Amresh Kumar Jha vs State Of Jharkhand

Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Kishore Kumar Singh, learned counsel for the respondent-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard on merit.

The petitioner has preferred this writ petition for quashing the order dated 13.11.2017 contained in Annexure-7 of the amended writ petition,

whereby, the petitioner has been terminated from the service. The prayer for reinstatement in service with all consequential benefits has also been

made in the writ petition. The appellate order dated 08.05.2019, contained in Annexure-11 of the amended writ petition is also under challenge in the

writ petition.

The petitioner was initially working on muster roll as a daily wager since 1996 and after full satisfaction with the work of the petitioner and smooth

functioning of the office, he was allowed to work as a Treasurer Guard on the sanctioned vacant post by the Superintending Engineer vide letter dated

04.01.2000. The services of the petitioner was confirmed on the sanctioned and vacant post by the competent authority vide letter dated

31.01.2000.The petitioner was transferred to the office of the Executive Engineer, Kolhan Vikash Path Pramandal, Chaibasa on the vacant post of

Treasurer Guard vide letter dated 30.03.2000 issued by the Superintending Engineer. The petitioner was having the requisite qualification and pursuant

to that the petitioner was promoted to the post of Correspondence Clerk vide letter dated 31.03.2000. The petitioner passed Hindi Noting & Drafting

Examination and also the Accounts Examination in the year 2006. On an anonymous information, an enquiry was conducted behind the back of the

petitioner at the time when he was posted at Garhwa. On the basis of the enquiry conducted against the petitioner by the Superintending Engineer,

Road Construction Department, Road Division, Chaibasa, the petitioner was given notice dated 09.12.2015 by the Engineer-in-Chief, Road

Construction Department, Ranchi to explain about his appointment. Pursuant to that explanation, the petitioner filed his detailed reply on 10.07.2017.

The services of the petitioner was terminated vide order dated 13.11.2017, contained in Annexure-7. The petitioner filed an appeal against the

dismissal order on 23.11.2017 before the Secretary of the concerned Department.

The Engineer-in-Chief, Road Construction Department, Ranchi has passed the order on appeal against the petitioner on 08.05.2019, contained in

Annexure-11, whereby, the termination order has been confirmed.

In these backgrounds, Mr. Saurabh Shekhar, learned counsel for the petitioner assailed the impugned orders on the ground that the petitioner was

appointed on vacant and sanctioned post by the competent authority. By way of drawing the attention of the Court to the impugned order dated

13.11.2017, whereby, punishment of termination of service has been issued, he submits that in paragraph 3 of the said order, it has been observed that

without following the due process the appointment of the petitioner has been made and in paragraph 7 of the said order, it has been said that the

appointment of the petitioner was found to be illegal as it was not done by the competent authority. He further submits that paragraphs 3 and 7 of the

said impugned order are contradictory itself. He also submits that in view of the rule framed by the Government of Jharkhand dated 13.02.2015, the

definition has been prescribed therein as to what will be the illegal appointment and what will be the irregular appointment. He further submits that in

the enquiry report also, many procedure of appointment of the petitioner has been described, wherein, it has been affirmed that the petitioner was

appointed on vacant and sanctioned post and the petitioner's services was confirmed. He also submits that in view of Annexure-12 of the amended

writ petition, which is a document which has been obtained by the petitioner under Right to Information Act, it has been provided that the said enquiry

has been done against 106 employees. However except the petitioner, rest of the employees have been allowed to work and only the petitioner's

services has been terminated. He further submits that the case of the petitioner is fully covered in view of the judgment rendered by the Division

Bench of this Court in the case of Chandra Tirkey v. State of Jharkhand & Ors., reported in (2010) 3 JLJR 192 (HC).

Paragraphs 11 and 12 of the said judgment are quoted herein below:

Hence, we set aside the order passed by the learned Single Judge in so far as the claim of the petitioner-appellant claiming regularization was not

entertained and we direct the respondents to reinstate/regularize the services of the petitioner-appellant within a period of one month from the date of

receipt of the order on the same terms and conditions on which he had been discharging duties when he was removed from service.

However, we may not be misunderstood so as to infer that the length of service alone is a criterion for regularization but what we wish to

emphasize in the light of the order of Uma Devi's case that if the length of service is coupled with other trappings of a regular employment, then the

employee cannot be denied the benefit of the services of a regular employee so as to face termination as that would be against the ratio and

observation given out in Uma Devi's case.

Learned counsel for the petitioner further submits that the case of the petitioner is further fortified in view of the judgment rendered by the Hon'ble

Supreme Court in the case of State of Karnataka and Others v. M.L. Keshri and Others, reported in (2010) 9 SCC 247.

Paragraphs 7 and 11 of the said judgment are quoted herein below:

It is evident from the above that there is an exception to the general principles against ""regularisation"" enunciated in Umadevi (3), if the following

conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of

any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service

voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned

posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But

where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without

undergoing the process of open competitive selection, such appointments are considered to be irregular.

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The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of

continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are

considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of

employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for

more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the

direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of

any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The

fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was

undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above

directions in Umadevi (3) as a one-time measure.

