Chandrashekhar, J.) In the High Court of Jharkhand Dated: 03/04/2017 A.F.R. R.K./SI/Sudhir/Tanuj/Amit