IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 1545 of 2012 Sachidanand Pandey ..... … Petitioner Versus 1. The State of Jharkhand through Forest Secretary.
2. Principal Chief Conservator of Forests, Jharkhand, Ranchi.
3. Regional Conservator of Forests, Daltonganj.
4. Conservator of Forest, State Trading Circle, Palamau at Daltonganj. .…. … Respondents. -------- CORAM : HON’BLE MR. JUSTICE H. C. MISHRA ------ For the Petitioner : M/s P.P.N. Roy, Sr. Advocate & P.A.N. Roy, Advocate. For the respondent-State : Mr. Prem Pujari Roy, J.C. to G.A. -------- 08/ 27.09.2016 Heard learned counsel for the petitioner and learned counsel for the respondent State.
2. The petitioner was earlier appointed as Clerk in the State Trading Division, under the Conservator of Forest, State Trading Circle, Palamau at Daltonganj, and presently he is continuing in service on daily wages. The brief facts of the case, as admitted and detailed in paragraph-5 in the counter affidavit, filed on behalf of the respondent State, excluding the Annexure part, are as follows:- “(a) Four persons namely Sri Mantu Gopal Mohanty, Sri Chandrashekhar Prasad, Sri Bhagwati Lal Srivastava and Sri Krishanballabh Kumar were appointed in the Forest department in Palamu District. (b) On these appointments, a writ was filed in Hon’ble High Court, Patna (CWJC No. 861 / 1989(R)). In this, judgment was passed by the Hon’ble High Court, Patna which nullified the appointments. In the judgment it was also directed to make appointment after due advertisement. (c) On the basis of the order, an advertisement No. 5-7/91 was issued in March, 1991 for appointment to the posts of Range Clerks. (d) A selection committee was constituted for selection of the candidates for appointment. (e) Tests were conducted and 44 persons were selected. (f) Appointment letters were issued to all of them in which Sri Sachidanand Pandey (petitioner) was also included. Appointment letter was issued by the Conservator of Forest, State Trading -2- Palamau Circle-2, Daltonganj vide office Order No. 39, dated 30.11.91. He was later on posted in Daltonganj South State Trading Division Daltonganj and further he was deputed to Regional Chief Conservator of Forest, Palamau Office. (g) The Principal Chief Conservator of Forest, Bihar vide letter No. 57 dated 10.1.1992 cancelled all the appointments. (h) An interim order was passed by the Hon’ble High Court, Ranchi Bench on 24.2.92 in case No. CWJC4841992(R) in which it was directed not to take any coercive measure against the petitioner. On the basis of the above interim order, the establishment committee of Palamau Region, on 28.2.1992 stayed the Principal Chief Conservator of Forest, Bihar Order No. 57 dated 10.1.92. (i) Later on, the Hon’ble High Court, Ranchi Bench on 11.3.1992 in Case No. CWJC484R) / 1992 quashed the order of the Principal Chief Conservator of Forest, Bihar letter No. 57 dated 10.1.1992. (j) The Forest and Environment Department, Government of Bihar vide letter no.6129 dated 28.11.1992 cancelled all the appointments in Palamau. (k) Several writs CWJC No.12595/93, 986/93, 977/93 and 1262/93 were filed in the Hon’ble High Court, Patna. (l) All writs were tagged and after hearing both parties order was passed on 05.04.1994 and quashed the order of Forest & Environment Department, Government of Bihar letter no.6129 dated 28.11.1992. (m) In the said order it was also noted that 6 outside candidates had secured more points than the six petitioners appointed in the General Category at Sl. No.10 to 15. It was further held that the outside candidates must be offered appointments and in case all six outside candidates responds to the offer of appointment. The petitioners appointed in the General category from Sl. No.10 to 15 must go out to make room for those outside candidates. Sri Pandey was also one of the candidates who was placed between Sl. No.10 to 15 and had secured lower marks than the outside candidates. However, one silver lining was added to the judgment to the effect that in case the petitioners are removed to make room for the outside candidates they were at liberty to make representation before the -3- concerned authority for appointment against any existing vacancies. In terms of the aforesaid order dated 5.5.1994 representations were submitted by 9 persons including the concerned workman which was considered and since there was very little job requirement in State Trading Circle Daltonganj the representation was rejected vide order dated 18.9.1999. (n) Pursuant to the order passed by the Hon’ble High Court and its observation to give appointment to the outside candidates in place of candidates selected and who has secured lower marks in termination order was issued. Sri Pandey continued and still continues to work in the Regional Chief Conservator of Forest, Palamau Office, albeit on daily wages. (o) The Principal Chief Conservator of Forest, Jharkhand, Ranchi vide letter no. 2944 dated 16.8.08 has dismissed the representation to Sri Pandey for regularization and payment of arrears. (p) Pursuant thereof, an advise was sought by the Forest and Environment Department, Government of Jharkhand from the Law Department, Government of Jharkhand regarding the case of Sri Sachidanand Pandey. The Law Department has given advise and it has been treated that Sri Pandey is entitled to get wages for working as daily wage. The Forest and Environment Department vide letter no. 3839 dated 15.10.11 communicated the advise to the Principal Chief Conservator of Forest, Jharkhand regarding the matter. (q) The petitioners and others had filed a writ No. CWJC No. 6578 /1995 in which they pleaded for regularisation of their services but no relief was granted in this case later on they filed an LPA No. 714/1996, in which no relief was also granted. “ 3. In the admitted backdrop of the aforesaid facts, the petitioner has filed this writ application with a prayer for regularisation of his services and also for making payment of salary on the basis of equal pay to equal work.
