Shyama Pada Mandal And Ors vs State Of Jharkhand And Ors

Dr. S.N. Pathak, J

Heard the parties.

Petitioners, who were Instructors under non-formal education, have approached this Court with a common prayer for quashing the order dated

07.02.2018 (Annexure-11), by which the representation of the petitioners for absorption against equivalent govt. posts has been rejected, ignoring the

fact that similarly situated persons have been absorbed in the State of Bihar in view of the judgment passed by the Hon’ble Supreme Court of

India and also ignoring the fact that this Hon’ble Court in its order dated 24.11.2017, passed in W.P.(S). No. 2953 of 2012 & other analogous

cases, was pleased to direct the Director, Primary Education for taking sympathetic view of the matter in view of long period of services rendered by

the petitioners as also in view of the fact that similarly situated persons have been regularized in the State of Bihar.

Further prayer has been made for a direction upon the respondents to absorb the services of the present petitioners against the equivalent Class-IV

posts under govt. department, taking into account the aforesaid facts.

The factual exposition as has been delineated in the writ petition is that Govt. of India launched a centrally sponsored scheme for universalization of

elementary education for implementing the constitutional mandate given in the directive principles of State policy so that the children between 6 years

to 14 years, who are out of school, may be imparted non-formal education for bringing them into mainstream. The State of Bihar implemented the said

scheme in the year 1981 by establishing various non-formal education centres in different districts of the State, including Dumka where the present

petitioners are working as non-formal Instructors and they were paid honorarium. The Instructors were provided with guidelines/ syllabus for

imparting education in the field of cleanliness, infectious disease, food and nutrition, kitchen gardening, etc. and thus, it is apparent that they were

bestowed with onerous tasks and not simply that they were only part-time employee as stated in the impugned order. It is further case of the

petitioners that in the year 2001, the said scheme came to an end by the order of Govt. of India and as such, all the non-formal centres were also

closed and the instructors were rendered jobless after spending their prime period of life. Thereafter, the Instructors and Supervisors fought a

prolonged litigation before the Hon’ble Patna High Court as well as before the Hon’ble Apex Court and finally, the State of Bihar was

directed to absorb the erstwhile Supervisors and Instructors to the Class-III and Class-IV posts respectively in different Govt. Departments. In

compliance of the order passed by the Hon’ble Apex Court, the State of Bihar absorbed the services of the similarly situated persons.

It is the further case of the petitioners that when the State of Jharkhand did not take any heed to the order passed by the Hon’ble Apex Court,

they were constrained to move before this Hon’ble Court by filing W.P.(S). No. 2953 of 2012 and analogous cases and this Hon’ble Court

vide its order dated 24.11.2017, directed the Director, Primary Education to take a sympathetic view of the matter regarding absorption of the

petitioners of that cases. Thereafter, the petitioners preferred representation before the Director, Primary Education along with all relevant documents

on 02.01.2018, which was duly received in Office. However, the Director, Primary Education vide its order dated 07.08.2018, rejected the cases of

the present petitioners without discussing any of the issues raised in the representation, which is a glaring example of non-application of mind and

hence, the petitioners were constrained to knock the door of this Court, challenging the rejection order dated 07.02.2018 (Annexure-11 to this writ

petition).

Mr. Bhanu Kumar, learned counsel appearing for the petitioners argues that in complete defiance to the order of Hon’ble Apex Court, the State

of Jharkhand has not absorbed the services of present petitioner, whereas State of Bihar has already absorbed the services of similarly situated

persons falling under the jurisdiction of State of Bihar. Learned counsel further argues that the orders of Director, Primary Education is in complete

violation of Articles 14 and 16 of the Constitution. Mr. Bhanu Kumar, learned counsel submits that upon the undertaking given by the Director,

Primary Education in W.P.(S). No. 2953 of 2012 which was disposed of on 27.08.2012 and now, the Director, Primary Education cannot go beyond

the said undertaking which is contemptuous and in total disregard to the orders passed by this Court. Learned counsel places heavy reliance on para-

23 of the reported judgment passed by the Hon’ble Apex Court in case of Vikas Pratap Singh & Ors. Vs. State of Chhattisgarh & Ors., reported

in (2013) 14 SCC 494 and submits that the Hon’ble Apex Court, taking into consideration the judgment rendered in case of Girjesh Shrivasrava

Vs. State of M.P., reported in (2010) 10 SCC 707, was of the view that, “……………

This Court while concurring with the observations made by the High Court kept in view that upon rectification of irregularities in

appointment after a considerable length of time an order for cancellation of appointment would severely affect economic security of a

number of candidates ……â€​

Learned counsel further argues that the observations and directions of the Full Bench of this Court is not applicable in this case and is not binding

and as such, the impugned order is bad in law and in flagrant violation of principle of natural justice and fair play.

On the other hand, Mr. Jai Prakash, learned AAG appearing for the respondent-State vehemently opposes the contention of the learned counsel for

the petitioners. Mr. Jai Prakash placing reliance on the counter-affidavit filed on behalf of the respondent-State argues that petitioners were engaged

as instructors in Centrally Sponsored Scheme namely Non-Formal Education and their claim for absorption in the government services has no merit

since they worked under the said Scheme as part time Instructors at the rate two hours per day and for which they were getting honorarium. Further,

they were not appointed against any post or any scale of pay, rather, they were selected locally as volunteers for teaching at Non-formal Education

Centre for two hours per day. The petitioners were engaged purely on temporary basis which is also apparent from appointment letters annexed with

the writ application. Learned counsel further argues that said Scheme was for a time bound period, which was wound-up by the Govt. of India w.e.f.

