1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2538 of 2015 1.Dineshwar Prasad Yadav, s/o Late Chhotu Yadav, r/o Village-Harla, PO-Gawa, PS-Gawa, District-Giridih, Jharkhand 2.Kaushal Kishor Tripathy, s/o Late Gariwan Tripathy, Village-Nawadih, PO-Hunterganj, PS-Hunterganj, District-Chatra, Jharkhand 3.Ram Kisun Ram, s/o Shri Bhat Mahto, Village-Sakhiya, PO-Oriya, PS-Muffasil, District-Hazaribagh, Jharkhand 4.Md. Imran, s/o Late Abdul Bari, Village-Chistiya Mohalla, PO-Hazaribagh, PS-Hazaribagh Sadar, District-Hazaribagh, Jharkhand 5.Bishnu Kumar Roy, s/o Shri Rameshwar Roy, Village-Margoda, PS-Birni, PO-Jawahar Nagar, District-Giridih, Jharkhand 6.Sadanand Mahto, s/o Aina Mahto, Village-Hundi, PO-Nadisai, PS-Inchagarh, District-Saraikela(Kharsawa)-832404, Jharkhand …. …. Petitioners -Versus- 1.The State of Jharkhand, through the Chief Secretary, Government of Jharkhand, at Project Building, Ranchi, PO-Dhurwa, PS-Jagarnathpur, District-Ranchi 2.The Principal Secretary, Department of Forest, Government of Jharkhand, at Project Building, Ranchi, PO-Dhurwa, PS-Jagarnathpur, District-Ranchi 3.The Principal Chief Conservator of Forest, Jharkhand, Doranda, PO-Doranda, PS-Doranda, District-Ranchi, Jharkhand 4.The Regional Chief Conservator of Forest, Hazaribagh, PO-Hazaribagh, PS-Hazaribagh, District-Hazaribagh 5.Jharkhand Staff Selection Commission, situated at F-49/50, Sector-III, Dhurwa, PO-Dhurwa, PS-Jagarnathpur, District-Ranchi,Pin-834004. …. …. Respondents …. CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------ For the Petitioners : Mr. R. N. Sahay, Sr. Advocate Mr. Arpit Kumar, Advocate Mr. Yashvardhan, Advocate For the Respondent-State : Ms. Shruti Shrestha, JC to A.G. ----- 07/ 18.10.2016 Delay on the part of respondent-State to initiate the process for regularization of the petitioners in terms of the Rules notified vide Notification dated 13.02.2015, has brought the petitioners before this Court. The petitioners seek a direction upon the respondent-State to regularize their services.
2. The facts narrated in the writ petition disclose that, the 2 petitioners, 6 in numbers, are working at different places as daily-wages employees under different Forest Divisions. They were employed between the period December, 1983 and July, 1993; the petitioner no.3 was employed as a Class-IV employee on the daily-wages on 07.03.1983. All of them have, thus, worked for more than 10 years and they stake a claim for regularization on a Class-IV post in terms of Notification dated 13.02.2015.
3. Mr. R. N. Sahay, the learned senior counsel for the petitioners contends that after 2015 Rules were notified vide Notification dated 13.02.2015, the Principal Chief Conservator of Forest, Jharkhand directed, vide letter dated 20.04.2015, to the competent authorities under the Department of Forest and Environment to take necessary steps for regularization of the services of the employees like the petitioners as One-time measure, however, the respondent-State has sat over the matter and did not take further steps for regularization of the services of the petitioners and other similarly situated employees, which compelled the petitioners to approach this Court.
4. Per contra, the learned State counsel submits that any vacancy in the Forest Department has to be first advertised and filled up according to the Recruitment Rules and roster. It is contended that the petitioners who were engaged on daily-wages, as per the need, do not fall under the category of irregularly appointed employees and moreover, they were not employed against a sanctioned vacant post and therefore, they cannot claim benefit under 2015 Rules for regularization of their services.
5. Before referring to the prayer in the writ-petition, certain facts which are admitted by the respondents in the counter-affidavit need to be recorded. The respondents have admitted that all the petitioners have 3 been working since last 10 years on daily-wages and the respondents also admit that all 6 petitioners have been paid wages for 26 days in each month. In Paragraph no.12 of the counter-affidavit, it is stated that the petitioners were engaged as Bungalow Chowkidar, Mali, Range Staff, Cattle Guard, etc. on daily-wages as per the need, however, it is not denied that they are continuously working in the same capacity. In the counter-affidavit, referring to Rule 3(ka)(i) of 2015 Rules, it is pleaded that the petitioners who are working as daily-wages do not fall under the category of irregularly appointed employees. It is further pleaded that in view of Resolution dated 10.04.1986 and 18.06.1993 all vacant posts must be advertised for appointment and no fixed percentage of posts shall be kept reserved for daily-wages employees. This stand taken by the respondents is in contradiction to the object behind Notification dated 13.02.2015, issued for regularization of services of the employees who completed 10 years of continuous service on the date of decision in Umadevi case.