4. Learned counsel for the petitioner has submitted that admittedly the petitioner is working on daily wages for a long period, and though the earlier writ application for regularisation of the services of the petitioner has been rejected, but subsequently, the State of Jharkhand has come up with the Regularisation Rules of 2015, which has been notified in Notification No. 1348 dated 13.2.2015. It is submitted that since the petitioner is still continuing to work on daily wages, -4- the case of the petitioner is fully covered by the regularisation Rules, framed by the State Government for regularisation of the services of the employees, working on daily wages / contract etc., for more than 10 years till the cut-of-date 10.4.2006. It is further submitted that since the petitioner has also completed 10 years of service prior to 10.4.2006, under the newly framed Rules, the petitioner is entitled to the regularisation of service. It is also submitted that since the petitioner is working on daily wages, it is a fit case for directing the respondents to make the payment of salary of the petitioner at the minimum of the applicable pay scale in the corresponding cadre, in which the petitioner is working.
5. Learned counsel for the State on the other hand has opposed the prayer submitting from the counter affidavit that the petitioner had earlier moved this court for regularisation of his service, which has already been dismissed and the petitioner lost in L.P.A. also. Learned counsel has, accordingly, submitted that the petitioner again filed the present writ application for the same relief of regularisation of his service, which is not maintainable. It is submitted by learned counsel for the State that the petitioner has been paid the wages for the period, for which the work has been taken from him, and there is no merit in this application and it is fit to be dismissed.
6. Having heard learned counsels for both the sides and upon going through the record, I find that though, it is an admitted position that the petitioner had earlier filed CWJC No. 6578 of 1995 for regularisation of his services, which was rejected and against the said order, the L.P.A No. 714 of 1996 was also dismissed by the Patna High Court on 24.4.2003 itself, but even thereafter the petitioner has been continued in service on daily wages and the same has been admitted in paragraph-5 (n) of the counter affidavit stating that the petitioner still continues to work in the office of Regional Chief Conservator of Forest, Palamu Office on daily wages. Subsequently the State of Jharkhand has framed the Regularisation Rules of 2015 for the employees, working on daily wages / contract etc., those who had completed 10 years of such service till 10.4.2006, which has been notified under Notification No. 1348 dated 13.2.2015.
7. If the case of the petitioner comes within the purview of this notification, the petitioner has a claim for fresh consideration for getting his service regularized, in view of the changed circumstance that thereafter new Rules have been framed by the State Government, irrespective of the fact that the earlier writ application, filed by the petitioner was dismissed and the L.P.A. was also dismissed by the Patna High Court, prior to the framing of the new Rules. -5- 8. The fact remains that the petitioner is still working as daily wages and he has also claimed for his salary on the basis of equal pay for equal work. The law is well settled by the Hon’ble Apex Court in the case of U.P. Income Tax Department Contingent Paid Staff Welfare Association Vs. Union of India and Others, reported in 1987 (Supp) SCC658 wherein taking into consideration the earlier decision of the Apex Court in Daily Rated Casual Labour Employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India, reported in (1988) 1 SCC122 the casual labours, working in these departments were directed to be paid the wages at the rates equivalent to the minimum pay in the pay scale of regularly employed workers in the corresponding cadres, and such workmen were also held to be entitled to get the corresponding dearness allowance. In that view of the matter, the petitioner is also entitled to the wages at the rates equivalent to the minimum of the pay scale of the regularly employed person in the cadre, corresponding to which the petitioner is working.
9. In view of the aforementioned discussions, the petitioner is directed to give a fresh representation before the respondent No. 2, the Principal Chief Conservator of Forests, Jharkhand, Ranchi, giving the details of his case with connecting documents. The respondent No. 2 shall consider the case of the petitioner for regularisation of his services in view of the new regularisation Rules framed by the State Government vide Notification No. 1348 dated 13.2.2015 and if it is found that the case of the petitioner is fully covered by the regularisation Rules of 2015, the services of the petitioner shall also been regularised. If it is found that the case of the petitioner is not covered by the said Rules, the respondent No.2 shall pass a reasoned order rejecting the claim of the petitioner. In any event the petitioner must be paid his wages for the period he has worked on daily wages, at the minimum of pay scale of the corresponding cadre of the regular employees, in which the petitioner is working, with the admissible D.A from time to time. The respondent No. 2, Principal Chief Conservator of Forest, Jharkhand, Ranchi is directed to pass the reasoned order positively within the period of three months from the date of receipt of the representation of the petitioner, along with a copy of this order.
10. This writ application is disposed of with the directions as above. ( H. C. Mishra, J.) Amitesh/-