Nirmal Dhodray And Ors vs State of Jharkhand And Ors

Heard Mr. Anil Kumar Sinha, the learned Senior counsel assisted by Mr. Abhishek Sinha, the learned vice counsel appearing for the petitioners and

Mr. Ashok Kumar Yadav, the learned counsel appearing on behalf of 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.

The petitioners have moved before this Court for direction upon the respondents to regularize/absorb the service of the petitioners on the post of

Gram Rojgar Sewak under MGNREGA Scheme.

The petitioners were working on the post of Gram Rojgar Sewak. Pursuant to Advertisement published in the newspaper by which the application

for appointment on the post of Gram Rojgar Sewak was called for on consolidated amount, the petitioners have applied. Having the requisite

qualification in terms of advertisement as contained in Annexure-1, the petitioners were selected for the post of Gram Rojgar Sewak. Thereafter, the

petitioners were sent for training by the respondents in the year, 2008. After completion of training, the petitioners were appointed on the post of Gram

Rojgar Sewak in different dates in different Blocks i.e. Khunti, Murhu and Ranchi. The petitioners have completed ten years of service on the post of

Gram Rojgar Sewak. The petitioners have filed the representation in view of Annexure-4 series but no decision has been taken on the representation

of the petitioners.

Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioners submits that the petitioners have worked for substantial period. He submits that

in view of 'Narendra Kumar Tiwari v. State of Jharkhand' case, the case of the petitioners is required to be considered by the respondent State. He

referred to such judgment and placed paragraph no.8 of the said judgment which is quoted hereinbelow:

If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration

then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000

and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed

employees would be perpetuated contrary to the intent of the Constitution Bench.

Mr. Sinha, the learned Senior counsel further submits that the case of the petitioners is also covered in view of the judgment rendered in case of

'Sheo Narain Nagar and Others v. State of Uttar Pradesh and Others' ((2018) 13 SCC 432) [Civil Appeal No.18510 of 2017 arising out of SLP (C)

No.6183 of 2015] . He submits that the contractual aspect of the matter has been considered in the case of 'Sheo Narain Nagar' [supra] at paragraph

no.7 of the said judgment. Paragraph no.7 of the said judgment is quoted hereinbelow:

'7. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi (3) has not been properly understood and rather

wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on

contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being

continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment

on contract basis has been adopted, employment is offered on daily-wage basis, etc. in exploitative forms. This situation was not envisaged by

Umadevi (3). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the

available pay scale. That spirit of the Umadevi (3) has been ignored and conveniently overlooked by various State Governments/authorities. We

regretfully make the observation that Umadevi (3) has not been implemented in its true spirit and has not been followed in its pith and substance. It is

being used only as a tool for not regularising the services of incumbents. They are being continued in service without payment of due salary for which

they are entitled on the basis of Articles 14, 16 read 5 W.P.(S) No. 5600 of 2019 with Article 34(1)(d) of the Constitution of India as if they have no

constitutional protection as envisaged in D.S. Nakara v. Union of India, from cradle to grave. In heydays of life they are serving on exploitative terms

with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits, etc.

There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they

require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of

rights. We have to strike a balance to really implement the ideology of Umadevi (3). Thus, the time has come to stop the situation where Umadevi (3)

can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on

exploitative terms, whereas Umadevi (3) laid down that there should not be back door entry and every post should be filled by regular employment, but

a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not

permissible when we consider the pith and substance of true spirit in Umadevi (3).

Mr. Sinha, the learned Senior counsel further submits that the co-ordinate Bench of this Court in the case of 'Shankar Kachhap and Others"" has

also considered this aspect of the matter wherein direction was issued for regularization. He further submits that pursuant to the order of the

coordinate Bench 'Shankar Kachhap' case, the petitioners of that case has been regularized and in view of this, he submits that the case of the

petitioner is fully covered under the said judgment and thus, the Court may issue the mandamus. The appointment letter suggests that the petitioners

have been appointed on the sanctioned post [Annexure-2].

Mr. Ashok Kumar Yadav, the learned counsel for the respondent State submits that the case of the petitioners can be considered by the competent

authority on the basis of the judgment relied by the learned counsel for the petitioners.

In view of the above facts and the submission of the learned counsel for the parties, the petitioners are directed to file the fresh representation

before the respondent nos.2 and 4 annexing all the credentials on which they are relying including the judgments as referred above within a period of

two weeks.

If such representation is filed within the aforesaid period, the respondent no.2 and 4 shall consider the case of the petitioners in accordance with

the rules, regulations and the guidelines particularly considering the 3 judgments as referred to above within 12 weeks thereafter and will pass the

appropriate reasoned order.

It goes without saying that if the decision is taken in favour of the petitioners, the benefit of the same shall be provided to the petitioners within 8

weeks further thereafter.

With the above observation and direction, the writ petition stands disposed of. I.A., if any, stands disposed of.