Jharkhand High Court
Shyama Pada Mandal & Ors vs State Of Jharkhand & Ors on 24 November, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2953 OF 2012 with W.P.(S) No. 7192 OF 2011 with W.P.(S) No. 2582 OF 2012 with W.P.(S) No. 3068-2012 with W.P.(S) No. 3090 OF 2012 Mira Kumari and others ... Petitioners [in W.P.(S) No. 2953 of 2012] Shyama Pada Mandal and others ... Petitioners [in W.P.(S) No. 7192 of 2011] Sushil Kumar Mishra and others ... Petitioners [in W.P.(S) No. 2582 of 2012] Gouranga Prasad Ghosh and others ... Petitioners [in W.P.(S) No. 3068 of 2012] Purna Chandra Pal and others ... Petitioners [in W.P.(S) No. 3090 of 2012] Versus State of Jharkhand and others ... Respondents [in all cases] CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioners : Mr. Bhanu Kumar, Advocate.
Ms. Bharti Kumari, Advocate.
Ms. Pinky Tewary, Advocate
For Respondents : Mrs. Chandra Prabha, SC-IV.
Mr. Vishal Kumar Rai, JC to SC IV
C.A.V. on 12/07/2017 Pronounced on 24 /11/2017
Dr. S.N.Pathak, J. As common question is involved in all these writ petitions, they have been taken up together and are decided by this common order.
2. Heard learned counsel for the parties in all these writ petitions.
3. Petitioners, who were working as non-formal instructors under the Education Department, have prayed for a direction upon the respondents to absorb them against suitable posts under the Government of Jharkhand as has been done in the case of non-formal supervisors by the State of Bihar.
4. Factual exposition as has been delineated in the writ petitions are that in the year 1981, the erstwhile State of Bihar implemented centrally sponsored Scheme to impart education to the students comprising age group of 6 to 14 years who were deprived from formal education. Various centres were established in different Districts of the State and all were manned by non-formal instructors including the petitioners named above and non-formal supervisors and were paid honorarium. Initially the Instructors were appointed and selected at district level and, thereafter, a formal process of appointment was started in phasewise manner from the year 1981 onwards. Upto the year 1984, the non-formal instructors were appointed by the Department of Education and, thereafter a Board/ Committee was duly constituted RC 2 consisting of District Level Officers who, after following due process, appointed these petitioners. During the year 1984 - 85, the Department of Adult and Non- formal Education was established by the Government of Bihar for appointment of non-formal instructors and other allied works. The State Government time and again changed policy and service conditions of the non-formal instructors and supervisors. After reorganisation of the State in the year 2000, different projects under non- formal eduction were decided to be closed, as a result of which all the employees including the petitioners were rendered jobless. The Supervisors and Instructors time and again moved before the respondents for their absorption. When their claim were not considered, they preferred writ petition before the Hon'ble Patna High Court vide C.W.J.C. No. 8110 of 2001 which was disposed of on 02.07.2009 directing the respondents to complete process of absorption of erstwhile Supervisors. In compliance of said order, a Resolution dated 12.01.2010 was issued by the Government of Bihar to absorb services of non-formal Supervisors against the regular, vacant and sanctioned Class-III posts and thereafter, services of all non- formal supervisors have been absorbed against the sanctioned and vacant posts under various departments by the State of Bihar and all of them are getting regular pay scale and salary.
Since service of non-formal instructors who were similarly situated to the extent that they also imparted non-formal education under the centrally sponsored Scheme and their services were not absorbed, moved the Hon'ble Patna High Court by filing C.W.J.C. No. 8418 of 2010, which was allowed on 21.04.2011 directing the respondents authorities to absorb those non-formal instructors positively within a period of four months. In Civil Appeal No. 10541/2011 arising out of SLP (Civil) No. 10016/2009, the Hon'ble Supreme Court has been pleased to direct the authorities for absorption of services of similarly situated persons against Class-IV posts.
5. The case of the petitioners is that after re-organisation of the States, the petitioners worked as non-formal instructors within the territory falling under the State of Jharkhand and though their counterparts in the State of Bihar have been absorbed but they have been denied the benefits of absorption like the non-formal supervisors and instructors and as such, have come up before this Court for redressal of their grievances.
6. Mr. Bhanu Kumar, learned counsel submits that petitioners were working as non-formal instructors under the Education Department and have worked without any complaint from any quarter. They also possess requisite qualification and many of them have received appreciation certificates. Mr. Bhanu Kumar submits that non-
RC 3 formal supervisors in the State of Bihar have already been absorbed by the decision of Government of Bihar. Learned counsel further submits that pursuant to the decision of the Hon'ble Patna High Court dated 21.04.2011 in C.W.J.C. No. 8418 of 2010, the services of the counterparts of petitioners who were working as Instructors under the non-formal education are likely to be absorbed by the State of Bihar and as such, the petitioners, who have been working in the State before bifurcation, may also be absorbed against the suitable posts under the Government of Jharkhand. Learned counsel further submitted that the petitioners cannot be denied the benefits provided to their counterparts in the State of Bihar in view of the provisions of Bihar Reorganisation Act, 2000 and also in view of provisions of Articles 14 and 16 of the Constitution of India. Mr. Bhanu Kumar further submitted that in a situation when the erstwhile employer - State of Bihar has already absorbed services of the Supervisors and is going to absorb services of the Instructors, there is no justification to debar the petitioners who have been allocated State of Jharkhand. Action of the respondents is in violation of natural justice and fair play and as such, the prayer of the petitioner is fit to be allowed. Mr. Bhanu Kumar further submitted that non- absorption of the petitioners who happened to be retrenched employees of the State of Bihar, is against the Resolution No. 106, dated 05.09.1979 which lays down that the persons who have rendered services for minimum six months, should be absorbed against Class-III or Class-IV posts.