6. Insofar as, the contention that daily-wagers do not fall under the one-time scheme formulated by the State Government vide Notification dated 13.02.2015 is concerned, I find that no such classification is indicated under 2015 Rules. In fact Para 43 of the judgment in “Secretary, State of Karnataka & Others vs Umadevi (3) & Others” reported in (2006) 4 SCC1refers to appointment on daily-wages and on casual basis and the one-time scheme envisaged under Para-53 of the said judgment would definitely cover persons continuously working for more than 10 years on daily-wages. The reliance on the decision in “State of Karnataka & Others vs Ganapathi Chaya Nayak & Others” reported in (2010) 3 SCC115is clearly distinguishable on facts. In the said case, under the scheme formulated 4 by the State Government the persons working prior to 01.07.1984 were eligible for regularization of their services whereas, the applicants/employees were appointed after the said cut-off date. Similarly, the claim of the employee in “Official Liquidator vs Dayanand & Others” reported in (2008) 10 SCC1was for absorption, which would have resulted in virtual abrogation of the statutory rules for appointment to different cadres by direct recruitment. The present is not a case like the one pleaded in Dayanand's case.
7. In the present proceeding the respondents have not disputed that the petitioners are eligible for appointment on the posts on which they have been working as daily-wagers. The dispute sought to be raised by the respondents is that, the petitioners were not appointed against the sanctioned vacant posts. However, the respondents have not disclosed the number of sanctioned vacant posts in each category. Rather, the pleadings in W.P.(S) No. 2404 of 2010 (Jharkhand Van Shramik Union, Daltonganj vs The State of Jharkhand & Others), which has been heard along with the present case disclosed that there were more than 2200 sanctioned vacant posts for which Advertisement No.3/14 was issued, however, only one candidate was found eligible for appointment. It shocks the judicial conscience of the Court that after taking work for 31 years and admitting that the petitioners have been paid wages for 26 days for each month, the claim of the petitioners for regularization is sought to be disputed. The respondents have taken a vague plea, not supported by any document, that the petitioners were not appointed against the sanctioned vacant posts. The judgment in Umadevi case definitely does not comprehend a situation like this and admittedly, the said judgment does not exclude the petitioners from claiming regularization. If at all posts were not sanctioned, the fact that 5 the respondents continued to take work from the petitioners for about 31 years definitely disclose a need for such posts on which the petitioners are working, and now, for the fault on the part of the respondent-State in not sanctioning the posts, the petitioners' claim for regularization in terms of Notification dated 13.02.2015 cannot be declined. In view of large number of vacancies existing in the Department, the petitioners' case must be considered for regularization.
8. At this stage, the artificial break engineered by the respondents in the employment of the petitioners, under which the petitioners were paid wages for 26 days in each month needs to be deprecated. Payment of wages for 26 days in each month regularly for decades goes to show that such a methodology was adopted by the respondents only to deny the petitioners, a claim for appointment on permanent basis. It would further establish that the petitioners were not engaged as per need rather, the need was for appointment on permanent basis. It would be apt to reproduce the observation of the Supreme Court in “Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited” reported in (2014) 11 SCC85 in which case also the employer had introduced artificial break in service. In paragraph no.27 of the reported judgment, the Hon'ble Supreme Court has observed as under:
27. “Very interestingly, the periods of service extends to close to 6 years save the artificial breaks made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. The aforesaid conduct of the respondent perpetuates “unfair labour practice” as defined under Section 2(ra) of the ID Act, which is not permissible in view of Sections 25-T and 25-U of the ID Act read with entry at Serial No.10 in the Vth Schedule to the ID Act regarding unfair labour practices. …............................” 6 9. In view of the discussions made hereinabove and the findings recorded, the respondents are directed to consider the claim of the petitioners for regularization, for which an exercise would be undertaken under 2015 Rules. It is clarified that the petitioners shall be considered as daily-wages employees, who have worked continuously for more than 10 years and thus, they fulfill the requisite conditions under Rule 3(ka)(i). In the peculiar facts of the case and in view of the vague affidavit filed by the State, the requirement of working on the sanctioned post shall be considered satisfied, however, I hasten to add that this shall not be cited as a precedence.
10. The writ-petition stands allowed, in the aforesaid terms. (Shree Chandrashekhar, J.) SI/ A.F.R.