Jharkhand High Court
The State Of Jharkhand vs Mahendra Gope Son Of Sri Chakkan Gope on 7 October, 2021
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.506 of 2019
1. The State of Jharkhand.
2. The Principal Secretary, Department of Home, Government of
Jharkhand, P.O. & P.S. Dhurwa, District-Ranchi.
3. The Inspector General of Prison, Government of Jharkhand, P.O. &
P.S. Dhurwa, District-Ranchi.
4. The Principal, Jail Training Institute, New Central Jail, P.O.-
Reformitary School, P.S.-Sadar & District-Hazaribagh.
... ... Respondents/Appellants
Versus
1. Mahendra Gope son of Sri Chakkan Gope, resident of Village-
Champa Nagar, Nawadih, P.O. Tirla, P.S. Ichak, District-
Hazaribagh.
2. Mahabir Prasad Son of Sri Fagu Mahto, resident of Village-Khurd
Mandai Kasidih, P.O. Reformitary, P.S. Sadar, District-Hazaribagh.
3. Md. Jainul Ansari Son of Late Aniul Haque, resident of Village-
Matwari, P.O.-G.P.O., P.S. Sadar, District-Hazaribagh.
4. Inder Paswan, Son of Sri Ram Das Paswan, resident of Village-
Karara, P.O. Karara, P.S. Ghoshwari, District-Patna (Bihar).
...... Petitioners/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Ashutosh Anand, AAG-III
For the Respondents : Mr. Gaurav Rai, Advocate
Mr. Rajesh Kumar, Advocate
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ORAL JUDGMENT
07/Dated 07th October, 2021 I.A. No.7313 of 2019:
1. This interlocutory application has been filed for condoning the delay of 211 days, which has occurred in preferring this appeal. [2]
2. Heard learned counsel for the appellants.
3. Having regard to the averments made in this application, we are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation.
4. Accordingly, I.A. No.7313 of 2019 is allowed and the delay of 211 days in preferring the appeal is condoned.
L.P.A. No.506 of 2019:
5. The instant intra-court appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 03.12.2018 passed by the learned Single Judge of this court in W.P.(S) No.4817 of 2012 whereby and whereunder the order passed by the administrative authority dated 18.01.2012, by which the writ-petitioners have been reverted from regular employees to daily wagers, has been quashed by allowing the writ petition.
6. The brief facts of the lis which is required to be enumerated read as hereunder:
The writ-petitioner Nos.1, 2 & 3 were working on daily wages, were appointed as mess servants and the writ-petitioner No.4 was appointed as Adesh Pal by the order of the competent authority, i.e., Principal, Jail Training Institute, Hazaribagh. The services of the writ- petitioners were confirmed in pursuance to the order dated 13.02.1999 passed by the respondent No.4. The writ-petitioners, thereafter, have been granted pay scale along with medical allowances and house rent allowances. The writ-petitioners, while continuing as such, had represented before the respondent authorities for grant of benefit of [3] upgradation in pay-scale under the Assured Career Progression Scheme which was considered by the authority, however, the claim of the writ- petitioners has been rejected holding that they are not entitled for the benefit of upgradation of pay-scale under the Assured Career Progression Scheme rather they have been held entitled to daily wages for the work done as per the letter dated 18.01.2012. The writ- petitioners being aggrieved with the aforesaid decision of the State authority have approached to this Court by invoking the jurisdiction of this Court under Article 226 of the Constitution of India by taking the ground that the writ-petitioners have been working since 1987, 1992 and 1994 respectively and after rendering satisfactory services they have been permanently absorbed as regular employees and when they have claimed for the benefit of upgradation in pay-scale, the authorities of the State Government came out with the impugned decision by reverting them in the capacity of daily wagers.
The respondent-State of Jharkhand took the plea that all the four writ-petitioners were appointed by the then Principal, Jail Training Institute, Hazaribgh but not approved procedure was followed for their appointment, as such, have been held not entitled for the benefit of Assured Career Progression Scheme.
The cases of the writ-petitioners have been considered afresh in order to scrutinize as to whether they are entitled to hold the post under the permanent establishment, in course thereof, it has been found by the State authorities that their appointments since was not made in accordance with the applicable law, therefore, the decision has been taken for reverting them in the capacity of daily wager. [4]
The writ court had appreciated the argument advanced on behalf of the parties and considering the judgment rendered by the Hon'ble Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors., (2006) 4 SCC 1; State of Karnataka & Ors. vs. M.L. Kesari & Ors., (2010) 9 SCC 247 and Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors., (2018) 8 SCC 238, had quashed the impugned decision of the authorities by allowing the writ petition, which is the subject matter of the instant intra-court appeal preferred by the State of Jharkhand.
