Munshi Yadav vs State Of Jharkhand And Ors

Heard learned counsel for the parties.

Petitioner has preferred this writ petition with a prayer for quashing the order under Memo No. 548, dated 10.09.2015 (Annexure-6) by which the Deputy Commissioner, Koderma has rejected his claim for appointment to Class-IV post although he is working since the year 1983 till date under the Divisional Forest Officer, Koderma.

It is specific case of the petitioner that the persons who were working since the year 1985 as daily wagers, have been regularized. The certificates to that effect has also been issued by the authorities and it is admitted by the respondents that petitioner is working as on date to the satisfaction of the authorities.

It appears that petitioner had earlier approached this Court vide W.P.(S) No. 2946 of 2002 and after considering the matter at length and hearing the parties, vide order dated 17.10.2014, the matter was remitted back to the respondents authorities for consideration of his case for regularization in view of Scheme floated by the respondents - State. After said order of this Court, petitioner approached the authorities for consideration of his case but the same stood rejected vide order dated 10.09.2015 on the ground that petitioner does not fulfills the requisite qualification prescribed for appointment to Class-IV posts and as such, his case could not be considered in view of Scheme floated by the State Government for regularization dated 12.02.2015 and as such, this writ petition has been preferred assailing the said order dated 10.09.2015.

Mr. J.P. Pandey, learned counsel appearing for the petitioner strenuously urges that respondents have not considered case of the petitioner and have rejected the same illegally and arbitrarily without considering the fact that he was appointed way back in the year 1983 itself and respondents authorities have continuously taken work from him and till date he is working without any complaint. It has been further contended that at the time of appointment, there was no such Rules prescribing Matriculation as a qualification for appointment against the 4th Grade posts. The said Rule was floated in the year 2011 and the same cannot be made applicable retrospectively and as such, a direction may be given to the respondents to consider his case for regularization and for other consequential benefits.

Mr. Ashish Thakur, AC to learned GP-III vehemently opposes contention of learned counsel for the petitioner and submits that there is no illegality or any infirmity in the order of rejection. Admittedly, as on date, though petitioner is working but he does not fulfil the requisite qualification for consideration of his case in view of Resolution (SANKALP) of the State Government dated 02.09.2011. It has also been contended that regularization can be considered only in view of Scheme dated 13.02.2015. Case of the petitioner was not fit for consideration and as such the same has rightly been rejected.

Be that as it may, having gone through rival submission of the parties and from perusal of documents brought on record, I find that Scheme floated by the State Government dated 13.02.2015 is now no more in existence, the same has been quashed and set aside by the Hon'ble Supreme Court in the case of Narendra Kumar Tiwari and others Vs. State of Jharkhand and others reported in (2018) 8 SCC 238. The Hon'ble Apex Court, in paragraph-10 of the said Judgment has clearly held that unless there is valid objection to regularization, the ten years' service is fit for regularization. Para-10 of the said Judgment is necessary to be quoted herein:

"10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct, etc."

No misconduct has been pointed out by the respondents but rejection has been made on the ground of not fulfilling the minimum qualification, is not accepted to this Court. Respondents have taken the work from the petitioner since the year 1983 and he is still working as such without any complaint, which clearly shows that respondents are in need of the petitioner and as such, they have engaged him till date. In a welfare State and that also in the case of an employee of Class-IV category, who have worked continuously for 36 long years, cannot be forced to go out of post merely because he does not fulfill the requisite educational qualification though working against the said post. It was respondents who have allowed him to continue to work against the said post. Case of the petitioner needs sympathetic consideration as he is a Class-IV employee and is discharging the work since the year 1983. Livelihood of an employee cannot be snatched away in this fashion. Respondents are directed to consider case of the petitioner if there is no any other legal impediments and in view of order and direction of the Hon'ble Supreme Court, as has been held in para-10 of the Judgment referred above.

As a cumulative effect of aforesaid rules, guidelines and judicial pronouncements, the impugned order under Memo No. 548, dated 10.09.2015 (Annexure-6) issued by Deputy Commissioner, Koderma is hereby quashed and set aside and matter is remitted back to the respondents to consider the same in light of Judgment passed by Hon'ble Supreme Court in the case of Narendra Kumar Tiwari (Supra) and pass appropriate reasoned order within a period of eight weeks from the date of receipt/ production of a copy of this order. If it is found that petitioner is found entitled for the same, the same be considered in accordance with law and provide him other consequential benefits.

This writ petition is accordingly disposed of with aforementioned observations and directions.