7. Per contra counter affidavit has been filed.
It is contended on behalf of the respondents that the petitioners have worked under the centrally sponsored Scheme as a part time instructors for two hours per day for which fixed honorarium @Rs.105/- per month were being paid up to the year 1994, which was thereafter enhanced to Rs.200/- per months. Learned State counsel further submitted that the petitioners were never been appointed against any post or in any scale of pay rather they were selected locally as volunteers for teaching at Non-Formal Education Center for two hours per day till prescribed period of the Center. Petitioners were never Government servants. The work of Instructors cannot be termed as employment under the State Government but it was like a social service which is evident from the selection letter itself. The non-formal education scheme was a time bound centrally sponsored scheme, which was wound up by the Government of India with effect from 01.04.2001 and pursuant thereto, the State of Jharkhand decided to close down the said Scheme with effect from 01.04.2001. Learned State counsel further submitted that since State of Jharkhand is not a party in the Judgments cited by the petitioners and as such, those orders passed in the case of the counterparts in the State of Bihar is not applicable to the petitioners. State of RC 4 Jharkhand is not obliged to follow the decision of State of Bihar taken after bifurcation of the State in view of Bihar Reorganisation Act, 2000. Learned counsel emphatically submitted that there is no merit in the instant writ petition and the claim of the petitioners for their absorption in government service against vacant sanctioned post is not legally maintainable and will open flood gate. Learned State counsel further submitted that the State of Jharkhand has clearly taken a policy decision not to absorb/ regularise the non-formal part time supervisors in Jharkhand which is evident from the Order dated 17.03.2015 in Memo No. 133(Vidhi), issued by the Primary Education Directorate, Ranchi which has been brought on record by way of affidavit.
Learned State counsel has further drawn attention of this Court towards the order passed in W.P.(S) No. 689 of 2016, extract whereof reads as under:
"relief granted by the High Court Patna in L.P.A. No. 1489 of 2011 shall be restricted to those who had approached the High Court. It was specifically ordered by the Supreme Court that the Order passed by the High Court shall not apply to any fresh case instituted either before the High Court or the Hon'ble Supreme Court (order dated 26.02.2016 passed in S.L.P.(C) No. 32079 of 2015) no doubt, the present petitioners have approached this court on 08.02.2016 i.e. prior to the aforesaid order passed by the Hon'ble Supreme Court, the benefit of order passed by the Hon'ble Patna High Court cannot be extended to the present petitioners. Other persons, who agitated their claim decades ago and finally succeeded, stand on different footing than the petitioners. The petitioners who slept over the matter and did not approach the court for years together cannot claim benefit of some order passed in some other case, several years after their termination from service."
Learned State counsel further strenuously urges that the order passed in L.P.A. No. 1489 of 2011 is not applicable in case of State of Jharkhand because part time supervisors have not been rehabilitated and policy decision has already been taken in this regard by the Government of Jharkhand. The petitioners and others were engaged in centrally sponsored Scheme as a part time engagement for 2 hours per day which, in no case, case can be adjusted against the sanctioned permanent post.
Learned counsel has further placed reliance in the Judgment passed in the case of State of Rajasthan V. Daya Lal reported in (2011) 2 SCC 429, Para-12 thereof reads as under:
"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals.
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue direction for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been RC 5 appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend tnhat the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees.
The right to claim a particular salary against the State must arise under a contract or under a statute.
8. Having gone through rival submission of the parties, this Court is of the considered view that no interference is called for in the instant writ petition. The petitioners have not been able to make out a case for their regularisation/ absorption against a sanctioned post. Merely rendering of part time work does not entitle the petitioners to seek regularisation as they were not working against any sanctioned post. The Judgment of the Hon'ble Patna High Court does not come to their rescue in view of the decision of the Hon'ble Apex Court referred hereinabove which clearly shows that it will not be given effect to in further cases. However, taking sympathetic view of the matter, since petitioners have worked for long period, it is left open to them to file representation before the respondents - Director, Primary Education, Government of Jharkhand. If such a representation is filed by the petitioner within a period of six weeks from today, the respondents concerned shall consider their individual cases sympathetically within a period of twelve weeks RC 6 thereafter considering period of services rendered by them and taking into consideration that other similarly situated persons have been regularised in State of Bihar.
9. With the aforesaid observations and directions, this writ petition stands disposed of.
All pending Interlocutory Applications also stand disposed of.
(Dr. S.N. Pathak, J.) High Court of Jharkhand at Ranchi Dated: November 24, 2017 RC' RC