7. Mr. Ashutosh Anand, learned AAG-III appearing for the respondents/appellants has submitted that the learned Single Judge has erred in passing the impugned judgment which has been passed without appreciating the fact that the appointments made in favour of the writ- petitioners are illegal and therefore, the judgment rendered either in the Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra) or in the State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) or in the Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra) will not be applicable, as such, the impugned judgment is not sustainable in the eye of law.
Further ground has been agitated that the appointments made in favour of the writ-petitioners since was not by the competent authority, therefore, appointments will be held to be illegal and hence, they were not entitled to be regularized in the regular establishment of the State Government and in order to rectify the same the State Government had taken the impugned decision which suffers from no infirmity but without appreciating the aforesaid aspect of the matter, the impugned [5] judgment has been passed by the learned Single Judge by quashing and setting aside the impugned decision of the authority.
8. Per contra, Mr. Rajesh Kumar, learned counsel for the writ-
petitioners/respondents has submitted that there is no infirmity in the impugned order rather according to him, the learned Single Judge has appreciated the factual aspect in detail and after taking into consideration the ratio laid down by Hon'ble Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra); State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra), the impugned judgment has been passed, therefore, the same may not be interfered with.
9. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. This Court, after going through the factual aspect and after appreciating the document available on record, is of the view that the issue which requires to be answered by this Court is as to whether the initial appointment made in favour of the writ-petitioners were illegal or irregular because if the appointment will be treated to be illegal no advantage will be accrued to the writ-petitioners on the basis of the proposition laid down by the Hon'ble Apex in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra); State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra) but if the initial appointment of the writ-petitioners will be treated to be irregular then certainly the case of the writ-petitioners will be required to be [6] considered in view of the ratio laid down by the Hon'ble Apex Court in the aforesaid judgments.
10. This Court, in order to scrutinize the aforesaid issue, deems it fit and proper to refer the judgment rendered by the Hon'ble Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi (3)and Ors. (supra); State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra) basis upon which the learned Single Judge has come to the conclusive finding by quashing and setting aside the impugned decision of the administrative authority by allowing the writ petition.
11. There is no dispute about the fact that there cannot be any back door entry in the appointment in the capacity of ad-hoc appointment and in order to deal with such situation, the Constitution Bench of Hon'ble Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra) has considered this aspect of the matter and came out with the ratio that there cannot be any back door entry since the same amounts to be in the teeth of the provisions of Articles 14 and 16 of the Constitution of India, but, however, an exception has been carved out as under paragraph-53 of the aforesaid judgment whereby and whereunder the Constitution Bench of the Hon'ble Apex Court has been pleased to hold by way of exception that if the ad-hoc appointees are working continuously for ten years without interference of any interim order by Court of Law and if they have been appointed against the sanctioned post, the State Government, if they are in requirement of the services of such employees, is required to regularize them in service by way of one time exercise by completing the same within a period of [7] six months from the date of the judgment. Paragraph-53 of the said judgment is being reproduced hereinbelow:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
Subsequently, the Hon'ble Apex Court has delved upon in State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) by dealing with the difference in between the regular employment and illegal employment. It has been clarified that the appointment which has been made not against the sanctioned post will be considered to be illegal appointment, however, appointment made without following the procedure, i.e., without issuing an advertisement even by the competent authority, such appointments will be said to be irregular appointment and in such circumstances by taking into consideration the ratio laid down at paragraph-53 of the judgment rendered in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra), services is required to be regularized.
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12. Further, the issue has crept up before this Court after creation of the State of Jharkhand pertaining to the cut-off date for the purpose of counting the period of ten years because in the judgment rendered in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra) the cut-off date for counting the period of ten years has been fixed up the date of pronouncement of judgment and since the State of Jharkhand has been created w.e.f. 15.11.2000 and from that date till the date of pronouncement of judgment in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra) the period of ten years was not completing. The same has been clarified by the Hon'ble Apex Court in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra) whereby and whereunder it has been clarified that the period of ten years so far as the State of Jharkhand is concerned, will be counted from 15.11.2000, i.e., the date of creation of the State of Jharkhand.
13. Thus, in sum and substance, the ratio which requires to be considered in this case as has been laid down in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra), the condition for regularization of the ad-hoc employees as per the ratio laid down under paragraph-53, is by way of exception, therefore, we are required to examine the fact as to whether the appointment of the writ-petitioners will be treated to be illegal or irregular?
14. Learned counsel for the State-appellant has vehemently argued that the appointment made in favour of the writ-petitioners are illegal and not irregular, therefore, there is no reason for applicability of the judgment [9] rendered in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra).