01.04.2001 and subsequently, the State of Jharkhand also decided to close the said Scheme w.e.f. 01.04.2001 itself. Learned counsel further submits

that after getting advice from the Law Department, the Govt. of Jharkhand has taken a decision not to rehabilitate the part time Instructors of defunct

non-formal education scheme as is evident from order dated 24.05.2016, issued from the office of Primary Education Directorate. Learned counsel

further argues that the order of the Hon’ble Apex Court on which the petitioners are relying is not applicable in their cases as because, the relief

granted by the Patna High Court is restricted to those who approached the Patna High Court. But so far as the cases of the present petitioners are

concerned, they never approached either to Patna High Court or to Supreme Court and as such, they cannot claim parity with the order passed by

Patna High Court or by the Hon’ble Apex Court. Learned counsel lastly submits that for the reasons stated above, it is clear that the claim of the

petitioners for absorption in government service is not legally maintainable and hence, the instant writ application is fit to be dismissed. Learned

counsel further submits that the cases of the petitioners are barred by res-judicata. Petitioners had earlier approached this Court earlier self-same

relief, which was rejected by this Court. Mr. Jai Prakash, learned AAG argues that in its earlier order dated 24.11.2017, passed in W.P.(S). No. 2953

of 2012 & other analogous cases, the Court has considered every aspects of the matter and had also considered the judgments rendered by the

Hon’ble Supreme Court as well as the Hon’ble Patna High Court and had clearly observed that they are not applicable in the instant case.

The Full Bench of this Court had given a clear verdict and as such, the cases of the petitioners have rightly been rejected and the impugned order is

fully justified.

Be that as it may, having heard the rival submissions of the parties and upon perusal of the records, this Court is of the considered view that no

case is made out for interference. These writ petitioners had earlier approached this Court and this Court vide its order dated 24.11.2017, taking into

consideration every aspects of the matter, had rejected their plea. The Court in aforesaid case has clearly observed that:

“…………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. …………………â€​

The further contention of the learned counsel for the petitioners that an undertaking was given by the Director, Primary Education in W.P.S. No. 2953

of 2012 is also not acceptable to this Court as no undertaking was given by the Director, rather, submission was made regarding examining the claim

of the petitioners on ground of parity. The Full Bench of this court in its judgment passed in case of Bholanath Hansda @ Bhola Hansda Vs. State of

Jharkhand, reported in 2017 3 JCR 795 F.B. has held as under:

“26. We now proceed to delve upon the question as to whether service rendered under such centrally sponsored scheme through grant

by the Central and /or by the State Government could be treated as regular service on a permanent and substantive post under the State

Government, and whether such past services could be counted for pensionary benefits. Learned A.A.G representing State in support of their

submission on the instant issue has relied upon judgments rendered by the Hon'ble Supreme Court in the case of Delhi Development

Horticulture Employees' Union v. Delhi Administration, Delhi and others reported in AIR 1992 SC 789, Surendra Kumar Gyani v. State of

Rajasthan and another; AIR 1993 SC 115 Para 14, State of Himachal Pradesh through the Secretary, Agriculture to the Govt. of Himachal

Pradesh v. Nodha Ram & others ; AIR 1997 SC 1445, Dhyan Singh & others v. State of Haryana & others ; 2002(10) SCC 656, Surendra

Kumar Sharma v. Vikas Adhikari and another ;2003(5) SCC 12(para 4), Gurbachan Lal v. Regional Engineering College, Kurukshetra and

others; 2007 (11) SCC 102( para 26 and 52).

In the case of Delhi Development Horticulture Employees' Union (supra) the petitioner workmen employed on daily wage had sought

absorption as regular employee under the Delhi Administration and for prohibiting the Respondents from terminating their services. These

workmen were provided daily wage employment under the scheme for plantation of trees taken up at various sites of rural areas of Delhi

under the Rural Landless Employment Guarantee Programme launched on 15.8.1983 under the 6th year plan. The National Rural

Employment Programme started in October 1980 replaced the ""Food For Work"" Programme existing under the 5th year plan, with a larger

objective to alleviate rural poverty by providing employment opportunities to them. In these background the Hon'ble Supreme Court at para

14 of the report held as under:-

Para 14 ""....................The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for

providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of

income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the

scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than

what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to

regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those

employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These

concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of

the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the

schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want

of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasis that

even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those

in need of full employment, the educated and uneducated, the rural and urban unemployed etc"".

The respondents while considering every aspect of the matter and earlier order of this Court, rejected the case of petitioners as the work of the

Instructors was not an employment under the State Govt. but it was like a social service, which was quite clear from perusal of different appointment

letters of the petitioner, averment to that effect has been made in para-9 of the writ petition. Their appointment letters reveals that they were engaged

purely on temporary basis. The non-formal education scheme was centrally sponsored time bound scheme, which was wound-up by the Govt. of India

w.e.f. 01.04.2001 and subsequently, the State of Jharkhad had also decided to close the said scheme w.e.f. 01.04.2001 itself. The State of Jharkhand

was directed to take a policy decision as to whether non-formal part time Supervisors be rehabilitated with instruction vide order dated 03.09.2014

passed in W.P.S. No. 2413 of 2013 and the State Govt. has came-out with the decision not to absorb/ regularize the non- formal part time Supervisors/

Instructors in Jharkhand which is evident from the order dated 17.03.2015, issued by Director, Primary Education, Ranchi. As the Govt. has taken

policy decision not to absorb/ regularize the services of non-formal part time supervisors/ instructors, there is no question of any interference in this

writ petition.

As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, no interference is warranted in the

instant writ petition and resultantly, the same is hereby dismissed.