Learned counsel for the petitioner further submits that the petitioner's service book has been opened and the petitioner has been provided different

pay scales from time to time and even grade pay was also provided to the petitioner. He refers to the service book of the petitioner, which is on the

record and submits that in his service book, it has been said in clear terms that the petitioner was working on vacant post and in the service book,

passing of the departmental examination by the petitioner has also been disclosed. He further submits that the Engineer-in-Chief, Road Construction

Department, Ranchi has passed the impugned dismissal order and he has also passed order on appeal, filed by the petitioner. According to him, the

Engineer-in-Chief has headed the enquiry and all three things have been done by the Engineer-in-Chief. The appeal was preferred by the petitioner

before the departmental Secretary, whereas, the appeal has been dismissed by the Engineer-in-Chief, which is not in accordance with law. On these

grounds, he submits that the writ petition is fit to be allowed.

Per contra, Mr. Kishore Kumar Singh, learned counsel for the respondent-State draws attention of the Court to the counter affidavit to the

amended writ petition dated 14.10.2019 filed by the respondents, particularly Annexure-C and submits that a detailed enquiry has been made by the

Enquiry Committee and the petitioner's services has been found to be illegal. He further submits that even Rule 60 of the PWD Code has not been

followed and subsequent order of restriction has not been considered while appointing the petitioner, which has been disclosed in Annexure-C of the

said counter affidavit and that is why the impugned order of dismissal has been passed. On these grounds, he submits that the writ petition is fit to be

dismissed.

In light of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record. It is an admitted

position that the petitioner was appointed on 04.01.2000 by the Superintending Engineer. The petitioner was transferred to the office of the Executive

Engineer, Chaibasa on the vacant post of Treasurer Guard vide letter dated 30.03.2000 and the service of the petitioner was confirmed on the vacant

and sanctioned post of Correspondence Clerk vide letter dated 31.03.2000. These are the admitted facts. On perusal of the impugned dismissal order

dated 13.11.2017, it transpires that the regularisation rule dated 13.02.2015 has been considered in paragraph 3, wherein, it has been said that the

petitioner was appointed without following the due process and in paragraph 7 of the said impugned order, it has been said that the competent authority

has not appointed the petitioner and that is why the appointment of the petitioner is illegal. In the definition clause-2 of the regularization rule dated

13.02.2015, it has been stated in clear terms that the irregular appointment means, as has been said that it has been done by the competent authority

but without the advertisement and the employee is having the educational qualification, open competition may not have taken place that is said to be

regularized by the said regulation. For the regularization in the light of these rules, it has been stated in definition clause-3(ka)(v) in the said rules that

there is no requirement of creating sanctioned post for regularization. Thus, the case of the petitioner in the light of these rules, is also fit to be

considered for regularization, whereas, in the impugned dismissal order, contrary view has been taken in paragraphs 3 and 7 of the said impugned

order. The argument of the learned counsel for the respondent-State with regard to non-functioning of the petitioner on the vacant post, is also negated

by this Court, in view of the service book of the petitioner, which is on the record at Annexure-10 of the amended writ petition. In the service book, it

is clearly stated that the petitioner is working on permanent post. The complete history of the petitioner's appointment has been disclosed in his service

book. In the service book, it has also been stated that on vacant and sanctioned post, the petitioner was promoted to the post of Correspondence Clerk

and his services was confirmed. The petitioner was provided increments and pay scales from time to time, which is evident from perusal of the

service book. In the service book, it has also been disclosed that the petitioner has passed the departmental examination. The petitioner was provided

the earned leave on full pay basis. All these facts are clear from perusal of the service book of the petitioner. The petitioner has already worked for

about 20 years. The names of 106 employees are disclosed in Annexure-12 of the amended writ petition and the enquiry report was also against those

persons and only the petitioner's services has been terminated, whereas, rest of the employees have been allowed to work. The State being a model

employer cannot be allowed to discriminate the petitioner. In the case of M.L. Keshri (supra), test of illegal and irregular appointment has been

described, wherein, it has been held that where the person employed possessed the prescribed qualifications and was working against sanctioned

posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. The

Enquiry Committee has also not doubted the qualification of the petitioner, which is evident from perusal of the same. It has been stated in the service

book that the petitioner has been appointed and promoted on the sanctioned post. Rule 38 of the Jharkhand Service Code defines that permanent post

means a post carrying a definite rate of pay and sanction within limit of time. The service of the petitioner was opened by the respondents as per Rule

288 of the Jharkhand Service Code and the same was maintained as per Rule 89 of the Jharkhand Service Code. The service book of the petitioner

was also verified as per Rules 101 and 102 of the Jharkhand Financial Rules every year. The Engineer-in-Chief, Road Construction Department,

Ranchi has headed the Enquiry Committee as a Chairman and the same person has passed the impugned dismissal order dated 13.11.2017. Although

the appeal was preferred by the petitioner before the Secretary of the Department, but the appeal was also disposed of by the same person. At least

in the appeal, he was required to restrain himself to pass the order as the same was preferred before the departmental Secretary against the impugned

dismissal order dated 13.11.2017 by the Engineer-in-Chief.

As a cumulative effect of the aforesaid discussions, the impugned orders dated 13.11.2017 and 08.05.2019 are fit to be quashed. Accordingly, the

impugned dismissal order dated 13.11.2017, contained in Annexure-7 of the amended writ petition and the order on appeal dated 08.05.2019, contained

in Annexure-11 of the amended writ petition are quashed. The respondents are directed to reinstate/regularize the service of the petitioner within a

period of one month from the date of receipt/production of a copy of this order on the same terms and conditions on which he had been discharging

the duties when he was removed from the service.

With the above observations and directions, this writ petition stands allowed and disposed of.