15. This Court, in order to examine that fact has considered the appointment letters issued in favour of the writ-petitioners, i.e., on 28.11.1987, 22.07.1992 and 01.10.1994 respectively, from which it is evident that the writ-petitioners have been appointed by the oder of the Principal, Jail Training Institute, Hazaribagh.
It further appears from the document appended to the writ petition issued under the signature of Assistant Inspector General, Prison, Bihar dated 06.11.1979 whereby and whereunder it has been communicated to the Principal, Jail Training Institute, Hazaribagh informing him that the Principal Prison Training Institute, Hazaribagh is the competent authority for appointment of the Bigular. Subsequently, the appointment of the writ-petitioners were confirmed as would be evident from the order dated 13.02.1999, appended as Annexure-4 to the writ petition. The pay of the writ petitioners have been fixed on the revised pay-scale on the basis of the recommendation of 6th Pay Revision Committee implemented w.e.f. 01.01.2006 as would appear from Annexure-5 to the writ petition.
16. It appears from the communication dated 17.08.2010 appended as Annexuer-6 to the writ petition issued under the signature of Principal, Prison Training Institute, Hazaribagh by which the due information has been furnished to the Inspector General of Prison, Jharkhand, Ranchi for consideration of their cases for grant of upgradation of pay-scale under the Assured Career Progression Scheme. It further appears from the said communication that the writ-petitioners have been found to [10] discharge their duties continuously, i.e., without any break in service and service book has also been opened as also it has been stated therein that the appointment have been made against the sanctioned post and the copy of the details of the sanctioned post has also been appended for perusal by the concerned authority, i.e., Inspector General of Prison.
17. It further appears from Annexure-7 dated 18.01.2012 that one Sri Indranath Kumar has been appointed against the sanctioned post basis upon which recommendation has been made for consideration of his case for grant of upgadation in pay-scale under Assured Career Progression Scheme.
18. This Court has also found from Annexure-9 dated 21.03.2011 that the details about the performance of the service has been made and one of the appointment of Sri Indranath Kumar has been made on compassionate ground while the other appointments have been approved by the Inspector General of Prison.
19. It appears to this Court that the claim of the writ-petitioners has been placed before the competent authority for grant of upgradation under Assured Career Progression Scheme. The decision impugned dated 23.02.2012 has been passed by reverting them in the capacity of daily wager.
Thus, it is evident from the document appended to the writ petition that the services of the writ petitioners have been made against the sanctioned vacant post and they have been found to be working since 1987, 1992 and 1994 respectively.
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20. Thus, there is no dispute about the fact that the writ petitioners since have been appointed against the sanctioned post and are working continuously for more than ten years without any aid of interim order, therefore, we are not hesitant in holding that the case of the writ petitioners are coming under the fold of paragraph-53 of the judgment rendered in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra).
21. Further, it is very surprising that until the cases of the writ petitioners have not been forwarded for grant of upgradation of pay-scale under the Assured Career Progression Scheme the authorities have not proceeded for taking any action rather they have proceeded to take action by reverting them in the daily wager only when the immediate controlling authority has recommended their cases for grant of upgradation in pay scale and at that stage, instead of granting the benefit of upgradation in pay-scale the respondent authorities came out with the impugned decision on 23.02.2012, therefore, according to our considered view, what has been submitted by the learned counsel for the State-appellant that the services of the writ-petitioners are illegal, is not acceptable to this Court for the reason aforesaid.
22. Further, the contention made by the learned counsel for the State-
appellant that the judgment rendered by the Hon'ble Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra) is not applicable which according to our considered view, is also not acceptable, for the reason that since the appointment of the writ-petitioners as daily wagers way back in 1987, 1992 and 1994 have been made against the sanctioned post and they have been working [12] continuously for more than ten years without any aid of interim order passed by the Court of Law and further their services have also been confirmed by the Principal, Prison Training Institute and not only that their service book have also been opened and they have been given the benefit of pay-scale on the basis of the recommendation of the 6th Pay Revision Committee which goes to clarify that the services of the writ- petitioners have rightly been taken into regular establishment of the State Government and that is the reason they have been given the benefit of upgradation in pay scale by virtue of the implementation of 6th Pay Revision Committee.
23. We, after going across the order passed by the learned Single Judge has found therefrom that the learned Single Judge has considered the fact as has been dealt with by this Court hereinabove in detail and applying the ratio laid down by the Hon'ble Apex Court in Secretary, State of Karnataka & Others vs. Uma Devi (3) and Ors. (supra); State of Karnataka & Ors. vs. M.L. Kesari & Ors. (supra) and in Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors. (supra), is correct in interfering with the administrative decision of the authority which according to the considered view of this Court requires no interference. Accordingly, the instant appeal fails and stands dismissed.
24. Pending interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saurabh/ A.F.R.